Effective date: November 13, 1996
Guidelines issued by the Chairperson
pursuant to Section 65(3)of the Immigration Act
- UPDATE -
The definition of a Convention refugee in the Immigration Act does not include gender as an independent enumerated ground for a well-founded fear of persecution warranting the recognition of Convention refugee status. As a developing area of the law, it has been more widely recognized that gender-related persecution is a form of persecution which can and should be assessed by the Refugee Division panel hearing the claim. Where a woman claims to have a gender-related fear of persecution, the central issue is thus the need to determine the linkage between gender, the feared persecution and one or more of the definition grounds.
Most gender-related refugee claims brought forward by women raise four critical issues which these Guidelines seek to address:
- To what extent can women making a gender-related claim of fear of persecution successfully rely on any one, or a combination, of the five enumerated grounds of the Convention refugee definition?
- Under what circumstances does sexual violence, or a threat thereof, or any other prejudicial treatment of women constitute persecution as that term is jurisprudentially understood?
- What are the key evidentiary elements which decision-makers have to look at when considering a gender-related claim?
- What special problems do women face when called upon to state their claim at refugee determination hearings, particularly when they have had experiences that are difficult and often humiliating to speak about?
A. Determining the Nature and the Grounds of the Persecution
Obviously, not all claims brought forward by women are specifically gender-related. Women frequently claim fear of persecution in common with their male fellow citizens, though not necessarily of the same nature or at the same level of vulnerability, for such reasons as belonging to an ethnic or a linguistic minority, or membership in a political movement, a trade union or a religious denomination.
I. General Proposition
Although gender is not specifically enumerated as one of the grounds for establishing Convention refugee status, the definition of Convention refugee may properly be interpreted as providing protection for women who demonstrate a well-founded fear of gender-related persecution by reason of any one, or a combination of, the enumerated grounds.
Before determining the appropriate ground(s) applicable to the claim, decision-makers must first identify the nature of the persecution feared by the claimant.
Generally speaking, women refugee claimants may be put into four broad categories, although these categories are not mutually exclusive or exhaustive:Note 1
- Women who fear persecution on the same Convention grounds, and in similar circumstances, as men. That is, the risk factor is not their sexual status, per se, but rather their particular identity (i.e. racial, national or social) or what they believe in, or are perceived to believe in (i.e. religion or political opinion). In such claims, the substantive analysis does not vary as a function of the person's gender, although the nature of the harm feared and procedural issues at the hearing may vary as a function of the claimant's gender.
- Women who fear persecution solely for reasons pertaining to kinship, i.e. because of the status, activities or views of their spouses, parents, and siblings, or other family members . Such cases of "persecution of kin" typically involve violence or other forms of harassment against women, who are not themselves accused of any antagonistic views or political convictions, in order to pressure them into revealing information about the whereabouts or the political activities of their family members. Women may also have political opinions imputed to them based on the activities of members of their family.
- Women who fear persecution resulting from certain circumstances of severe discrimination on grounds of gender or acts of violence either by public authorities or at the hands of private citizens from whose actions the state is unwilling or unable to adequately protect the concerned persons. In the refugee law context, such discrimination may amount to persecution if it leads to consequences of a substantially prejudicial nature for the claimant and if it is imposed on account of any one, or a combination, of the statutory grounds for persecution. The acts of violence which a woman may fear include violence inflicted in situations of domestic violenceNote 2 and situations of civil war.Note 3
- Women who fear persecution as the consequence of failing to conform to, or for transgressing, certain gender-discriminating religious or customary laws and practices in their country of origin. Such laws and practices, by singling out women and placing them in a more vulnerable position than men, may create conditions for the existence of a gender-defined social group. The religious precepts, social traditions or cultural norms which women may be accused of violating can range from choosing their own spouses instead of accepting an arranged marriage, to such matters as the wearing of make-up, the visibility or length of hair, or the type of clothing a woman chooses to wear.
II. Grounds Other Than Membership in a Particular Social Group
There may be cases where a woman claims a fear of persecution because of her race and her gender. For example, a woman from a minority race in her country may be persecuted not only for her race, but also for her gender.
A woman who, in a theocracy for example, chooses not to subscribe to or follow the precepts of a state religion may be at risk of persecution for reasons of religion. In the context of the Convention refugee definition, the notion of religion may encompass, among other freedoms, the freedom to hold a belief system of one's choice or not to hold a particular belief system and the freedom to practise a religion of one's choice or not to practise a prescribed religion. In certain states, the religion assigns certain roles to women; if a woman does not fulfill her assigned role and is punished for that, she may have a well-founded fear of persecution for reasons of religion. A woman may also be perceived as expressing a political view (and have a political opinion imputed to her) because of her attitude and/or behaviour towards religion.
A gender-related claim of fear of persecution may be linked to reasons of nationality in situations where a national law causes a woman to lose her nationality (i.e.
citizenship) because of marriage to a foreign national. What would constitute good grounds for fearing persecution is not the fact of losing her nationality as such (notwithstanding that such laws are discriminatory to the extent that they do not apply to men married to foreign nationals), but the consequences she may suffer as a result.Note 4
A woman who opposes institutionalized discrimination against women, or expresses views of independence from male social/cultural dominance in her society, may be found to fear persecution by reason of her actual political opinion or a political opinion imputed to her (i.e. she is perceived by the agent of persecution to be expressing politically antagonistic views)
. Two considerations are of paramount importance when interpreting the notion of "political opinion":
- In a society where women are "assigned" a subordinate status and the authority exercised by men over women results in a general oppression of women, their political protest and activism do not always manifest themselves in the same way as those of men.Note 5
- The political nature of oppression of women in the context of religious laws and rituals should be recognized. Where tenets of the governing religion in a given country require certain kinds of behaviour exclusively from women, contrary behaviour may be perceived by the authorities as evidence of an unacceptable political opinion that threatens the basic structure from which their political power flows.Note 6
III. Membership in a Particular Social Group
In considering the application of the "membership in a particular social group" ground, decision-makers should refer to the Supreme Court of Canada decision in Ward.Note 7 The Ward decision indicated three possible categories of "particular social group":
- groups defined by an innate or unchangeable characteristic;
- groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and
- groups associated by a former voluntary status, unalterable due to its historical permanence.
The Court gave examples of the three categories as follows:
The first category would embrace individuals fearing persecution on such bases as gender, linguistic background and sexual orientation, while the second would encompass, for example, human rights activists. The third branch is included more because of historical intentions, although it is also relevant to the anti-discrimination influences, in that one's past is an immutable part of the person.
Depending on the basis of the claim, women refugee claimants may belong to a group defined in any of these categories.
A further holding of the Ward decision is that a particular social group cannot be based solely on the common victimization of its members . A group is not defined solely by common victimization if the claimant's fear of persecution is also based on her gender, or on another innate or unchangeable characteristic of the claimant.Note 8
Family as a particular social group
There is jurisprudential authority for recognizing claims grounded in familial affiliation (i.e. where kinship is the risk factor) as coming within the ambit of the "membership in a particular social group" category. See, for example, Al-Busaidy, Talal Ali Said v. M.E.I.,Note 9
…the [Immigration and Refugee] Board has committed reviewable error in not giving due effect to the applicant's uncontradicted evidence with respect to his membership in a particular social group, namely, his own immediate family.
Gender-defined particular social group
There is increasing international support for the application of the particular social group ground to the claims of women who allege a fear of persecution solely by reason of their gender. See Conclusion no. 39 (XXXVI) Refugee Women and International Protection, 1985, where the Executive Committee of the United Nations High Commissioner for Refugees (UNHCR)…
(k) Recognized that States, in the exercise of their sovereignty, are free to adopt the interpretation that women asylum-seekers who face harsh or inhuman treatment due to their having transgressed the social mores of the society in which they live may be considered as a "particular social group" within the meaning of Article 1 A(2) of the 1951 United Nations Refugee Convention.Note 10
Application of the statutory ground
In evaluating the "membership in a particular social group" ground for a fear of gender-related persecution, two considerations are necessary:
- Most of the gender-specific claims involving fear of persecution for transgressing religious or social norms may be determined on grounds of religion or political opinion. Such women may be seen by the governing authorities or private citizens as having made a religious or political statement in transgressing those norms of their society, even though UNHCR Conclusion no. 39, above, contemplates the use of "particular social group" as an appropriate ground.
- For a woman to establish a well-founded fear of persecution by reason of her membership in a gender-defined particular social groupNote 11 under the first category in Ward (i.e. groups defined by an innate or unchangeable characteristic):
- The fact that the particular social group consists of large numbers of the female population in the country concerned is irrelevant -- race, religion, nationality and political opinion are also characteristics that are shared by large numbers of people.
- Gender is an innate characteristicNote 12 and, therefore, women may form a particular social group within the Convention refugee definition. The relevant assessment is whether the claimant, as a woman, has a well-founded fear of persecution in her country of nationality by reason of her membership in this group.
- Particular social groups comprised of sub-groups of women may also be an appropriate finding in a case involving gender-related persecution. These particular social groups can be identified by reference to factors, in addition to gender, which may also be innate or unchangeable characteristics. Examples of other such characteristics are age, race, marital status and economic status. Thus, for example, there may be sub-groups of women identified as old women, indigenous women, single women or poor women. In determining whether these factors are unchangeable, consideration should be given to the cultural and social context in which the woman lives, as well as to the perception of the agents of persecution and those responsible for providing state protection.
- Because refugee status is an individual remedy, the fact that a claim is based on social group membership may not be sufficient in and of itself to give rise to refugee status. The woman will need to show that she has a genuine fear of harm, that one of the grounds of the definition is the reason for the feared harm, that the harm is sufficiently serious to amount to persecution, that there is a reasonable possibility that the feared persecution would occur if she was to return to her country of origin and that she has no reasonable expectation of adequate national protection.
B. Assessing the Feared Harm
Claims involving gender-related fear of persecution often fall quite comfortably within one of the five grounds of the Convention refugee definition. The difficulty sometimes lies in establishing whether the various forms of prejudicial treatment or sanctions imposed on women making such claims come within the scope of the concept of "persecution".
The circumstances which give rise to women's fear of persecution are often unique to women.Note 13 The existing bank of jurisprudence on the meaning of persecution is based, for the most part, on the experiences of male claimants. Aside from a few cases of rape, the definition has not been widely applied to female-specific experiences, such as infanticide, genital mutilation,Note 14 bride-burning, forced marriage,Note 15 domestic violence,Note 16 forced abortion or compulsory sterilization.Note 17
The fact that violence, including sexual and domestic violence, against women is universal is irrelevant when determining whether rape, and other gender-specific crimes constitute forms of persecution. The real issues are whether the violence -- experienced or feared -- is a serious violation of a fundamental human right for a Convention groundNote 18 and in what circumstances can the risk of that violence be said to result from a failure of state protection.Note 19
The social, cultural, traditional and religious norms and the laws affecting women in the claimant's country of origin ought to be assessed by reference to human rights instruments which provide a framework of international standards for recognizing the protection needs of women. What constitutes permissible conduct by the agent of persecution towards women may be determined, therefore, by reference to international instruments such as:
- Universal Declaration of Human Rights
- International Covenant on Civil and Political Rights
- International Covenant on Economic, Social and Cultural Rights
- Convention on the Elimination of All Forms of Discrimination Against WomenNote 20
- Convention on the Political Rights of Women
- Convention on the Nationality of Married Women
- Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
- Declaration on the Elimination of Violence Against WomenNote 21
A woman's claim to Convention refugee status cannot be based solely on the fact that she is subject to a national policy or law to which she objects. The claimant will need to establish that:
- the policy or law is inherently persecutory; or
- the policy or law is used as a means of persecution for one of the enumerated reasons; or
- the policy or law, although having legitimate goals, is administered through persecutory means; or
- the penalty for non-compliance with the policy or law is disproportionately severe.Note 22
C. Evidentiary Matters
When an assessment of a woman's claim of gender-related fear of persecution is made, the evidence must show that what the claimant genuinely fears is persecution for a Convention reason as distinguished from random violence or random criminal activity perpetrated against her as an individual. The central factor in such an assessment is, of course, the claimant's particular circumstances in relation to both the general human rights record of her country of origin and the experiences of other similarly situated women. Evaluation of the weight and credibility of the claimant's evidence ought to include evaluation of the following considerations, among others:
- A gender-related claim cannot be rejected simply because the claimant comes from a country where women face generalized oppression and violence and the claimant's fear of persecution is not identifiable to her on the basis of an individualized set of facts. This so-called "particularized evidence rule" was rejected by the Federal Court of Appeal in Salibian v. M.E.I.,Note 23 and other decisions.
- Decision-makers should consider evidence indicating a failure of state protection if the state or its agents in the claimant's country of origin are unwilling or unable to provide adequate protection from gender-related persecution.Note 24 If the claimant can demonstrate that it was objectively unreasonable for her to seek the protection of her state, then her failure to approach the state for protection will not defeat her claim. Also, the fact that the claimant did or did not seek protection from non-government groups is irrelevant to the assessment of the availability of state protection.Note 25
When considering whether it is objectively unreasonable for the claimant not to have sought the protection of the state, the decision-maker should consider, among other relevant factors, the social, cultural, religious, and economic context in which the claimant finds herself. If, for example, a woman has suffered gender-related persecution in the form of rape, she may be ostracized from her community for seeking protection from the state. Decision-makers should consider this type of information when determining if the claimant should reasonably have sought state protection.
In determining whether the state is willing or able to provide protection to a woman fearing gender-related persecution, decision-makers should consider the fact that the forms of evidence which the claimant might normally provide as "clear and convincing proof" of state inability to protect, will not always be either available or useful in cases of gender-related persecution.
For example, where a gender-related claim involves threats of or actual sexual violence at the hands of government authorities (or at the hands of non-state agents of persecution, where the state is either unwilling or unable to protect), the claimant may have difficulty in substantiating her claim with any "statistical data" on the incidence of sexual violence in her country.
In cases where the claimant cannot rely on the more standard or typical forms of evidence as "clear and convincing proof" of failure of state protection, reference may need to be made to alternative forms of evidence to meet the "clear and convincing" test. Such alternative forms of evidence might include the testimony of women in similar situations where there was a failure of state protection, or the testimony of the claimant herself regarding past personal incidents where state protection did not materialize.
- A change in country circumstances, generally viewed as a positive change, may have no impact, or even a negative impact, on a woman's fear of gender-related persecution. In situations where a woman's fear is related to personal-status laws or where her human rights are being violated by private citizens, a change in country circumstances may not mean a positive change for the woman, as these areas are often the last to change. An assessment should be made of the claimant's particular fear and of whether the changes are meaningful and effective enough for her fear of gender-related persecution to no longer be well-founded.Note 26
- In determining the reasonableness of a woman's recourse to an internal flight alternative (IFA), decision-makers should consider the ability of women, because of their gender, to travel safely to the IFA and to stay there without facing undue hardship .Note 27 In determining the reasonableness of an IFA, the decision-makers should take into account factors including religious, economic, and cultural factors, and consider whether and how these factors affect women in the IFA.
D. Special Problems at Determination Hearings
Women refugee claimants face special problems in demonstrating that their claims are credible and trustworthy. Some of the difficulties may arise because of cross-cultural misunderstandings. For example:
- Women from societies where the preservation of one's virginity or marital dignity is the cultural norm may be reluctant to disclose their experiences of sexual violence in order to keep their "shame" to themselves and not dishonour their family or community.Note 28
- Women from certain cultures where men do not share the details of their political, military or even social activities with their spouses, daughters or mothers may find themselves in a difficult situation when questioned about the experiences of their male relatives.Note 29
- Women refugee claimants who have suffered sexual violence may exhibit a pattern of symptoms referred to as Rape Trauma Syndrome,Note 30 and may require extremely sensitive handling. Similarly, women who have been subjected to domestic violence may exhibit a pattern of symptoms referred to as Battered Woman Syndrome and may also be reluctant to testify.Note 31 In some cases it will be appropriate to consider whether claimants should be allowed to have the option of providing their testimony outside the hearing room by affidavit or by videotape, or in front of members and refugee claims officers specifically trained in dealing with violence against women. Members should be familiar with the UNHCR Executive Committee Guidelines on the Protection of Refugee Women.Note 32
Framework of Analysis
- Assess the harm feared by the claimant. Does the harm feared constitute persecution?
- For the treatment to likely amount to persecution, it must be a serious form of harm which detracts from the claimant's fundamental human rights.
- To assist decision-makers in determining what kinds of treatment are considered persecution, an objective standard is provided by international human rights instruments. The following instruments, among others, may be considered:
- Universal Declaration of Human Rights,
- International Covenant on Civil and Political Rights
- International Covenant on Economic, Social and Cultural Right
- Convention on the Elimination of All Forms of Discrimination Against Women
- Convention on the Political Rights of Women,
- Convention on the Nationality of Married Women
- Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
- Declaration on the Elimination of Violence Against Women
- Ascertain whether the claimant's fear of persecution is based on any of the grounds, singly or in combination, enumerated in the Convention refugee definition. Considerations:
- It is necessary to ascertain the characteristic of the claimant which places her or members of her group at risk, and to ascertain the linkage of that characteristic to a Convention ground.
- Gender is an innate characteristic and it may form a particular social group.
- A subgroup of women may also form a particular social group. Women in these particular social groups have characteristics (possibly innate or unchangeable) additional to gender, which make them fear persecution.
- The gender-defined group cannot be defined solely by the fact that its members share common persecution.
- Determine whether the claimant's fear of persecution is well-founded. This includes an assessment of the evidence related to the ability or willingness of the state to protect the claimant and, more generally, the objective basis of the claim. Considerations:
- There may be little or no documentary evidence presented with respect to the inadequacy of state protection as it relates to gender-related persecution. There may be a need for greater reliance on evidence of similarly situated women and the claimant's own experiences.
- The claimant need not have approached non-state organizations for protection.
- Factors including the social, cultural, religious, and economic context in which the claimant finds herself should be considered in determining whether it was objectively unreasonable for the claimant not to have sought state protection.
- Where a woman's fear relates to personal-status laws or where her human rights are being violated by private citizens, an otherwise positive change in country conditions may have no impact, or even a negative impact, on a woman's fear of gender-related persecution.
- If required, determine whether there is a possibility of an internal flight alternative. Considerations:
- Whether there would be undue hardship for the claimant, both in reaching the location of the IFA and in establishing residence there.
- Religious, economic, social and cultural factors, among others, may be relevant in determining the reasonableness of an IFA for a woman fearing gender-related persecution.
Please note that all of the sources referred to in the notes can be found in the IRB Documentation Centres.