Domestic violence and gender-based persecution: how refugee adjudicators judge women seeking refuge from spousal violence--and why reform is needed.

Author:MacIntosh, Constance
 
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Abstract

This report is an effort to address information gaps regarding how gendered claims are addressed by adjudicators at Canada's Refugee Protection Division of the Immigration and Refugee Board of Canada (the RPD). It looks at one specific type of gendered claim: persecution through domestic or intimate violence. The study considers all the RPD decisions from 2004 to 2009 and judicial reviews from 2005 to 2009 that were reported in the Quicklaw LexisNexis service. These decisions are analyzed both quantitatively and qualitatively.

This report finds adjudicators consistently identify domestic violence as a form of gendered persecution that can form a nexus to a convention ground. However, despite contrary directions from the Gender Guidelines, adjudicators often fail to recognize the social, cultural, economic, and psychological dynamics of domestic abuse as legally relevant for their assessment of state protection. There is a striking failure on this account when it comes to determining if it was reasonable to expect the claimant to seek state protection.

This report presents data on factors such as the rates at which adjudicators consider the adequacy of women's shelters and the responsiveness of local police to complaints. As well as identifying the frequency and grounds for which judicial reviews are granted, this report also presents a series of recommendations for reform. These recommendations identify where studies are needed, how the Gender Guidelines need reform to make them a helpful instrument, and how training and support for PRD adjudicators needs to be enhanced.

Abstract

Le present article tente de combler des lacunes documentaires tenant a la facon dont les juges de la Section de la protection des refugies (SPR) a la Commission de l'immigration et du statut de refugie du Canada traitent les revendications genrees. Un type particulier de revendication genree est examine : la persecution par la violence domestique ou conjugale. L'etude considere l'ensemble des decisions de la SPR de 2004 a 2009 et des commentaires judiciaires de 2005 a 2009 signales dans le service LexisNexis Quicklaw. Ces decisions sont analysees a la fois quantitativement et qualitativement. Il est constate que les juges identifient systematiquement la violence domestique comme forme de persecution genree, y trouvant motif a s'appuyer sur la Convention. Cependant, malgre les instructions contraires que renferment les directives sur le genre, les juges omettent souvent de reconnaitre la dynamique sociale, culturelle, economique et psychologique de la violence conjugale comme juridiquement pertinente pour leur evaluation de la protection de l'Etat. Il y a un echec frappant a cet egard quand il s'agit de determiner s'il eut ete raisonnable de s'attendre que le demandeur d'asile cherche la protection de l'Etat. L'auteure presente des donnees sur des facteurs tels que la frequence a laquelle les juges considerent le caractere adequat des refuges pour femmes et l'aptitude de la police locale a reagir aux plaintes. Tout en identifiant la frequence et les motifs pour lesquels les controles judiciaires sont accordes, l'auteure presente une serie de recommandations en vue d'une reforme. Ces recommandations indiquent ou des etudes sont necessaires, comment reformer les directives sur le genre pour en faire un instrument utile et comment la formation et le soutien des juges de la SPR doivent etre renforces.

Introduction and Overview of Findings

This report presents disturbing findings about how the refugee claims of women fleeing domestic violence are treated by adjudicators at the Immigration and Refugee Board of Canada. Although the Minister of Citizenship and Immigration is required to report to Parliament on the gendered impact of the Immigration and Refugee Protection Act, very little--if any--information has been synthesized and made public on this issue. The study underlying this report was designed to begin to fill this information gap--and the data presented in this report indicates that reform is urgently needed.

From 2004 to 2009 there were a total of 135 decisions by adjudicators of the Refugee Protection Division of the Immigration and Refugee Board CRPD") that were reported in the LexisNexis Quicklaw service where a woman sought protection from spousal violence. Three of those women were granted refuge. One hundred thirty-two claimants were rejected. The majority of these women were rejected on the basis that they had failed to rebut the presumption that their home state could protect them.

This report takes a quantitative and qualitative look at these decisions, with a particular emphasis on decisions that turned on state protection. It shows that RPD adjudicators are inconsistent in their adherence to the Gender Guidelines that were drafted by the Chairperson of the Immigration and Refugee Board (IRB) to guide the decision-making process when gender-based claims are made. There is some tendency to de-gender domestic violence claims by treating them like other cases of private criminality. In particular, adjudicators often fail to meaningfully engage with the complex social, cultural, and economic dynamics that impact on how victims of domestic violence are able to seek state protection. This puts the defensibility of these decisions into doubt. It raises questions about whether women are being returned to violence.

These findings are supported by the divergence between the factors the Gender Guidelines indicate RPD adjudicators are to take into account, and the factors which RPD adjudicators seem to treat as relevant in their decisions. These findings are also supported by the judicial reviews reported in this area. For the period of 2005 to 2009, a stunning 44 per cent of judicial review applications of decisions reported in LexisNexis Quicklaw where a woman was fleeing domestic violence from a spouse or ex-spouse were allowed by the Federal Court. (2) The majority of these decisions turned on finding that the RPD adjudicator's conclusion--that the woman's state could protect her--was not reasonable.

A successful judicial review application does not mean that a claim will ultimately be accepted on its merits: it only results in the claim being sent back to the RPD for a rehearing. However, it is evident that decisions are not being made properly, and so current practices are likely placing women at serious risk of being returned to violence and perhaps death at the hands of their prior spouse's.

This report makes many recommendations to try to bring the decision-making practices of RPD adjudicators into line with Canada's mandate to protect. It specifically calls upon the IRB to aggressively revisit their training practices with RPD adjudicators for hearing gendered claims, for Citizenship and Immigration Canada (CIC) itself to finally engage in a substantive review of the gendered impacts of protection decisions, and for the Gender Guidelines to be revised to provide more direction to RPD adjudicators in several problem areas.

Context and Scope of Study

Background: The Debate on How Best to Address Gendered Persecution (a Journey from Rapt Attention to Quiet Neglect)

Canada is a signatory to many international human rights instruments, including the 1951 Refugee Convention (3) and the 1967 Refugee Protocol. (4) The Refugee Convention contains a definition of "refugees." It defines them as persons who are outside of their state of nationality (or residency) and who have a well-founded fear of being persecuted on the basis of five enumerated grounds. These five grounds are race, religion, nationality, membership in a particular social group, and political opinion. The feared persecution must leave the person unable or unwilling to seek protection from their state of nationality. This definition is coupled with ah obligation--that signatory states are not to return "refugees" to the state where they face such persecution. Refugee protection is thus a surrogate level of protection, extended when a citizen is not protected by their home state.

This definition of "refugee," where protection is only offered if the persecution is linked to one of the five enumerated grounds, has long been acknowledged as incomplete. The incompleteness arises because it does not fully represent Canadian values and understandings of fundamental human rights. Canadians and Canadian law reject the legitimacy of targeting or leaving people vulnerable to harm based upon more than these five grounds; we also reject such targeting on the basis of grounds such as gender, age, and sexual orientation.

The potential gap between the definition of refugee and Canadian understandings of the fundamental human rights of women was identified as a problem by refugee adjudicators shortly after Canada's Immigration and Refugee Board (IRB) was established in 1989. Canada was not alone in identifying this problem. Since at least 1985, the United Nations High Commissioner for Refugees (UNHCR) has been urging states to recognize that women may be persecuted on the basis of gender, and that such women deserve the protection of the international community. (5) To further this objective, UNHCR released guidelines in 1991 that illustrated how the definition of "refugee" in international law could embrace gender-based persecution.

Canada struck committees in the early 1990s which were to study the issue and recommend a course of action. (6) Although major legislative reform of Canadas immigration and refugee regime was pending, and a fresh set of laws was to be passed in 1994, Canada chose not to revise its definition of refugees to explicitly recognize "gender" as a ground of persecution for which protection may be offered. Instead it was decided that the Chairperson of the IRB would exercise her statutory authority (7) and issue guidelines to direct adjudicators hearing refugee claims where the persecution is gender-related. This decision was...

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