- Note 1
See generally M. Meyer, "Oppression of Women and Refugee Status", in
Proceedings of the International Seminar on Refugee Women (Amsterdam: Dutch Refugee Council, 1985) at pp. 30-33, and A.B. Johnsson, "The International Protection of Women Refugees - A Summary of Principal Problems and Issues" (1989)
International Journal of Refugee Law 221, at pp. 223-224, for a more detailed discussion of the different categories of women refugee claimants. Similar categories have been used in the Amnesty International report,
Women in the Front Line: Human Rights Violations Against Women (New York: Amnesty International Publications, 1991) at pp.-3, in enumerating human rights violations against women.
Return to note 1 referrer
- Note 2
In this context, domestic violence is meant to include violence perpetrated against women by family members or other persons with whom the woman lives.
Return to note 2 referrer
- Note 3
See C. Niarchos, "Women, War and Rape: Challenges Facing the International Tribunal for the Former Yugoslavia" (1995), 7
Human Rights Quarterly 649. With respect to the former Yugoslavia,
At several levels, the rapes reflect the policy of "ethnic cleansing", rape is used as a means to terrorize and displace the local population, to force the birth of children of mixed "ethnic" descent in the group, and to demoralize and destroy. The rapes are also an expression of misogyny: women are targeted not simply because they are the "enemy" but also because they are women. Gender is essential to the method of assault. (at
The author concludes that "Women's suffering in war is specifically related to gender -- women are raped, forced into prostitution, forcibly impregnated." (at
See also the Chairperson's
Guidelines on Civilian Non-Combatants Fearing Persecution in Civil War Situations, Immigration and Refugee Board, Ottawa, Canada, March 7, 1996.
Return to note 3 referrer
- Note 4
A separate issue to be determined is whether the woman concerned has acquired her spouse's nationality, thereby enabling her to avail herself of the protection of that country.
Return to note 4 referrer
- Note 5
See F. Stairs & L. Pope, "No Place Like Home: Assaulted Migrant Women's Claims to Refugee Status" (1990) 6
Journal of Law and Social Policy 148, at
p. 163, where the authors assert that, "Where an ostensibly non-political act such as choice of dress is seen to in fact be political in nature, it may provide the basis for a claim to refugee status.""
J. Greatbatch, in "The Gender Difference: Feminist Critiques of Refugee Discourse" (1989)
International Journal of Refugee Law 518, gives examples of how the refusal by Iranian women to conform to the dress code can be viewed as opposition to the Iranian government, thereby constituting a political act. The author also discusses the development of Chilean communal kitchens and co-operative nurseries and the search for missing relatives as examples of how Chilean women demonstrated their resistance to the Pinochet regime.
Shahabaldin, Modjgan v.
M.E.I. (IAB V85-6161), MacLeod, Mawani, Singh, March 2, 1987, where the former Immigration Appeal Board found the claimant to be a Convention refugee on the basis of her political opinion, because she opposed the Iranian laws governing dress.
CRDD T90-01845, Jackson, Wright (dissenting in part), December 21, 1990, the Refugee Division was of the view that the claimant's opposition to the government's enforcement of the dress laws, "could possibly result in her being persecuted because of political opinion should she be returned to Iran." The panel noted that Iranian women are subject to "extreme discrimination".
Return to note 5 referrer
- Note 6
M.E.I.,  2
F.C. 42 (T.D.). In this case, the Court said that "I consider that in the case at bar the female applicant has demonstrated that her fear of persecution is connected to her political opinion. In a country where the oppression of women is institutionalized any independent point of view or act opposed to the imposition of a clothing code will be seen as a manifestation of opposition to the established theocratic regime."
Return to note 6 referrer
- Note 7
Canada (Attorney General) v. Ward,  2
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- Note 8
The Federal Court of Canada has found "women subject to domestic abuse" to be a particular social group in two cases --
M.C.I.,  2
F.C. 55 (T.D.) and
M.E.I. (1995), 29
Imm. L.R. (2d) 156 (T.D.). The issue which must then be addressed is whether the claimant's fear of persecution is well-founded.
Return to note 8 referrer
- Note 9
Imm. L.R. (2d) 119 (F.C.A.) at 121.
The former Immigration Appeal Board also considered the family as constituting a "particular social group" in
M.E.I. (1979), 31
N.R. 121 (F.C.A.),
Marie Mabel De La v.
M.E.I. (IAB 80-6330), Hlady, Weselak, Howard, April 29, 1981, and in
Zarketa, Ignacio v.
M.E.I. (IAB M81-9776), D. Davey, Suppa, Tisshaw, February 6, 1985.
Several Refugee Division decisions have also found women to be members of a particular social group, the family. See, for example,
CRDD M89-02465, Hebert, Champoux-Ohrt (dissenting), January 4, 1990, and
CRDD T89-03943, Kapasi, Jew, July 25, 1990, where a political opinion was imputed to the Somali claimant because of the actions of her brothers. See also
CRDD M89-00057, Wills, Gauthier, February 16, 1989, where the Iranian claimant was found to be a member of the social group, "a pro-Shah family", and
CRDD M89-00971, Wolfe, Hendricks, June 13,1989, where the Refugee Division found the Peruvian claimant to be a member of a particular social group, her family. In
CRDD M89-01098, Van der Buhs, Lamarche, June 14, 1989, the Sri Lankan claimant was also found to be a refugee because she was a young Tamil in a Tamil family.
CRDD T89-02313, T89-02314, T89-02315, Teitelbaum (dissenting), Sri-Skanda-Rajah, October 17, 1990, the Refugee Division found that the Guatemalan claimant was found to be a member of the social group, "targeted family". The Refugee Division, in
CRDD C90-00299, C90-00300, Lo, Pawa, December 8,1990, also found a Salvadoran claimant to belong to a particular social group, her husband's family.
Return to note 9 referrer
- Note 10
In July 1991, the
UNHCR Executive Committee released
Guidelines on the Protection of Refugee Women, EC/SCP/67 (July 22, 1991). These guidelines stress that women,
…fearing persecution or severe discrimination on the basis of their gender should be considered a member of a social group for the purposes of determining refugee status. Others may be seen as having made a religious or political statement in transgressing the social norms of their society.
Information Note submitted by the High Commissioner with the release of the above
Guidelines, it was noted that "ensuring the protection of refugee women requires compliance not only with the 1951
Convention and its 1967
Protocol, but also with other relevant international instruments." (at
During its 41st session in 1990, the
UNHCR Executive Committee stated that severe discrimination experienced by women, prohibited by the
Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), can form the basis for the granting of refugee status. The importance of documentation regarding gender-based persecution and its consequences in the countries of origin of refugee women was discussed. See, in this regard, the
UNHCR Executive Committee,
Note on Refugee Women and International Protection, EC/SCP/59 (August 28, 1990) at
UNHCR has noted repeatedly that refugee women have special needs in the area of protection. See, for example, the discussion at the 41st session in the
Note on Refugee Women and International Protection, cited above, at pp. 2-4. See also the United Nations General Assembly, Executive Committee of the High Commissioner's Programme,
Report on Refugee Women, A/AC.96/727 (July 19, 1989) at
It is interesting to observe that the European Parliament, as early as984, had passed a resolution similar to the985
UNHCR Resolution. The European Parliament called upon member states "to apply the
UN treaty of 1951, as well as the 1967 Protocol regarding the status of refugees, in accordance with this interpretation." For a discussion of the resolution of the European Parliament, see the
Proceedings of the International Seminar on Refugee Women (Amsterdam: Dutch Refugee Council, 1985) at
In 1984, the Dutch Refugee Council issued the following policy directive:
It is the opinion of the Dutch Refugee Council that persecution for reasons of membership of a particular social group, may also be taken to include persecution because of social position on the basis of sex. This may be especially true in situations where discrimination against women in society, contrary to the rulings of international law, has been institutionalized and where women who oppose this discrimination, or distance themselves from it, are faced with drastic sanctions, either from the authorities themselves, or from their social environment, where the authorities are unwilling or unable to offer protection.
Return to note 10 referrer
- Note 11
Although the former Immigration Appeal Board decided few claims dealing specifically with gender-related persecution, there is one decision that merits discussion. In
Incirciyan, Zeyiye v.
M.E.I. (IAB M87-1541X, M87-1248), P. Davey, Cardinal, Angé, August 10, 1987, an Armenian claimant and her daughter who had been living in Turkey were found to be refugees on the basis of membership in a particular social group "made up of single women living in a Moslem country without the protection of a male relative (father, brother, husband, son)." Since the claimant had requested and had been refused the protection of the Turkish authorities on several occasions, the Board concluded that there was a lack of adequate state protection.
On several occasions, the Refugee Division has found women refugee claimants to have a well-founded fear of persecution by reason of their membership in a particular social group. In
CRDD T89-06969, T89-06970, T89-06971, Nicholson, Bajwa, July 17, 1990, the Refugee Division found that the claimant and her two daughters had a well-founded fear of persecution on the basis of their membership in a particular social group, "consisting of women and girls who do not conform to Islamic fundamentalist norms." In
CRDD U91-04008, Goldman, Bajwa, December 24, 1991, the Somali claimant was found to be a refugee on the basis of her membership in a particular social group, "young women without male protection." The Refugee Division, in
CRDD T89-02248, Maraj, E.R. Smith, April 3, 1990, found the claimant to be a member of the particular social group composed of women who belong to a "women's organization objecting to the treatment of women in Iran."
Return to note 11 referrer
- Note 12
Ward decision, the Court described the first of the three possible categories of particular social group as "groups defined by an innate or unchangeable characteristic." The Court held that this category would include individuals fearing persecution on such basis as gender, linguistic background and sexual orientation. In
CRDD T93-05935/36, Liebich, Larke, December 31, 1993, the Refugee Division found that a woman who was a divorced mother living under the jurisdiction of Sharia law had a well-founded fear of persecution by reason of her membership in a particular social group of "women." In
CRDD T93-12198/12199/12197, Ramirez, McCaffrey, May 10, 1994 (reasons signed July 13, 1994), the panel found that "women" was a particular social group.
Return to note 12 referrer
- Note 13
Several commentators argue that the
Convention refugee definition,
…ignores the persecution that girls and women endure, even die under, for stepping out of the closed circle of social norms; choosing a husband in place of accepting an arranged marriage; undergoing an abortion where it is illegal; becoming politically active in the women's movement. Women are also abandoned or persecuted for being rape victims, bearing illegitimate children or marrying men of different races. See L. Bonnerjea,
Shaming the World: The Needs of Women Refugees (London: Change, 1985) at
See also Greatbatch,
supra, footnote 3, at
p. 218, and Stairs and Pope,
supra, footnote 3, at pp. 163-164.
Return to note 13 referrer
- Note 14
CRDD T93-12198/12199/12187, Ramirez, McCaffrey, May 10, 1994 (reasons signed July 13, 1994), the Refugee Division concluded that the claimant's right to personal security would be grossly infringed if she were forced to undergo female genital mutilation. The panel found that this was a contravention of Article 3 of the
Universal Declaration of Human Rights and the
United Nations Convention on the Rights of the Child.
The Federal Court of Canada in
Annan v. Canada  3
F.C. 25 (T.D.) in considering the case of a woman fearing female genital mutilation stated that Ghana, "according to the documentary evidence, has failed to demonstrate any intention of protecting its female citizens from the horrific torture of excision practised at various places throughout the country."
Return to note 14 referrer
- Note 15
M.C.I.,  3
F.C. 60 (T.D.), the Court held that "women who are forced into marriages against their will have had a basic human right violated."
Return to note 15 referrer
- Note 16
CRDD in C93-00433, Wieler, Lazo, December 3, 1993, in dealing with the case of a woman fearing her husband and her family, found that the claimant's fear of "the violent behaviour of her husband condoned by that society, the traditional rituals which include the searing of her body with a heated instrument and the continuing domination and demands causing her to be enslaved" amounted to persecution.
Return to note 16 referrer
- Note 17
In L. Heise, "Crimes of Gender" (1989) 2
Worldwatch 12, the many forms of violence against women are discussed. The author notes that,
Every day, thousands of women are beaten in their homes by their partners, and thousands more are raped, assaulted and sexually harassed. And, there are the less recognized forms of violence: In Nepal, female babies die from neglect because parents value sons over daughters; in Sudan, girls' genitals are mutilated to ensure virginity until marriage; and in India, young brides are murdered by their husbands when parents fail to provide enough dowry. In all these instances, women are targets of violence because of their sex. This is not random violence; the risk factor is being female.
With respect to compulsory or forced sterilization, the Federal Court of Canada in
M.E.I.,  2
F.C. 314 (C.A.) held that "The forced sterilization of women is a fundamental violation of basic human rights. It violates Articles 3 and 5 of the United Nations Universal Declaration of Human Rights…The forced sterilization of a woman is a serious and totally unacceptable violation of her security of the person. Forced sterilization subjects a woman to cruel, inhuman and degrading treatment."
Return to note 17 referrer
- Note 18
When considering whether sexual violence or domestic violence (both of which may involve mental and physical suffering) are forms of torture or cruel, inhuman and degrading treatment amounting to persecution, decision-makers should examine th
UNConvention Against Torture and Other Cruel, Inhuman and Degrading Treatment and Punishment. This Convention which, like the 1951 Refugee Convention, incorporates the principle of non-refoulement, defines "torture" as:
…any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from [her] or a third person information or a confession, punishing [her] for an act [she] or a third person has committed or is suspected of having committed, or intimidating or coercing [her] or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. (Article 1)
Reference should also be made to Article 16 as it relates to "…other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in Article 1…".
Return to note 18 referrer
- Note 19
In their influential study,
Sexual Violence Against Refugee Women (The Hague, Ministry for Social Affairs, 1984) at pp. 6 & 7, C.E.J. de Neef & S.J. de Ruiter document the manner in which sexual violence "may have played a role in the flight from the country of origin in any of a variety of ways:
- It may have been part of the way in which the persecution based on her political conviction was expressed; (When a woman has been imprisoned in the country of origin she may have suffered sexual violence. Both for men and women in a number of countries sexual violence is an integral part of the methods of torture.)
- It may be that a woman by not conforming to the cultural traditions in the country of origin which prescribe a certain behaviour for women is fearful to be subjected to violence. (An example of this type of violence is decapitating or stoning women who have committed adultery in some Islamic cultures.)
- It may be that through the threat of, or through actual sexual violence against women, conflicts between different political or religious groups are decided. (…Sexual violence against women here can be a means to hurt an entire group and to reinforce the superiority of the one group over the other.)
- It may be that women who have fled because of conditions of war or of a reign of terror…are a victim of sexual violence because they are exceptionally vulnerable when they are deprived of the men's traditional protection and have lost their status of wife."
The Dutch Refugee Council publication,
Sexual Violence: You Have Hardly Any Future Left (Amsterdam: Dutch Refugee Council, 1987), contains a excellent discussion of the meaning and forms of sexual violence. Excerpts from this publication form part of the documentation for the workshop, "Socio-cultural Context to Refugee Claims made by Women - Case Studies: Iran, Somalia and Latin America," organized by the Toronto I
CRDD Working Group on Women Refugee Claimants, Toronto, June 21, 1990. The documentation is available in the Board's regional Documentation Centres.
Return to note 19 referrer
- Note 20
During its 41st session in 1990, the
UNHCR Executive Committee stated that severe discrimination experienced by women and prohibited by
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) can form the basis for the granting of refugee status. The importance of documentation regarding gender-based persecution and its consequences in the countries of origin of refugee women was discussed. See, in this regard, the
UNHCR Executive Committee,
Note on Refugee Women and International Protection, EC/SCP/59 (August 28, 1990) at
The Refugee Division in T91-01497, T91-01498, Ramirez, Toth, August 9, 1994 (reasons signed November 1, 1994), referred to the
Convention on the Elimination of All Forms of Discrimination Against Women in finding that the claimants, from Bulgaria, had a well-founded fear of persecution. The adult claimant had been subjected to spousal abuse throughout her marriage in the form of battering, threats of death, and rape. The panel held that despite Bulgaria's signing of the above Convention, the authorities had repeatedly ignored the violence against the adult claimant. The panel also referred to several other international human rights instruments and to the
Guidelines on women refugee claimants, and held that the adult claimant had "an internationally protected right to protection from domestic violence and failure to give that protection is a form of gender-based discrimination."
Return to note 20 referrer
- Note 21
Declaration on the Elimination of Violence Against Women provides in Article 2 that
Violence against women shall be understood to encompass, but not be limited to, the following:
- Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation;
- Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere;
- Physical, sexual and psychological violence perpetrated or condoned by the State, wherever it occurs.
Return to note 21 referrer
- Note 22
Fathi-Rad, Farideh v.
no. IMM-2438-93), McGillis, April 13, 1994, the Court had to deal with the issue of whether the Islamic dress code is a policy of general application applied to all citizens of Iran. In the Court's view, "The Islamic dress code is a law applicable only to women in Iran. It dictates the manner in which Iranian women must dress to comply with the religious beliefs of the theocratic governing regime and prescribes punishments for any violation of the law. A law which specifically targets the manner in which women dress may not properly be characterized as a law of general application which applies to all citizens." In the alternative, the Court concluded that the punishment for minor infractions of the Islamic dress code was disproportionate to the objective of the law and, therefore, constituted persecution. Since the decision in
Fathi-Rad, the Documentation, Information and Research Branch,
IRB, has published a document entitled "Human Rights Brief: Women in the Islamic Republic of Iran", June 1994, which indicates that the dress code in Iran applies equally to men and women.
Return to note 22 referrer
- Note 23
F.C. 250 (C.A.) at 258.
Return to note 23 referrer
- Note 24
The Supreme Court of Canada in
Ward held that except in situations where the state is in a condition of complete breakdown, states must be presumed capable of protecting their citizens. The Court found that this presumption can be rebutted by "clear and convincing" evidence of the state's inability to protect.
Return to note 24 referrer
- Note 25
It is clear that the claimant's failure to seek protection from non-government groups can have no impact on the assessment of the availability of state protection. In certain circumstances, however, the fact that the claimant did not approach existing non-government organizations in her country of origin may have an impact on her credibility or, more generally, on the well foundedness of her claim.
Return to note 25 referrer
- Note 26
Yusuf, Sofia Mohamed v.
no. A-130-92), Hugessen, Strayer, Décary, January 9, 1995. See also Legal Services' Commentary on
Change of Circumstances,
IRB Legal Services, September 1994.
Return to note 26 referrer
- Note 27
M.E.I.,  1
F.C. 589, at
p. 598, where the Court ruled as follows: "The claimant cannot be required to encounter great physical danger or to undergo undue hardship in travelling there or in staying there." See also Legal Services' Commentary "
Internal Flight: When is it an Alternative?",
IRB Legal Services, April 1994.
Return to note 27 referrer
- Note 28
UNHCR Executive Committee notes that decision-makers should refrain from asking women refugee claimants for details of sexual abuse. They note that, "the important thing in establishing a well-founded fear of persecution is to establish that some form of it has occurred."
Guidelines on the Protection of Refugee Women,
supra, footnote 10, at
Return to note 28 referrer
- Note 29
In two cases in the Federal Court of Canada, the issue of the woman's place within her society and her lack of knowledge about the activities of male family members was addressed. In
M.E.I. (1994), 25
Imm. L.R. (2d) 186 (F.C.T.D.), the Court stated that in Somali culture it is often the case that a wife is not privy to information concerning her husband's occupation. In
Montenegro, Suleyama v.
no. IMM-3173-94), MacKay, February 29, 1996, the Court faulted the
CRDD for ignoring the claimant's explanation that her knowledge of her husband's political involvement in El Salvador was based entirely on what he had been willing to tell her, pointing out that "within their social order wives were not expected to question their husband's activities."
Return to note 29 referrer
- Note 30
UNHCR Executive Committee
Guidelines on the Protection of Refugee Women,
supra, footnote 10, at
p. 27, discuss the symptoms of Rape Trauma Syndrome as including "persistent fear, a loss of self-confidence and self-esteem, difficulty in concentration, an attitude of self-blame, a pervasive feeling of loss of control, and memory loss of distortion."
Return to note 30 referrer
- Note 31
F. Stairs & L. Pope, supra, footnote 5, at
p. 202, stress that decision-makers should be,
…sensitive to the fact that women whose children are attached to their claim may also be reticent to describe the details of their persecution in front of their children. Further, if the claimant's culture dictates that she should suffer battering silently, the use of an interpreter from her community may also intimidate her.
For a discussion of the battered woman syndrome see
R. v. Lavallee, 
S.C.R. 852. In
Lavallee, Madame Justice Wilson addressed the mythology about domestic violence and phrased the myth as "[e]ither she was not as badly beaten as she claims, or she would have left the man long ago. Or, if she was battered that severely, she must have stayed out of some masochistic enjoyment of it." The Court further indicated that a manifestation of the victimization of battered women is a "reluctance to disclose to others the fact or extent of the beatings". In
Lavallee, the Court indicated that expert evidence can assist in dispelling these myths and be used to explain why a woman would remain in a battering relationship.
Return to note 31 referrer
- Note 32
It should be noted that Amnesty International, in
Women in the Front Line: Human Rights Violations Against Women, supra, footnote 1, at
p. 54, recommends that:
In procedures for the determination of refugee status governments should provide interviewers trained to recognize the specific protection needs of women refugee and asylum-seekers.
Return to note 32 referrer