Clarity on gender-related persecution for refugee claimants

  • August 30, 2021

Refugee claimants who fear persecution based on gender face difficulties being recognized as a Convention refugee because the Immigration Act does not list gender as independent ground for a well-founded fear of persecution. However, in a proposed update to Immigration Refugee Board’s guidelines, the IRB recognizes gender-related persecution as a form of persecution that should be assessed when hearing a claim.

The guidelines are not mandatory, but decision-makers are expected to apply them when adjudicating or managing cases. That’s why it’s important to get the language right. In a letter to IRB Chairperson Richard Wex, the Immigration Law Section of the Canadian Bar Association outlines comments and suggestions for improving recent updates to the guidelines related to gender-based persecution.

Inclusion of all persons

While the Section appreciates framing the guidelines around gender-based claims instead of focusing only on women as survivors of gender-based violence, it suggests adding a reference to non-gender-specified persons. “The guideline should explicitly acknowledge the gender inequality, violence and discrimination that non-binary people face,” the letter reads.

Language that appears to make a distinction between women and girls and persons who identify as women and girls should also be changed, by removing the text in brackets “(and those who identify as such)” that gives the impression these individuals are an afterthought.

Similarly, the Section says, comments about violence against males that is relegated to footnotes ought to be included in the main text to help those using the guidelines better understand that concept.

Trust, body language and facial expressions

Survivors of gender-based violence may have difficulty confiding in a stranger, especially if the interview takes place at the end of a long and tiring journey to reach Canada. The guidelines already mention the need to take a trauma-informed approach to adjudication, but the Section recommends adding details “to clarify that it includes being mindful of body language and facial expressions and using the same vocabulary as the individual. Vocabulary, facial expressions and body language can impact a claimant’s perception of safety and security, and their comfort in sharing personal information with a stranger.”

People who have experienced gender-based violence may not always react in similar ways. For that reason, the language in the guidelines should be very clear on that issue. “The IRB should be mindful that not all persons who have been impacted by trauma recognize that. Others may recognize that they are traumatized, but may not know how this has impacted them, including how it affects their memory, recall and self-expression.”

It might go without saying that patience during hearings is necessary, but the CBA Section recommends saying it anyway, not just to suggest understanding and patience but to encourage officials to “aim to respond to the individual’s verbal cues and body language in a way that promotes trust and creates a safe space to facilitate the giving of testimony.”

Co-parties to a hearing

The Section notes that in certain circumstances gender-based violence may not be known to all members of a family. It recommends expanding the guidelines to indicate that when a person who has experienced gender-based violence asks a co-party to be excused, that the request be granted. “When there is question about the fairness of the proceeding, a conference could be held with the requesting party to ascertain the purpose and reasonableness of this request,” the letter reads.

CBA members know of cases in which ex-partners previously engaged in intimate partner violence were called as witnesses and ended up re-traumatizing survivors. There are also cases when allegations of violence or harm are false. The Section proposes to modify the guidelines to require enquiries into the nature of a relationship, “whether this witness was approached by the Hearings Officer or proactively contacted immigration authorities, and what the witness may stand to gain by acting as a witness.” Many factors, including divorce, child custody disputes or alleged infidelity may impact the credibility of a particular testimony, the Section says.