The Treatment of Women Under Canada’s Gender Guidelines in Judicial Reviews of Gender-Related Refugee Claims: 2003-2013

Abstract

Abstract

Women claiming refugee status in Canada must demonstrate to the Immigration and Refugee Board [IRB] that their claim is valid and plausible. Canada’s legislative framework acknowledges that gender-related persecution can qualify as a ground for refugee status under the United Nations Convention Relating to the Status of Refugees [Refugee Convention]. Specifically, the IRB’s Chairperson’s Guideline 4 – Women Refugee Claimants Fearing Gender-Related Persecution [Gender Guidelines] assist IRB decision-makers in deciding gender-related refugee claims by offering options for procedural accommodation and analytical guidance in the evaluation of gender-related claims. The Gender Guidelines aim to ensure decision-makers have “the degree of knowledge, understanding, and sensitivity” needed to make a “fair and correct judgment” of gender-related claims (Griffith v Canada (Minister of Citizenship and Immigration), [1999] FCJ No 1142 (QL)).

The purpose of this research is to critically examine the use of the Gender Guidelines in IRB decisions on gender-related refugee claims and Federal Court judicial reviews of those claims. Looking at 166 Federal Court of Canada judicial reviews of gender-related claims of persecution previously rejected at the IRB level from 2003 to 2013, I used a grounded theory methodological basis and content analysis approach informed by Michel Foucault’s insights on power relationships and Judith Butler’s insights on performativity to examine discursive deployment of gender in refugee determinations through the treatment of the Gender Guidelines. I examined four legal standards used in these judicial reviews of gender-related claim determination—credibility assessments, plausibility assessments, availability of state protection, and the availability of an internal flight alternative [IFA]. I analyzed the application of these standards and looked at how variables such as country of origin or type of persecution or extrajudicial factors such as Canadian political discourse and rigid understandings of gender identity result in inconsistent application of the Gender Guidelines, thereby violating women refugee claimants’ right to procedural fairness. Several recommendations are made for changes at both the IRB and Federal Court level to correct identified barriers and to ensure all claims related to gender-related persecution have a full and fair opportunity to provide evidence and have it considered on its merits.