McGill Law Journal ~ Revue de droit de McGill
THE CULTURE OF RIGHTS PROTECTION IN
CANADIAN REFUGEE LAW: EXAMINING THE
DOMESTIC VIOLENCE CASES
Efrat Arbel*
This article examines Canadian refugee law cas-
es involving domestic violence, analyzed through a
comparison with cases involving forced sterilization
and genital cutting. Surveying 645 reported decisions,
it suggests that Canadian adjudicators generally
adopted different methods of analysis in refugee cases
involving domestic violence, as compared with these
other claims. The article argues that Canadian adjudi-
cators rarely recognized domestic violence as a rights
violation in itself but, instead, demonstrated a general
predisposition toward finding domestic violence perse-
cution in cultural difference. That is, adjudicators
tended to recognize domestic violence claimants not as
victims of persecutory practices but rather as victims
of persecutory cultures. The article suggests that this
approach establishes incorrect criteria by which to
evaluate domestic violence claims, for two main rea-
sons. First, this approach does not accord due weight
to complex factors besides culture that make women
vulnerable to persecution in domestic settings. Second,
this approach erects legal and conceptual barriers for
women who cannot authentically narrate their experi-
ence through the script of cultural vulnerability or who
cannot present as victims of culture. The article pos-
its that characterizing the violence suffered by refugee
women as a product of culture does more than erect
barriers for refugee claimants; it also operates as a
protective device that suppresses the commonality of
domestic violence across cultures and elides its domes-
tic prevalence. The article concludes by suggesting
that this approach replicates problematic assumptions
about gender violence and gender difference that make
it harder to address domestic violence both abroad and
at home.
Cet article examine les cas canadiens de droit des r-
fugis impliquant de la violence familiale, analyss par le
biais dune comparaison avec les cas de strilisation force
et de mutilations gnitales. Parcourant 645 dcisions pu-
blies, il suggre que les arbitres canadiens ont en gnral
adopt diffrentes mthodes danalyse dans le cas des rfu-
gis de violence familiale, par rapport aux autres affaires.
Larticle soutient que les arbitres canadiens reconnaissent
rarement la violence domestique comme une violation des
droits en soi, mais au contraire, ont montr une prdisposi-
tion gnrale reconnatre des situations violence domes-
tique dans la diffrence culturelle. Autrement dit, les ar-
bitres ont tendance reconnatre les demandeurs subissant
de la violence conjugale non pas comme des victimes de
pratiques de perscution, mais plutt comme des victimes
de cultures perscutrices. Larticle suggre que cette ap-
proche tablit des critres errons dvaluation des allga-
tions de violence conjugale pour deux raisons principales.
Tout dabord, cette approche na pas accord assez
dimportance aux facteurs complexes, qui sadditionnent
la question la culture et qui rendent les femmes vulnrables
la perscution dans leur milieu familial. Ensuite, cette
approche rige des barrires juridiques et conceptuelles
pour les femmes qui ne peuvent pas authentiquement ra-
conter leur exprience travers le script de vulnrabilit
culturelle ou qui ne peuvent pas se prsenter comme des
victimes de leur culture . Larticle avance que la caract-
risation de la violence subie par les femmes rfugies
comme un produit de la culture fait plus que driger des
barrires pour les demandeurs dasile; il fonctionne gale-
ment comme un dispositif de protection qui supprime le ca-
ractre commun de la violence domestique travers les cul-
tures et lude sa prvalence locale. Larticle conclut en sug-
grant que cette approche reproduit des hypothses pro-
blmatiques de la violence entre les sexes et de la diffrence
des sexes qui rendent difficile la lutte contre la violence
domestique ltranger et la maison.
* SJD, Harvard Law School (2012); post-doctoral fellow, University of British Columbia
Faculty of Law. Thank you to Martha Minow and Joseph Singer, as well as to Cathe-
rine Dauvergne, Lisa Kerr, Vishaal Kishore, Anna Lund, Shaun Ramdin, and the
anonymous reviewers at the McGill Law Journal for their invaluable comments on ear-
lier drafts of this article. Research for this article was generously supported by the
Canada Program at the Harvard University Weatherhead Center for International Af-
fairs and by the Social Sciences and Humanities Research Council of Canada.
Citation: (2013) 58:3 McGill LJ 729 ~ Rfrence : (2013) 58 : 3 RD McGill 729
Efrat Arbel 2013
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Introduction
I.
II.
The Legal Framework
A. The Refugee Definition: An Overview
B. Finding a Human Rights Violation
C. Finding a Failure of State Protection
D. Grounds of Admission
1. Forced-Sterilization and Genital-Cutting Cases
2. Domestic Violence Cases
The Domestic Violence Cases: An Overview
A. Methodology
B. Finding a Human Rights Violation
C. Finding a Failure of State Protection
D. Grounds of Admission
1. Forced-Sterilization and Genital-Cutting Cases
2. Domestic Violence Cases
1. Forced-Sterilization and Genital-Cutting Cases
2. Domestic Violence Cases
III.
The Limits of Protection
A. Obscuring Factors Besides Culture
B. Constructing Refugee Women as Victims of
Culture
Conclusion
RIGHTS PROTECTION IN CANADIAN REFUGEE LAW 731
Introduction
The international refugee definition in the United Nations Convention
Relating to the Status of Refugees does not enumerate gender as a rec-
ognized ground of persecution.1 The definition requires claimants to
demonstrate a well-founded fear of persecution against which their home
state is unable or unwilling to protect, and which is linked to one of five
enumerated grounds: race, religion, nationality, membership of a par-
ticular social group or political opinion.2 Canada became the first state
signatory to the Refugee Convention to address this omission when, in
1993, the Immigration and Refugee Board (IRB) released guidelines on
Women Refugee Claimants Fearing Gender-Related Persecution.3 While
the Guidelines do not add gender to the definition, they outline a
framework for analysis, complete with substantive and procedural direc-
tives, for interpreting the definition in a gender-sensitive manner. One of
the Guidelines most profound contributions was the recognition that do-
mestic violence perpetrated by non-state actors can amount to persecution
and form the basis for a refugee claim. This recognition marked a sea
change in Canadas approach to refugee protection and extended refugee
status to countless women previously denied protection. It has been hailed
as one of the most remarkable achievements in Canadian legal history.4
In this article, in anticipation of the Guidelines twentieth anniver-
sary, I examine how Canadian adjudicators have approached refugee cas-
es involving domestic violence over the last two decades. My aim is to
evaluate whether the Guidelines goal of encouraging a gender-sensitive
refugee-determination process has been meaningfully realized in cases in-
volving domestic violence. I survey the publicly available refugee-
determination decisions involving domestic violence issued subsequent to
the Guidelines release, and examine these through a comparison with
cases involving forced sterilization and genital cutting. Examining 645
cases, I argue that over the last two decades, adjudicators have adopted
distinctly different methods of analysis in cases involving domestic vio-
lence as compared with these other gender-based claims. Most notably, in
cases involving forced sterilization and genital cutting, in keeping with
1 28 July 1951, 189 UNTS 137, art 1(A)(2), Can TS 1969 No 6 (entered into force 22 April
1954, accession by Canada 4 June 1967) [Refugee Convention].
2 Ibid.
3 Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution (Ottawa:
Immigration and Refugee Board, 1996), online: IRB
1993 version).
4 Sherene Razack, Domestic Violence as Gender Persecution: Policing the Borders of Na-
tion, Race, and Gender (1995) 8:1 CJWL 45 at 47.
732 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
the Guidelines directives, adjudicators consistently identified these prac-
tices as rights violations. In these cases, they generally recognized the
claimant as a refugee because she was victim of a persecutory practice. In
contrast, adjudicators rarely identified domestic violence as a rights viola-
tion in itself and demonstrated a general predisposition to finding perse-
cution in cultural difference. That is, adjudicators generally recognized
domestic violence claimants as refugees not because they were victims of
persecutory practices but because they were victims of persecutory cul-
tures.
While this approach has proven successful in securing protection for
certain refugee women, it establishes incorrect criteria by which to evalu-
ate domestic violence claims. I develop my analysis in four parts. In Part
I, I chart an overview of the principles governing gender-related refugee
claims, to provide context for discussion. In Part II, I detail the results of
my study and explain the different patterns of analysis emerging from the
domestic violence cases as compared with other gender claims. Based on
these findings, in Part III, I examine the domestic violence cases in more
detail. Through a close reading of select decisions, I identify two key prob-
lems with the adjudicative tendency to locate domestic violence persecu-
tion in cultural difference. First, I argue that by selectively blaming cul-
ture for refugee womens persecution, the cases do not accord due weight
to factors other than culture that make women vulnerable to domestic vio-
lence, such as material disparities, gender hierarchies, and existing power
arrangements. Second, I argue that this approach constructs non-Western
culture as a place where domestic violence occurs because of the so-called
inherent vulnerability of the women located in that cultural milieu. As a
result, women who cannot authentically narrate their experience of vio-
lence through the script of vulnerability face legal and conceptual barriers
in proving their refugee claims. In these two key respects, the domestic
violence cases promote an incorrect understanding of gender violence and
gender difference. They establish unduly narrow criteria by which to
evaluate womens vulnerability to domestic violence persecution and thus
risk excluding genuine refugees from protection.
Building on these critiques, in Part IV, I argue that the adjudicative
tendency to locate domestic violence persecution in cultural difference
both stems from and reflects a defensive anxiety. Unlike forced steriliza-
tion and genital cuttingexotic practices perceived to occur only in for-
eign countriesdomestic violence is also common within Canada. Domes-
tic violence claims thus cut along familiar lines of difference and cannot
easily be identified as rights violations in the Canadian legal lexicon.
Viewed in this light, the tendency to locate persecution in cultural differ-
ence can be seen as a protective device that distinguishes the violence suf-
fered by refugee women from the violence suffered by Canadian women.
The reluctance to inquire into broad power arrangements that make
RIGHTS PROTECTION IN CANADIAN REFUGEE LAW 733
women vulnerable to domestic violence abroad makes it easier to ignore
the prevalence of these same structures in Canada. In this key respect,
the approach adopted in the domestic violence cases operates to replicate
problematic assumptions about gender violence and gender difference,
while also making it harder to challenge these assumptions in the Cana-
dian legal discourse.
I conclude by arguing in favour of a discursive shift in the adjudicative
approach to domestic violence cases. I suggest that a re-examination of
the assumptions at play in these cases will allow Canadian legal actors to
view domestic violence in a more accurate light and will create a more so-
phisticated body of law that can better address gender violence claims.
Such an approach would better comply not only with the spirit of the
Guidelines but also with Canadian standards of equality and rights pro-
tection.
I. The Legal Framework
A. The Refugee Definition: An Overview
To advance a gender-related refugee claim, a claimant must first
demonstrate compliance with the refugee definition set out in article
1(A)(2) of the Refugee Convention, as amended by the 1967 Protocol Relat-
ing to the Status of Refugees.5 Article 1(A)(2) defines a refugee as a person
who
owing to well-founded fear of being persecuted for reasons of race,
religion, nationality, membership of a particular social group or po-
litical opinion, is outside the country of his nationality and is unable
or, owing to such fear, is unwilling to avail himself of the protection
of that country; or who, not having a nationality and being outside
the country of his former habitual residence as a result of such
events, is unable or, owing to such fear, is unwilling to return to it.
This definition is incorporated into domestic law, almost verbatim, via
section 96 of the Immigration and Refugee Protection Act (IRPA).6 The
5 31 January 1967, 606 UNTS 267, art 1, Can TS 1969 No 29 (entered into force 4 Octo-
ber 1967, accession by Canada 4 June 1969) (which eliminates the temporal and geo-
graphical limitations originally set out in the Refugee Convention and incorporates the
convention by reference).
6 SC 2001, c 27 [IRPA]. The IRPA definition differs from that set out in the Refugee Con-
vention as a result of some minorbut significantvariations in wording. Whereas the
Refugee Convention requires a claimant to demonstrate that she is a refugee owing to
well-founded fear of being persecuted (supra note 1, art 1(A)(2) [emphasis added]), the
IRPA standard is by reason of a well-founded fear of persecution (supra note 6, s 96
[emphasis added]). The locution owing to, versus by reason of, enforces different
734 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
definition involves a range of considerations but can be parsed into three
central components. Simplified, it requires proof of (i) a well-founded fear
of persecution (ii) demonstrative of a failure of state protection (iii) that is
causally connected to one of the grounds enumerated in the definition:
race, religion, nationality, political opinion, or membership of a particular
social group.7 As noted above, the ground gender remains conspicuously
absent.
Canada was the first state signatory to the Refugee Convention to for-
mally recognize that gender can ground a claim for refugee status in 1993,
when the Immigration and Refugee Board released the Guidelines.8 The
Guidelines do not incorporate gender into the refugee definition but in-
stead instruct adjudicators that the definition may properly be interpret-
ed 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.9 While the Guidelines lack legislative force,
standards for assessment. The Refugee Conventions deliberate use of the passive voice,
for example, imposes a less onerous burden on refugee claimants than the IRPA, which
requires a more direct causal link between the fear and the persecution. Further, the
differences between the standard requiring a well-founded fear of persecution (as in the
IRPA) versus the standard requiring a well-founded fear of being persecuted (as in the
Convention) shifts the IRPA inquiry toward experiences of past persecution rather than
the fear of future persecution, therefore decreasing a claimants likelihood of success.
See also James C Hathaway et al, The Michigan Guidelines on Nexus to a Convention
Ground (2002) 23:2 Mich J Intl L 210 at 211.
7 In addition to these three components, the refugee definition also requires proof that
the claimant is outside her country of origin, has no internal flight alternative, and can
substantiate her claim on both an objective and a subjective evidentiary standard.
8 Notably as well, the United Nations High Commissioner for Refugees (UNHCR) re-
leased gender guidelines as early as 1985, when its executive committee adopted a con-
clusion entitled Refugee Women and International Protection (UNHCR, Executive
Committee of the High Commissioners Programme, Report of the Sub-committee of the
Whole on International Protection, UNGAOR, 40th Sess, Supp 12A, UN Doc
A/40/12A/Add.1(1985) annex II), which stipulates that [s]tates, 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 (ibid at para
19(k)).
9 Supra note 3, part A.I [emphasis omitted]. Notably, merely adding gender to the refu-
gee definition is not sufficient to guarantee a substantive assessment of gender-related
persecution claims: see Deborah E Anker, Refugee Law, Gender, and the Human
Rights Paradigm (2002) 15 Harv Hum Rts J 133 ([t]he bars to womens eligibility for
refugee status lie not in the legal categories per se (i.e., the non-inclusion of gender or
sex as one of the five grounds) but in the incomplete and gendered interpretation of ref-
ugee law, the failure of decision-makers to acknowledge and respond to the gendering
of politics and of womens relationship to the state. Simply adding gender or sex to the
enumerated grounds of persecution would not solve this problem at 139 ×., citing Heaven Crawley, Refugees and Gender: Law and Process (Bristol: Jordans,
2001) at 6-9).
10 See Nurjehan Mawani, Introduction to the Immigration and Refugee Board Guidelines
on Gender-Related Persecution (1993) 5:2 Intl J Refugee L 240 at 243.
11 Guidelines, supra note 3, part B.
12 Ibid [emphasis omitted].
13 Ibid, part C.2. The Guidelines further explain that if the claimant can demonstrate that
it was objectively unreasonable for her to seek the protection of her state, her failure
to approach the state for protection will not defeat her claim (ibid).
14 [1993] 2 SCR 689, 103 DLR (4th) 1 [Ward cited to SCR].
15 Ibid at 739.
16 Ibid at 713-17 (persecution under the Convention includes situations where the state
is not in strictness an accomplice to the persecution, but is simply unable to protect its
citizens at 717).
17 Ibid at 717ff. See also Milev v Canada (Minister of Citizenship and Immigration), 1996
CarswellNat 1060 (WL Can), [1996] FCJ No 907 (QL) (TD). As the Federal Court of Ap-
peal explained in Canada (Minister of Citizenship and Immigration) v. Villafranca,
[n]o government that makes any claim to democratic values or protection of human
rights can guarantee the protection of all of its citizens at all times ((1992), 99 DLR
(4th) 334 at 337, 150 NR 232, leave to appeal to SCC refused, [1993] 2 SCR xi). The
736 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
democratic governments, the Court held, can be presumed capable of pro-
tecting their citizens. In such cases, the claimant must demonstrate clear
and convincing evidence of her home states inability or unwillingness to
protect her from harm.18 Recognizing that this evidentiary standard may
establish difficult hurdles for women facing gender violence, the IRB re-
vised the Guidelines after Wards release. In their current form, the
Guidelines instruct that 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.19 Elsewhere, the
Guidelines also encourage adjudicators to consider, among other relevant
factors, the social, cultural, religious, and economic context in which the
claimant finds herself.20 Before examining the gender cases in detail, I
first chart an overview of the basic principles governing the adjudication
of these claims, following the refugee definitions three central compo-
nents.
court further explained that where a state is in effective control of its territory, has mil-
itary, police and civil authority in place, and makes serious efforts to protect its citi-
zens, the mere fact that it is not always successful at providing protection will not be
enough to prove a failure of state protection (ibid).
18 Ward, supra note 14 at 724-25.
19 Supra note 3, part C.2 [emphasis omitted]. The Guidelines instruct as follows:
In determining whether the state is willing or able to provide protec-
tion to a woman fearing gender-related persecution, decision-makers should
consider the fact that the forms of evidence which the claimant might nor-
mally provide as clear and convincing proof of state inability to protect, will
not always be either available or useful in cases of gender-related persecu-
tion.
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 protec-
tion, reference may need to be made to alternative forms of evidence to meet
the clear and convincing test. Such alternative forms of evidence might in-
clude 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 (ibid [emphasis
omitted]).
20 Ibid [emphasis omitted].
RIGHTS PROTECTION IN CANADIAN REFUGEE LAW 737
B. Finding a Human Rights Violation
The persecution requirement lies at the heart of the refugee definition
and obliges claimants to demonstrate a subjective fear of persecution re-
lated to an objective risk of harm.21 In Ward, the Supreme Court of Cana-
da defined persecution as the sustained or systematic violation of basic
human rights demonstrative of a failure of state protection.22 Ward thus
requires adjudicators to make two distinct but interrelated findings: that
the claimant faces a violation of basic human rights and that her state is
unable or unwilling to protect her from this violation. The centrality of
human rights to this analysis is notable and signals a clear decision on
the part of the Court to establish human rights as the yardstick against
which refugee claims will be measured.23 This approach, the Court ex-
plained, both complies with and reflects the underlying purpose of the
United Nations Refugee Convention, namely the international communi-
tys commitment to the assurance of basic human rights without discrim-
ination.24 The requirement that these violations be sustained or systemic
further signals that minor harmsor instances of mere discrimination,
as these are dubbed in the case lawwill not amount to persecution.25
Like Ward, the Guidelines interpret the persecution requirement by
reference to human rights principles and instruct that claimants facing
gender persecution must show evidence of serious … harm which detracts
21 See Ward, supra note 14 at 723. As the Court explained, the subjective component re-
lates to the existence of the fear of persecution in the mind of the refugee and is as-
sessed with reference to the claimants subjective condition. The objective component, in
contrast, requires that the refugees fear be evaluated objectively to determine if there
is a valid basis for that fear (ibid, citing Rajudeen v Canada (Minister of Employment
and Immigration) (1984), 55 NR 129 at 134 (available on WL Can) (FCA)).
22 Supra note 14 at 734, citing James C Hathaway, The Law of Refugee Status (Toronto:
Butterworths, 1991) at 104-105 [Hathaway, Refugee Status].
23 See Ward, supra note 14 (the Court emphasized that refugee law ought to concern it-
self with actions which deny human dignity in any key way, and that the sustained or
systemic denial of core human rights is the appropriate standard at 733, citing Hatha-
way, Refugee Status, supra note 22 at 108).
24 Ward, supra note 14 at 733.
25 Following the direction set out by the UNHCR, the Canadian cases distinguish between
persecution and mere discrimination, which in itself is insufficient to trigger refugee
protection: see Office of the United Nations High Commissioner for Refugees, Hand-
book on Procedures and Criteria for Determining Refugee Status Under the 1951 Con-
vention and the 1967 Protocol Relating to the Status of Refugees, revised ed (Geneva:
United Nations High Commissioner for Refugees, 1992), online: UNHCR
will amount to persecution. This would be so if measures of discrimination lead to con-
sequences of a substantially prejudicial nature for the person concerned, e.g. serious re-
strictions on his right to earn his livelihood … or his access to normally available educa-
tional facilities at para 54).
738 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
from the claimants fundamental human rights.26 Recognizing that vio-
lence is often experienced in uniquely gendered ways, the Guidelines
identify several female-specific experiences27 that amount to persecu-
tion, listing rape, infanticide, genital cutting, bride burning, forced mar-
riage, domestic violence, forced abortion, and compulsory sterilization as
examples. The Guidelines further pre-empt and counter the argument
that the apparent universality of gender violence might preclude its
recognition as persecution: The fact that violence, including sexual and
domestic violence, against women is universal is irrelevant when deter-
mining whether rape, and other gender-specific crimes[,] constitute forms
of persecution.28 Instead, they explain, The real issues are whether the
violence — experienced or feared — is a serious violation of a fundamental
human right for a Convention ground and in what circumstances can the
risk of that violence be said to result from a failure of state protection.29
The fact that both Ward and the Guidelines anchor the refugee analy-
sis in human rights principles is significant. First and foremost, it ex-
panded refugee laws substantive eligibility grounds and extended refugee
status to countless claimants previously denied protection, many of them
women. The significance of these outcomes cannot be underestimated.
Second, the emphasis on human rights signalled a shift from what Mat-
thew Price has termed the political model of asylum toward the human-
itarian model of asylum.30 As originally conceived, international refugee
law was devised as a political instrument, a vehicle for protecting perse-
cuted people while also advancing Western political values.31 While this
26 Guidelines, supra note 3, framework of analysis.
27 Ibid, part B.
28 Ibid [emphasis omitted].
29 Ibid [emphasis omitted, footnotes omitted].
30 For a more complete discussion, see Matthew E Price, Rethinking Asylum: History,
Purpose, and Limits (Cambridge, UK: Cambridge University Press, 2009) at 4ff. [Price,
Rethinking Asylum].
31 See ibid. See also Hathaway, Refugee Status, supra note 22 at 6-10. As Hathaways
analysis shows, the terms of the refugee definition were reverse engineered from the po-
litical ideologies of dominant Western states and were strategically designed to bring
only certain experiences of displacement within the reach of international protection.
Hathaway explains: By mandating protection for those whose (Western inspired) civil
and political rights are jeopardized, without at the same time protecting persons whose
(socialist inspired) socio-economic rights are at risk, the Convention adopted an incom-
plete and politically partisan human rights rationale (ibid at 8). Hathaway demon-
strates that the debates leading to the Refugee Conventions enactment were largely
stratified along ideological lines and fuelled by political antagonism between the West-
ern states and the Soviet bloc. The Soviet representatives sought to base refugee status
on grounds of statelessness and objected vigorously to the premise of grounding refugee
status in social or ideological incompatibility. The Western states, which eventually
RIGHTS PROTECTION IN CANADIAN REFUGEE LAW 739
approach was prominent throughout the Cold War era, as the global polit-
ical climate changed, so did the international communitys approach to
refugee law.32 With the growing momentum of the international human
rights movement, signatory states increasingly turned to human rights
principles in their interpretation of refugee law. This shift sought to dis-
tance refugee law from its political roots and anchor it in a universally ac-
cepted and ostensibly neutral rights-based model of assessment.33 Be-
cause human rights principles are thought to transcend the particular
or, in the words of the Supreme Court of Canada, transcend subjective
and parochial perspectives and extend beyond national boundaries34
prevailed, decided instead to enact a highly politicized and individualistic regime with
persecution as the key factor in the refugee definition. This served the dual goals of en-
acting a definition that was tailor-made to respond to European displacement in the af-
termath of the Holocaust and the Second World War while also facilitating the condem-
nation of Soviet politics through international law: see ibid at 6-10.
32 See e.g. Price, Rethinking Asylum, supra note 30 at 4:
The persecution requirement seemed natural in a Cold War world in
which those who sought refuge in the West typically fled from strong, oppres-
sive states. Today, many of those who seek asylum … flee violence committed
by groups as varied as guerrilla armies, death squads, criminal gangs, family
members, and clans, as well as government security forces. … These realities
have put pressure on the traditional focus of asylum. Limiting asylum to per-
secuted people may seem too narrow: those fleeing from the violence that ac-
companies state breakdown and civil war, or from famine or extreme poverty,
need protection from harm just as much as do persecuted people.
33 Ultimately arguing in favour of reconnecting asylum with its political roots, Price aptly
summarizes the contrast between these two approaches:
During the Cold War, asylum was viewed in political terms: intertwined with for-
eign policy, asylum was a vehicle for expressing Western political values. Asylum
seekers were seen as ballots for freedom, symbols of liberal democracys ideological
superiority over Communism. By labeling those who fled the Eastern Bloc as per-
secuted a word that reflects a value judgment the West expressed its condem-
nation of Communist regimes. …
In a post-Cold War world, one less defined by grand ideological struggle,
a political conception of asylum according to which asylum expresses politi-
cal values and communicates condemnation of persecuting regimes is in
disfavor. The same impulse driving humanitarianism also suggests that asy-
lum should be politically neutral. What matters from the humanitarian point
of view is whether asylum seekers need protection. From that perspective,
identifying and calling to task the party responsible for an asylum seekers
insecurity is not only beside the point, but can interfere with the purpose of
asylum to protect. … From a humanitarian standpoint, asylum has a pallia-
tive purpose (ibid at 6-7 [footnotes omitted]).
See also Matthew E Price, Persecution Complex: Justifying Asylum Laws Preference
for Persecuted People (2006) 47:2 Harv Intl LJ 413 at 419.
34 Chan v Canada (Minister of Employment and Immigration), [1995] 3 SCR 593 at 635,
128 DLR (4th) 213 [Chan cited to SCR].
740 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
they are perceived to form the basis of universal protection standards not
subject to the political preferences of receiving states.35 Anchoring refugee
law in the human rights paradigm allows state actors to refrain from ex-
pressing overt value judgments about the conduct of persecuting states.36
In the Canadian context, Ward has been credited with shifting refugee
law away from politically motivated considerations and anchoring it firm-
ly in the human rights paradigm.37 Critics praised the decision for steer-
ing a course away from the days when refugee law was used to condemn
publicly enemy states for their misbehaviour.38 They further hailed the
decision as a powerful affirmation that the protection of those at risk of
serious human rights violations is the lens through which refugee law
must be focused.39 Since Ward, the primary goal of human rights protec-
tion has been formally inscribed in the IRPA, which provides that Cana-
das refugee protection regime is in the first instance about saving lives
and offering protection to the displaced and the persecuted, as an expres-
sion of Canadas respect for the human rights and fundamental freedoms
of all human beings.40
Indeed, both Ward and the Guidelines have been credited with shift-
ing the refugee analysis toward a rights-based model of assessment,
which serves to channel the language of international human rights and
thereby sidestep accusations of cultural imperialism. The drafters deci-
sion to incorporate human rights principles into the Guidelines was de-
vised to do just that.41 As Nurjehan Mawani, former chair of the Immigra-
35 According to this approach, refugee law does not attempt to set a corrective agenda,
tell another country how to act, or propose plans for eradicating particular practices
(Anker, supra note 9 at 146). Rather, it extends protection to those in need as an act of
assistance, of compassion, of charity to a fellow man (Gilbert Jaeger, A Comment on
the Distortion of the Palliative Role of Refugee Protection, Comment, (1995) 8:3 Jour-
nal of Refugee Studies 300 at 300).
36 See Price, Rethinking Asylum, supra note 30 at 7.
37 See Anker, supra note 9 (the Supreme Court of Canada signaled in Ward [that] … ref-
ugee law increasingly refers to, and more explicitly acknowledges its foundation in, an
international human rights paradigm at 133).
38 Linda E Tranter, A Step Forward in Protecting Human Rights: Canada v. Ward
(1993) 13:4 Refuge 16 at 16.
39 Ibid.
40 Supra note 6, ss 3(2)(a), (e).
41 For a complete analysis, see Audrey Macklin, Refugee Women and the Imperative of
Categories (1995) 17:2 Hum Rts Q 213. For example, the minister of employment and
immigration at the time, Bernard Valcourt, noted that recognizing gender as a basis for
asylum would be to unilaterally try to impose [Canadas] … values on other countries
regarding laws of general application and cautioned against Canadas act[ing] as an
imperialist country in this regard (ibid at 252-53, citing Estanislao Oziewicz, Canada
RIGHTS PROTECTION IN CANADIAN REFUGEE LAW 741
tion and Refugee Board, has explained, the Guidelines application is not
simply a matter of imposing western standards on other countries but ra-
ther a matter of respecting internationally accepted human rights stand-
ards.42 As Audrey Macklin has shown, this approach was intended to
bolster the proposition that characterizing certain forms of sex-based dis-
crimination and oppression as persecution represents not only Canadas
view, but also that of the international community.43 To this end, the
Guidelines incorporate eight international human rights instruments to
assist decision-makers in determining what kinds of treatment are con-
sidered persecution.44 They further assert that these instruments estab-
lish an objective standard for evaluating womens persecution claims.45
The human rights approach to refugee law has successfully expanded
its substantive eligibility grounds but has done little to move the refugee
analysis away from politically motivated considerations and toward a po-
litically neutral model of assessment. Human rights principles do not em-
body an objective morality, and nor does Canadian refugee law simply by
Not Planning to Widen Refugee Rules to Cover Sex Bias, The Globe and Mail (16 Jan-
uary 1993) A9).
42 Immigration and Refugee Board, News Release (9 March 1993), cited in Macklin, supra
note 41 at 253. But see Macklin, supra note 41 at 253, n 159:
The use of international standards is problematic however, in that not all countries
have ratified them (especially the problem countries) but also because they repre-
sent at best a consensus among powerful people (usually men) about what consti-
tutes a violation of a fundamental human right, and may ignore the experience of
oppression of those with no voice to express themselves or make themselves heard.
43 Ibid at 252-53.
44 Supra note 3, part B, framework of analysis. These instruments are the Universal Dec-
laration of Human Rights (GA Res 217(III), UNGAOR, 3d Sess, UN Doc A/810 (1948)
71 [Universal Declaration]), the International Covenant on Civil and Political Rights (16
December 1966, 999 UNTS 171, Can TS 1976 No 47 (entered into force 23 March 1976,
accession by Canada 19 May 1976)), the International Covenant on Economic, Social
and Cultural Rights (16 December 1966, 993 UNTS 3, Can TS 1976 No 46 (entered into
force 3 January 1976, accession by Canada 19 May 1976)), the Convention on the Elim-
ination of All Forms of Discrimination Against Women (18 December 1979, 1249 UNTS
13, Can TS 1982 No 31 (entered into force 3 September 1981, ratification by Canada 10
December 1981) [Discrimination Against Women Convention]), the Convention on the
Political Rights of Women (31 March 1953, 193 UNTS 135, Can TS 1957 No 3 (entered
into force 7 July 1954, accession by Canada 30 January 1957)), the Convention on the
Nationality of Married Women (20 February 1957, 309 UNTS 65, Can TS 1960 No 2
(entered into force 11 August 1958, ratification by Canada 21 October 1959)), the Con-
vention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Pun-
ishment (10 December 1984, 1465 UNTS 85, Can TS 1987 No 36 (entered into force 26
June 1987, ratification by Canada 24 June 1987) [Convention Against Torture]), and the
Declaration on the Elimination of Violence Against Women (GA Res 48/104, UNGAOR,
48th Sess, UN Doc A/RES/48/104 (1993)).
45 Guidelines, supra note 3, part D.1.2.
742 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
incorporating these principles. In fact, it is the other way around. The
Canadian national identityour understanding of ourselves, our national
values, and the ideals that we privilege in our lawsinforms what we see
as good or bad, prescribes our political choices, and determines which
practices we designate as rights violations. Put another way, the Canadi-
an national identity does not merely reflect some external or universal
morality but in fact precedes it. The pretense that Canadian refugee law
somehow ceases to be value laden because it references human rights
principles obscures the extent to which refugee determinations, even
when grounded in human rights principles, are always already informed
by national ideologies and political choices. In fact, Canadas stated com-
mitment to rights protection itself operates as an expressive vehicle
through which to assert and define the Canadian national identity. By as-
serting a commitment to human rightswhich, as Peter Fitzpatrick ar-
gues, represent the pervasive criteria by which global standards of civi-
lization and progress are judgedCanada claims its status as universal
exemplar in refugee protection.46 Viewed in this light, far from distancing
the refugee analysis from Canadian political ideologies, the incorporation
of human rights principles instead operates to reinscribe them. Through-
out the refugee cases, the commitment to rights protection itself serves as
a means through which to assert Canadas claimed identity as human
rights protector and refugee acceptor. This becomes clear in the context of
the state-protection analysis, to which I now turn.
C. Finding a Failure of State Protection
In order to constitute persecution, a practice must be shown not only
to violate human rights but also to do so in ways that demonstrate a fail-
ure of state protection. This aspect of the definitiondescribed in Ward as
the lynch-pin of the analysis47requires claimants to demonstrate clear
and convincing confirmation of [the] … states inability to protect.48 This
requirement reflects the underlying premise of international refugee law.
As stated in Ward, since refugee law was formulated to serve as a back-
up to the protection one expects from the state of which an individual is a
national49 it comes into play where no alternative remains to the claim-
ant.50 This is because refugee claims were never meant to allow a claim-
46 Modernism and the Grounds of Law (Cambridge, UK: Cambridge University Press,
2001) at 120-21.
47 Supra note 14 at 722.
48 Ibid at 724.
49 Ibid at 709.
50 Ibid at 726.
RIGHTS PROTECTION IN CANADIAN REFUGEE LAW 743
ant to seek out better protection than that from which he or she benefits
already.51 This surrogate or substitute protection, the Court explained,
can be activated only upon demonstrated proof that the claimants home
state is unable to protect her from harm.52
Such formulations, as Price explains, prescribe that when states fail to
protect their nationals, sovereignty can no longer serve as a shield of
immunity behind which unjustified harm can be inflicted with impuni-
ty.53 In the Courts analysis, a states inability to protect its nationals is
reflective of a failure of state sovereignty. States should be presumed ca-
pable of protecting their citizens [since s]ecurity of nationals is, after all,
the essence of sovereignty.54 By this logic, Ward effectively asks adjudica-
tors to counteract a finding of a foreign states inability to protect with a
finding of Canadas ability to protect. The ability to protectthe essence
of sovereigntythus becomes the test not only of a subjects status as a
refugee but also of Canadas status as provider of refuge. It is mobilized as
an expression of the Canadian identity, a reflection and embodiment of
Canadian national values and rights-protecting norms. In this way, the
Ward analysis operates to subtly reinforce Canadas claimed identity as
rights protector: with every refugee admission, the nation is repeatedly af-
firmed as a place that protects. In granting a claimant refugee status,
Canada both guarantees her protection and offers her provisional mem-
bership in a national identity constructed, in part, by the ability to pro-
tect.
Proof of Canadas ability to protect thus also operates to position Can-
ada as refugee acceptor in the division between refugee-accepting and
refugee-producing states. By now thoroughly considered in the scholarly
literature, this division replicates the familiar divide between us and
them, self and other, West and rest; it also depicts refugee-receiving
states as civilized, superior, and law-abiding, in opposition to the back-
ward, rights-violating, refugee-producing states of the global East and
South. As Catherine Dauvergne and Jenni Millbank explain, refugee law
is erected on a foundation of othering, which is sustained by a recur-
rent division between us and them.55 Within this framework, as Mack-
lin argues, Western states like Canada assert their identities as refugee
51 Ibid. The Court further held that Canadas obligation to offer a haven to those fleeing
their homelands is not unlimited (ibid at 738).
52 Ibid at 709, citing Hathaway, Refugee Status, supra note 22 at 135. See Ward, supra
note 14 at 716.
53 Rethinking Asylum, supra note 30 at 76-77.
54 Ward, supra note 14 at 725 [emphasis added].
55 Forced Marriage as a Harm in Domestic and International Law (2010) 73:1 Mod L
Rev 57 at 58 [Dauvergne & Millbank, Forced Marriage].
744 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
acceptors by distinguishing themselves from what they are not, namely,
the kind of governments that do the kinds of things to people that propel
them to claim refugee status.56
D. Grounds of Admission
To satisfy the refugee definition, after having demonstrated the states
failure to protect from persecution, a claimant must next establish a nex-
us between the feared persecution and at least one of the definitions
enumerated grounds: race, religion, nationality, political opinion, or
membership of a particular social group. While the Guidelines encourage
claimants to advance gender claims under all five grounds, the most
common (and, arguably, most effective) method shows the claimants
membership in a gender-defined particular social group.57 According to
Ward, commonality and immutability are the two requirements necessary
for defining a social group: group members must share a common, immu-
table characteristic that either is beyond the power of the individual to
change or that is so fundamental to his identity or conscience that it
ought not be required to be changed.58 Further emphasizing the signifi-
cance of human rights to the interpretation of the refugee definition,
Ward instructs that particular social group designations should take into
account the general underlying themes of the defence of human rights
56 Supra note 41 at 263-64. The relationship between national identity and rights in Ca-
nadian refugee law is well canvassed in the scholarly literature. For a comprehensive
treatment, see Catherine Dauvergne, Humanitarianism, Identity, and Nation: Migra-
tion Laws of Australia and Canada (Vancouver: University of British Columbia Press,
2005). As Dauvergne argues, because it forces a confrontation with a quintessential
representation of the other, refugee law offers a rich site in which to search for the
representations of the self, a site for assembling a picture of national identity and as
the effective boundary of the nation (ibid at 81). See also Audrey Kobayashi, Challeng-
ing the National Dream: Gender Persecution and Canadian Immigration Law in Peter
Fitzpatrick, ed, Nationalism, Racism and the Rule of Law (Aldershot, UK: Dartmouth,
1995) 61. Kobayashi argues that refugee women are confined by the victimization they
must portray to attain status and that this victimization narrative is influenced by na-
tional identity narratives (ibid at 70-71).
57 Guidelines, supra note 3. See also Report of the Thirty-Sixth Session of the Executive
Committee of the High Commissioners Programme, UNGAOR, 36th Sess, UN Doc
A/AC.96/673 (1985) [UNHCR Conclusions] (notably as well, in 1985 the UNHCR Exec-
utive Committee recognized the use of the particular social group ground in cases in-
volving women asylum-seekers who face harsh or inhuman treatment due to their hav-
ing transgressed the social mores of the society in which they live at para 115(4)(k)).
58 Supra note 14 at 737, citing Matter of Acosta, 1985 WL 56042 (US Department of Jus-
tice Board of Immigration Appeals).
RIGHTS PROTECTION IN CANADIAN REFUGEE LAW 745
and anti-discrimination that form the basis for the international refugee
protection initiative.59
Subsequently to Wards release, the membership of a particular social
group ground has evolved into a catch-all category that encompasses a
range of ascriptive characteristics not specifically enumerated in the defi-
nition, such as gender, sexual orientation, disability, or lineage, to list a
few.60 Canadian adjudicators have adopted two distinct methods by which
to define gender-specific social groups. Some have recognized groups de-
fined as women or by the shared attribute gender, following the Guide-
lines directive that gender is an innate characteristic and, therefore,
women may form a particular social group.61 Others have recognized
more particularized formulations, defining the social group by reference to
gender in addition to other criteria. The Guidelines also endorse this lat-
ter approach and instruct as follows:
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 ref-
erence 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, indige-
nous 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.62
It is worth noting that signatory states like the United Kingdom63 and
Australia64 have rejected this approach, making these highly particular-
ized formulations distinctly Canadian.65
59 Ward, supra note 14 at 739.
60 For a more complete discussion, see Price, Rethinking Asylum, supra note 30.
61 Supra note 3, part A.III [emphasis omitted, footnote omitted].
62 Ibid [emphasis omitted].
63 See Islam v Secretary of State for the Home Department; R v Immigration Appeal Tri-
bunal; Ex Parte Shah, [1999] UKHL 20, [1999] 2 AC 629.
64 See Minister for Immigration and Multicultural Affairs v Khawar, [2002] HCA 14, 210
CLR 1.
65 See Michelle Foster, The Ground with the Least Clarity: A Comparative Study of Ju-
risprudential Developments Relating to Membership of a Particular Social Group (Ge-
neva: UNHCR, 2012), online: UNHCR
and interpreted in a variety of domestic-law settings).
746 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
II. The Domestic Violence Cases: An Overview
A. Methodology
Using the three central components as a framework for analysis, my
study examines how adjudicators approach refugee-determination cases
involving claims of domestic violence. The domestic violence cases com-
prise the largest category of reported cases, numbering 528 in total.66 This
figure includes claims of spousal or familial physical violence, sexual vio-
lence, and spousal or familial rape. It does not include claims involving
rape or assault by state actors or non-spousal or non-familial third par-
ties. Of the cases in the category, 107 resulted in positive outcomes (either
refugee admissions or successful appeals) and 421 resulted in negative
outcomes (denials of status requests or appeal requests). Most of the un-
successful cases were rejected on the grounds that the claimant could not
prove a failure of state protection, did not advance sufficiently credible ev-
idence, or lacked credibility.67 These figures show an acceptance rate of
roughly 20 per cent. Since the IRB publishes only a small fraction of its
decisions, these figures do not accurately reflect the acceptance rate in the
domestic violence cases. Indeed, partial statistics obtained from the IRB
report a different rate. Between 1 January 2002 and 31 December 2006,
the IRB recorded an acceptance rate of 43.9 per cent in cases involving
principal claimants who alleged domestic violence persecution.68 Between
1 January 2008 and 30 June 2012, the IRB recorded an acceptance rate of
66 My examination builds on a previous study conducted by Constance MacIntosh, which
examined 135 domestic violence cases released between 2004 and 2009: Domestic Vio-
lence and Gender-Based Persecution: How Refugee Adjudicators Judge Women Seeking
Refuge from Spousal Violenceand Why Reform Is Needed (2009) 26:2 Refuge 147.
My study expands the analysis to a larger data set and arrives at different results.
67 While the grounds of rejection frequently overlapped, when assessed solely on the basis
of the principal reason cited for rejection, the cases divided as follows: Of the negative
cases surveyed, 269 (64 per cent of the rejected cases) were dismissed principally on the
grounds that the claimant either could not prove a failure of state protection or was able
to access an internal flight alternative. A further 114 claims (27 per cent of the rejected
cases) were principally dismissed on the grounds that the claimant either was not cred-
ible herself or failed to advance credible evidence. In addition, 26 claims (6 per cent of
the rejected cases) were dismissed on the ground that the claimant was unable to ad-
duce sufficient evidence to substantiate her claim. The remaining 12 cases (3 per cent of
the rejected cases) were dismissed on other groundsfor example, a change in country
conditions or an inability to link the feared persecution with a ground listed in the Ref-
ugee Convention.
68 These figures were obtained pursuant to request # A-2012-00056 /1-d filed under the
Access to Information Act (RSC 1985, c A-1). The full record reads as follows: Between
January 1 2002 and December 31 2006, there were 6,185 Principal claimants referred
who alleged domestic violence persecution. All have been finalized. 2,714 were accepted
& 2,734 were rejected. 737 were withdrawn or abandoned [emphasis in original].
RIGHTS PROTECTION IN CANADIAN REFUGEE LAW 747
48.7 per cent in cases involving principal claimants who alleged domestic
violence persecution.69 Because the IRB has not electronically tracked da-
ta outside of these specific periods, it is difficult to estimate the ac-
ceptance rate for the twenty-year period here examined. With this in
mind, my study does not purport to analyze the domestic cases quantita-
tively but rather reflects on broad patterns of adjudication based on the
best available data.
My study analyzed the domestic violence cases through a comparison
with the second- and third-largest categories of reported gender cases. Re-
spectively, these categories involve cases of forced abortion or compulsory
sterilization, and cases of genital cutting. I examined 60 reported cases
involving forced abortion or compulsory sterilization, which I refer to be-
low under the broad heading forced sterilization. Of these, 15 resulted in
positive outcomes and 45 in negative outcomes, amounting to an ac-
ceptance rate of 25 per cent. I also examined 57 reported cases involving
genital cutting, of which 23 resulted in positive outcomes and 34 in nega-
tive outcomes, amounting to an acceptance rate of 40 per cent. As noted
above, since the IRB publishes only a small fraction of its decisions, it is
difficult to ascertain whether this data set accurately reflects actual pat-
terns and trends.
I thus examined a total of 645 decisions,70 restricting my analysis to
female claimants only, on the basis that the Guidelines do not apply to
male claimants. I did not examine cases involving the remaining gender-
specific forms of persecution listed in the Guidelines, as these cases were
either too few in number or have been well canvassed elsewhere.71 I also
69 These figures were also obtained pursuant to request # A-2012-00056 /1-d filed under
the Access to Information Act (supra note 68). The full record reads as follows: Between
January 1 2008 and June 30 2012, there were 4,744 Principal claimants referred who
alleged domestic violence persecution. Of these, 3,654 have been finalized. 1,779 were
accepted & 1,444 were rejected. 431 were withdrawn or abandoned [emphasis in origi-
nal].
70 The study is limited to decisions reported by the LexisNexis Quicklaw database. This
database was selected because it includes a pool of decisions that is significantly larger
than the pool of decisions posted by the IRB on its RefLex database. The search terms
used were refugee, domestic violence, intimate violence, and domestic abuse. The
results of this initial search were vetted on a case-by-case basis following the criteria set
out above.
71 The largest category of the remaining female-specific cases involved claims of forced
marriage, which have been thoroughly examined in Dauvergne & Millbank, Forced
Marriage, supra note 55. My study also identified one case involving a claim of infanti-
cide: Re T (YA) ([1991] CRDD No 944 (QL)); several other cases involved tangential al-
legations of infanticide that were dismissed entirely by the adjudicator and not given
any weight. In addition, my study identified two cases involving allegations of bride
burning: In Re OCD ([1999] CRDD No 303 (QL)), the board referenced bride-burning
in passing (ibid at para 15) but focused primarily on the claimants fear of abuse at the
748 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
did not examine cases involving persecution on grounds of sexual orienta-
tion or sexual identity since the IRB assesses these cases differently and
often without referencing the Guidelines.72 I classified the decisions based
on the nature of the claim alleged, following the central components of the
refugee definition: the persecution analysis (divided into the human
rightsviolation assessment and the state-protection assessment) and the
grounds-of-admission analysis.
My research suggests that cases involving forced sterilization and gen-
ital cutting were characterized by three general tendencies: adjudicators
consistently identified forced sterilization and genital cutting as rights vi-
olations; they directed comparatively little attention to the state-
protection analysis; and they generally admitted claimants on the ground
of their membership in broad particular social groups defined as wom-
en or by the common attribute gender. In contrast, cases involving do-
mestic violence were characterized by three different tendencies: adjudi-
cators rarely identified domestic violence as a rights violation in itself;
they based their determinations on the availability of state protection
hands of her family members. Similarly, in Re HVV ([1998] CRDD No 217 (QL)), the
board referred to dowry deaths (ibid at para 13), but its assessment of the practice
was not determinative of the case. Since these cases were too few in number to reveal
any significant pattern of adjudication, they did not factor into my analysis.
My study also identified an additional forty gender cases that involved claims of
persecution not specifically recognized in the Guidelines. Of these, the largest propor-
tion involved claims relating to the transgression of social mores, a category recog-
nized in the UNHCR Conclusions (supra note 57 at para 115(4)(k)), which has since
been incorporated into Canadian law. These cases primarily involved claimants perse-
cuted for their participation in activities that promote womens rights (see Re CHD,
[2006] RPDD No 16 (QL), (15 February 2006), VA5-00531, online: RefLex Issue 294
Re
UHQ, [2000] CRDD No 90 (QL), (24 May 2000), T99-10229, online: RefLex Issue 143
for
their adoption of a Westernized lifestyle (see Re CSE, [2001] CRDD No 29 (QL) at pa-
ra 48, (9 March 2001), VA0-00566, online: RefLex Issue 163
([1997] CRDD No 266 (QL)) also involved allegations of forced marriage, but these were
discussed only minimally. Finally, a growing number of cases involved honour-killing
claims advanced by both male and female claimants. As with the infanticide and bride-
burning cases, these were too few in number to demonstrate any real pattern of adjudi-
cation and thus were not taken into account in my analysis.
or
72 For an analysis of claims involving sexual orientation, see e.g. Erik D Ramanathan,
Queer Cases: A Comparative Analysis of Global Sexual Orientation-Based Asylum Ju-
risprudence (1996) 11:1 Geo Immig LJ 1; Kristen Walker, New Uses of the Refugees
Convention: Sexuality and Refugee Status in Susan Kneebone, ed, The Refugees Con-
vention 50 Years On: Globalisation and International Law (Aldershot, UK: Ashgate,
2003) 251; Catherine Dauvergne & Jenni Millbank, Burdened by Proof: How the Aus-
tralian Refugee Review Tribunal Has Failed Lesbian and Gay Asylum Seekers (2003)
31:2 Federal Law Review 299.
RIGHTS PROTECTION IN CANADIAN REFUGEE LAW 749
(and frequently located the source of persecution in cultural difference);
and they generally admitted claimants on the ground of their membership
in a highly specific particular social group. I chart an overview of these
findings below, using the three central components of the refugee defini-
tion as a framework for analysis.
B. Finding a Human Rights Violation
1. Forced-Sterilization and Genital-Cutting Cases
In cases involving forced sterilization, adjudicators frequently refer-
enced human rights principles in assessing whether the practice amount-
ed to persecution. Most of the reported IRB cases followed the Federal
Court of Appeals findings in Cheung v. Canada (Minister of Employment
and Immigration) (C.A.) that forced sterilization is a fundamental viola-
tion of basic human rights, a serious and totally unacceptable violation
of … security of the person that subjects women to cruel, inhuman and
degrading treatment.73 In Zheng v. Canada (Minister of Citizenship and
Immigration), the Federal Court similarly held that forced sterilization is
a violation of basic rights ranking high on our scale of values and
amounting to persecution.74 Following these decisions, at the IRB level,
adjudicators consistently held that forced sterilization is a violation of the
human right75 variously identified as the right to security of person,76 the
73 [1993] 2 FC 314 at 324, 102 DLR (4th) 214. Notably as well, the court explicitly rejected
the argument that forced sterilization is exempt from scrutiny as a law of general appli-
cation, on grounds that such a finding ignore[s] the severity of the intrusiveness of
sterilization to a persons mental and physical integrity (ibid at 319).
74 2009 FC 327 at para 14, 343 FTR 247 [Zheng], citing E (Mrs) v Eve, [1986] 2 SCR 388 at
para 92, 31 DLR (4th) 1. Similarly, in Chan, a Supreme Court of Canada decision in-
volving a male claimant, the dissent notably concluded that it was utterly beyond dis-
pute that forced sterilization is in essence an inhuman and degrading treatment involv-
ing bodily mutilation, and constitutes the very type of fundamental violation of basic
human rights that is the concern of refugee law (supra note 34 at 636). The Court, sit-
ting as a panel of seven, was split four to three, with Justices Sopinka, Cory, Iacobucci,
and Major in the majority, and Justices La Forest, LHeureux-Dub, and Gonthier dis-
senting. The majority rejected the claimants application for refugee status not based on
the finding that sterilization did not amount to persecution but rather based on the
finding that the evidentiary threshold had not been met (ibid at 673). The dissent
would have allowed the claim following the reasoning set out above.
75 See Re BAJ, [2000] CRDD No 33 (QL), (15 February 2006), V99-03499, online: RefLex
Issue 136
[cited to QL] (the forced sterilization of women is a fundamental violation of basic hu-
man rights. … [E]ven the threat of forced sterilization can … ground a fear of persecu-
tion at para 8).
76 See Re B (KA), [1994] CRDD No 308 (QL) ([t]he claimant is a Chinese woman who
wishes to exercise her fundamental right to reproductive control and security of the
750 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
right to reproductive choice,77 or the right to bear a child,78 and that it
thus amounts to persecution.79 The emphasis on human rights was also
person. There is more than a mere possibility that she would not be permitted to do so
for persecutory reasons in China).
77 See Re FET, [1996] CRDD No 141 (QL). See also Re B (KA), supra note 76; Zheng, su-
pra note 74 (interference with a womans reproductive liberty is [interference with] a
basic right at para 14); Chi v Canada (Minister of Citizenship and Immigration), 2002
FCT 126 (available on CanLII) [Chi] ([t]he punishment that the applicant fears is the
state-enforced suppression of her reproductive capacity at para 48).
78 See Re B (KA), supra note 76; Re X (EL), [1995] CRDD No 1 (QL) (the claimant was
caught between two potential agents prepared to violate her fundamental human rights
with respect to the control over her reproductive capacity and her integrity and dignity
as a female person); Re T (ZB), [1993] CRDD No 429 (QL) (the right to bear a child is
a fundamental human right).
79 This approach is typical only of cases issued after the release of the Guidelines. Most of
the forced-sterilization cases issued prior to 1993 were dismissed on the rationale that,
as a law of general application, Chinas one-child policy could not amount to persecu-
tion: see e.g. Re A (OO), [1990] CRDD No 631 (QL) ([w]hile we may find the policy ab-
horrent, we do not have the right to find it unjustified in the circumstances which pre-
vail in the P.R.C.); Re Y (WR), [1989] CRDD No 37 (QL) (the policy is not applied to a
specific person or group of persons by reason of their race, religion, political opinion or
membership in a particular social group. The policy cannot, therefore, constitute a basis
for a well-founded fear of persecution); Re Z (JH), [1991] CRDD No 361 (QL) ([w]e do
not consider the Chinese governments attitude toward birth control to constitute perse-
cution per se. This policy is essentially designed to ensure the well-being of the popula-
tion and has received the support of many international organizations, including the
United Nations). See also Re E (HB), [1990] CRDD No 644 (QL); Re B (LV), [1991]
CRDD No 548 (QL); Re T (MO), [1992] CRDD No 53 (QL); Re X (QH), [1991] CRDD No
859 (QL); Re T (XA), [1990] CRDD No 427 (QL); Re L (YR), [1992] CRDD No 599 (QL);
Re L (AF), [1991] CRDD No 196 (QL). Adjudicators generally agreed it would be pre-
sumptuous of the Refugee Division to consider itself in a better position than the gov-
ernment of the P.R.C. to determine what family planning policies are necessary or de-
sirable in the P.R.C. at the present time (Re N (JW), [1991] CRDD No 5 (QL) at para
8.8).
The shift from the pre-Guidelines concern for respecting Chinas sovereign enti-
tlement to manage its population as it saw fit toward the post-Guidelines concern for
Canadas obligation to condemn forced sterilization as a human rights violation is nota-
ble. It suggests that the contemporary cases are not constrained by deference to Chinas
sovereign prerogatives; rather, they are driven by a desire to return the focus of a refu-
gee hearing to the essential question of whether the claimants basic human rights are
in fundamental jeopardy (Chan, supra note 34 at 634, La Forest J, dissenting). While
these statements characterize the majority of the early decisions, a small handful of
these early cases explicitly recognizes forced sterilization as a persecutory act, and al-
most all rely on an explicit citation of human rights principles to justify their holdings:
see e.g. Re X (DK), [1989] CRDD No 293 (QL); Re I (RR), [1992] CRDD No 87 (QL); Re A
(WR), [1989] CRDD No 98 (QL); Re N (UR), [1989] CRDD No 41 (QL). It is also notable
that the citation of human rights principles in the pre-Guidelines cases did not always
support a positive finding of admission. At least one decision noted with express regret
that all human rights violations do not constitute persecution (Re L (AF), surpa note
79 at para 7.1).
RIGHTS PROTECTION IN CANADIAN REFUGEE LAW 751
prominent in a series of cases that excluded claimants from protection
pursuant to section 98 of the IRPA because of their role in enforcing Chi-
nas one-child policy.80 While these cases were comparatively few in num-
ber, their results were consistent: adjudicators not only recognized forced
sterilization as a rights violation but also identified it as a crime against
humanity.81 It is also notable that, in many of these cases, adjudicators
used strong language to condemn forced sterilization as an inhuman
practice,82 an act of barbarous cruelty,83 and an act contrary to human
dignity.84
Cases involving genital cutting largely followed a similar pattern. In
its 1995 decision in Annan v. Canada (Minister of Citizenship and Immi-
gration) (T.D.), the Federal Court identified genital cutting as a cruel and
barbaric practice that constitutes persecution.85 IRB adjudicators have
arrived at similar determinations: adjudicators have held that it is well
established that genital cutting is a persecutory act,86 which must be
characterized as a form of persecution.87 IRB adjudicators have further
80 IRPA, supra note 6, s 98 (excluding from refugee status persons who have committed
war crimes, crimes against peace, or crimes against humanity).
81 See e.g. Re P (UO), [1995] CRDD No 62 (QL); Re YFI, [1998] CRDD No 42 (QL); Re
USS, [1999] CRDD No 290 (QL); Re MKC, [2004] RPDD No 19 (QL), (9 February 2004),
VA2-00206, online: RefLex Issue 235
MA3-09245, online: RefLex Issue 238
82 Re FET, supra note 77 at para 16, citing Chan, supra note 34 at 636, La Forest J, dis-
senting.
83 Re MKC, supra note 81 at para 25.
84 Ibid. See also Yang v Canada (Minister of Citizenship and Immigration) (1999), 164
FTR 147 (available on CanLII); Lai v Canada (Minister of Citizenship and Immigra-
tion), 2005 FC 179 (available on CanLII) (both holding that forced sterilization offends
the conscience of right-thinking persons).
85 [1995] 3 FC 25 at 28 (available on CanLII) [Annan].
86 Re IFL, [1999] CRDD No 214 (QL) ([t]hat the performance of FGM [female genital mu-
tilation] is a persecutory act is well established in the case law at para 13).
87 Re RSF, [1997] CRDD No 78 (QL) at para 33 [emphasis added]. See also Re FOH,
[2003] RPDD No 4 (QL) (according to the Canadian jurisprudence, … FGM is consid-
ered in Canadian and international law as a form of persecution at para 15); Re MTF,
[2003] RPDD No 7 (QL), (3 January 2003), MA2-04725, online: RefLex Issue 206
QL] ([f]orced FGM is considered as persecution by the Canadian jurisprudence at pa-
ra 17); Re XJV, [1996] CRDD No 15 (QL) ([f]emale circumcision has been recognized as
constituting persecution by the Federal Court of Canada. At the international level, the
Declaration on the Elimination of Violence against Women states that genital mutila-
tion is included in the definition of violence against women and that it constitutes a vio-
752 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
held that genital cutting is a sustained and systemic violation of several
of the most fundamental [human] rights,88 including the right to life, lib-
erty, and security of person; the right to health; the right against cruel or
inhuman treatment; the right not to be married against ones consent;
and the right to special protection for motherhood.89 The rationale un-
derpinning these findings is that genital cutting is a practice so severe
that its characterization [as] … persecution [is] beyond dispute.90 In
keeping with the Guidelines instructions, adjudicators frequently cited
human rights instruments in these decisions.91 As with the forced-
sterilization cases, many adjudicators depicted genital cutting as cruel
and barbaric,92 a horrendous custom,93 a torturous custom,94 a horrif-
ic torture,95 and an atrocious mutilation.96
lation of the rights of women and children at para 15 ×.); Re DVH,
[1998] CRDD No 102 (QL) at paras 34-35:
[T]he three minor claimants … have a well-founded fear of persecution in Somalia
and … are Convention refugees.
tive] is not an issue for these claimants.
Since FGM is a widespread practice in Somalia, IFA [internal flight alterna-
88 Re RSF, supra note 87 at para 33.
89 Ibid at paras 20-26.
90 See Re WQC, [2001] CRDD No 167 (QL) at para 34.
91 See e.g. Re G (LD), [1994] CRDD No 412 (QL) (referring to the Universal Declaration
(supra note 44) and the Convention on the Rights of the Child (20 November 1989, 1577
UNTS 3, Can TS 1992 No 3 (entered into force 2 September 1990, ratification by Cana-
da 13 December 1991))); Re XJV, supra note 87 at para 15 (referring to the Declaration
on the Elimination of Violence Against Women (supra note 44)); Re RSF, supra note 87
at para 21 (referring to the Constitution of the World Health Organization (22 July
1946, 14 UNTS 185, Can TS 1946 No 32 (entered into force 7 April 1948, acceptance by
Canada 29 August 1946), online: World Health Organization
26, (18 December 2001), MA1-00356, online: RefLex Issue 192
an Charter of Rights and Freedoms (Part I of the Constitution Act, 1982, being Schedule
B to the Canada Act 1982 (UK), 1982, c 11 [Charter])).
92 Annan, supra note 85 at 28. See also Re EKD, [2001] CRDD No 174 (QL) ([a]s for the
genital mutilation that is the basis of the minor female claimants fears, … this is a bar-
baric practice, which deprives a human being of part of her body at para 8).
93 Re G (LD), supra note 91 (Evidence of the head of obstetrics and gynaecology at Welles-
ley Hospital in Toronto).
94 Re B (PV), [1994] CRDD No 12 (QL), citing Berhane Ras-Work, Female Genital Muti-
lation (Paper delivered at the Conference on Gender Issues and Refugees: Develop-
ment Implications, York University, 9-11 May 1993) at 1, 5, Conference Papers on Gen-
der Issues and Refugees: Development Implications (North York: York University Cen-
tre for Refugee Studies, 1993) (quoting womens rights advocates in Africa).
95 Annan, supra note 85 at 30.
2. Domestic Violence Cases
RIGHTS PROTECTION IN CANADIAN REFUGEE LAW 753
The cases examined in this data set confirm one very positive trend:
adjudicators consistently recognized domestic violence as persecution for
the purposes of the refugee analysis. This finding is consistent with those
of Constance MacIntosh, who examined 135 domestic violence decisions
released between 2004 and 2009.97 Two distinct patterns further distin-
guish adjudicators approach to the first branch of the persecution analy-
sis, the human rightsviolation assessment. First, despite Wards instruc-
tion that persecution is defined as a sustained and systemic violation of
human rights, adjudicators rarely identified domestic violence as a rights
violation in itself. Second, despite the Guidelines instructions that adjudi-
cators should consider human rights instruments and norms, adjudicators
rarely referenced human rights in the domestic violence cases. My study
identified only fifteen reported decisions over the twenty-year period ex-
amined in which adjudicators either explicitly identified domestic violence
as a human rights violation or relied on human rights instruments.98 All
96 Ibid.
97 Supra note 66 at 152.
98 These cases are as follows: Re G (AU), [1993] CRDD No 350 (QL) (referring to the
Guidelines (supra note 3) and the Convention Against Torture (supra note 44) for the
conclusion that the claimant has an internationally protected right to protection from
domestic violence and failure to give that protection is a form of gender-based discrimi-
nation); Re S (KL), [1993] CRDD No 185 (QL) (referring to the Universal Declaration
(supra note 44), the Convention Against Torture (supra note 44), the International Cov-
enant on Civil and Political Rights (supra note 44), the Discrimination Against Women
Convention (supra note 44), and the Convention on the Political Rights of Women (supra
note 44) in relation to the finding that violence against women … contravenes interna-
tionally recognized standards and the conclusion that the claimant fears abuses of her
basic human rights not to be subjected to cruel and unusual treatment as prohibited by
the U.N. Convention Against Torture); Re D (RG), [1993] CRDD No 261 (QL) (referring
to a report of the United Nations Committee on the Elimination of Discrimination
Against Women and, notably, admitting the claimant on grounds of nationality and re-
ligion rather than gender); Re C (IJ), [1995] CRDD No 30 (QL) (referring to the Univer-
sal Declaration (supra note 44) and the International Covenant on Civil and Political
Rights (supra note 44), and concluding that the continued physical, sexual and emo-
tional abuse which the claimant experienced constitutes a violation of the security of
person and amounts to cruel, inhuman and degrading treatment); Re Q (TP), [1995]
CRDD No 107 (QL) (referring to a 1992 report of the United Nations Committee on the
Elimination of Discrimination Against Women); Re B (TD), [1994] CRDD No 391 (QL)
(citing the Discrimination Against Women Convention (supra note 44) and finding that
the claimant has an internationally protected right to protection from domestic vio-
lence); Re C (UY), [1994] CRDD No 389 (QL) (referring to the Universal Declaration
(supra note 44) and the Guidelines (supra note 3) in finding that the claimants inter-
nationally protected right to personal security was routinely violated by the pattern of
domestic violence in her common-law marriage); Re M (XK), [1994] CRDD No 78 (QL)
(referring to the Universal Declaration (supra note 44) and finding that the continued
physical, sexual and emotional abuse which the claimant experienced constitutes a vio-
754 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
of these decision resulted in positive admissions. I did not identify a single
negative decision in which adjudicators cited human rights principles.
The lack of references to human rights instruments and principles in the
domestic violence cases is notable.
C. Finding a Failure of State Protection
1. Forced-Sterilization and Genital-Cutting Cases
At the state-protection stage of the analysis, my study also identified
key differences between the domestic violence cases and the forced-
sterilization and genital-cutting cases. In the forced-sterilization and geni-
tal-cutting cases examined, adjudicators by and large engaged in the
state-protection analysis only minimally, often because the state was di-
rectly responsible for the persecution at issue. In the cases of forced steri-
lization, adjudicators generally agreed that, since forced sterilization is a
state-enforced suppression of … [a womans] reproductive capacity,99 it
would be objectively unreasonable to expect the claimant … to enlist the
protection of the state, which was acting as an agent of her persecu-
tion.100 In most of the genital-cutting cases, adjudicators either did not
lation of the security of person and amounts to cruel, inhuman and degrading treat-
ment); Re O (KY), [1994] CRDD No 169 (QL) (referring to the Guidelines (supra note
3), the Convention Against Torture (supra note 44), and the Discrimination Against
Women Convention (supra note 44), and finding that the claimant suffered a human
rights violation as well as a violation of her internationally protected rights as a parent,
given that her husband deprived her of custody of and access to her children); Re HGK,
[1996] CRDD No 207 (QL) (finding that [d]omestic violence exists in every society and
that [i]t is a serious human rights violation that affects not only the victims but their
children at para 25); Re IMV, [1996] CRDD No 98 (QL) (sexual assault is a breach of
the most basic human rights, from which no exceptions are permitted under the Uni-
versal Declaration of Human Rights, and is also an offence against the right of security
of the person at para 14); Re Y (OE), [1994] CRDD No 269 (QL) (referring to the Uni-
versal Declaration (supra note 44) and section 15(1) of the Charter (supra note 91)); Re
HTO, [1997] CRDD No 141 (QL) (finding that women subjected to domestic violence
have had their human rights denied); Re CAK, [1997] CRDD No 333 (QL) (finding that
a womans right to leave an abusive relationship is a basic human right). See also Re I
(GF), [1993] CRDD No 114 (QL) (concluding that the claimant has suffered, for years,
cruel, inhuman, degrading treatment inflicted on her by her former husband, the IRB
used language typically associated with human rights, and while not citing human
rights instruments directly, nonetheless referenced human rights principles by citing
the Guidelines (supra note 3) as follows: The Guidelines suggest that, in assessing the
feared harm, the evidence should establish whether or not the violence experienced or
feared is a serious violation of a fundamental human right for Convention grounds, and
in what circumstances may the risk of that violence be said to result from a failure of
the states protection).
99 Chi, supra note 77 at para 48.
100 Re RZQ, [1997] CRDD No 102 (QL) at para 23.
RIGHTS PROTECTION IN CANADIAN REFUGEE LAW 755
comment on the availability of state protection,101 presumed state protec-
tion would be lacking,102 or engaged in the state-protection analysis only
minimally.103 This pattern suggests that, in cases involving practices iden-
tified as rights violations, the state-protection analysis is less determina-
tive to the refugee assessment.
101 See e.g. Re GIA, [1998] CRDD No 274 (QL); Re IFL, supra note 86; Re QQX, [1996]
CRDD No 52 (QL).
102 See e.g. Re DVH, supra note 87 (the IRB does not engage in the state-protection analy-
sis but notes that [s]ince [FGM] is a widespread practice in Somalia, IFA is not an is-
sue for these claimants at para 35); Re FOH, supra note 87 (the IRB does not engage in
the state-protection analysis but grounds its finding in documentary evidence indicat-
ing that 98 percent of women in Somalia undergo FGM, and 80 percent of women suf-
fered infibulation, which is the most radical form of FGM at para 14); Re N (ID), [1994]
CRDD No 311 (QL) (the IRB does not engage in the state-protection analysis but
grounds its finding in documentary evidence indicating high rates of FGM in Somalia,
as above); Re G (LD), supra note 91 (the IRB does not engage in the state-protection
analysis but relies on previous cases involving women fearing genital cutting in Soma-
lia); King v Canada (Minister of Citizenship and Immigration), 2003 FC 1120, 240 FTR
8 (the Federal Court does not engage in the state-protection analysis but relies on evi-
dence that FGM is widespread in certain regions of Liberia, and that there is no law
against FGM in Liberia and there appears to be little support to curb the practice from
community leaders, elders, chiefs, and government officials at para 17); Re MTF, supra
note 87 (in finding that the claimant was not persecuted by the state and had no in-
ternal flight options, the IRB engages in a minimal degree of state-protection analysis
and relies on evidence that the Ugandan government and international organisations
operating in Uganda deploy important educational efforts in order to discourage the
practice of FGM. However, while being discouraged, the practice of FGM in Uganda is
not outlawed and can still be performed legally at paras 16, 20); Re RPX, [2003] RPDD
No 84 (QL), (12 June 2003) MA2-10373, online: RefLex Issue 220
claimant had no internal flight alternative and that, while the issue of state protection
was not really argued at the hearing, the IRB relied on documentary evidence indicat-
ing that women subject to a risk of excision have no recourse, not only because it in-
volves a tradition to which they cannot object, but also because no action is taken
against those who contravene the Act even though genital mutilation is illegal at paras
16-17).
103 See e.g. Re RSF, supra note 87 (the IRB held that state protection would be lacking
based on evidence that the Ghanaian government decided to abandon the claimant
and her young female friends to their fate and then refused to enforce its own legisla-
tion concerning the banning of FGM at para 47). Moreover, in two different cases in-
volving claimants from Guinea, and another involving a claimant from Nigeria, the IRB
found state protection was lacking given evidence that genital cutting was a deeply en-
trenched cultural ritual that was itself discriminatory, dangerous and unacceptable,
and harmed the rights of women: see Re SCK, supra note 91 at para 30; Re XJV, supra
note 87 (noting that genital cutting is a significant part of the local culture, and that the
government tolerates if not supports the practice at paras 14, 17); Re WRI, [2000]
CRDD No 43 (QL), (14 February 2000), T99-00663, online: RefLex Issue 137
ing the states inability to protect victims of sexual violence and harmful customary
rituals in Nigeria at para 16).
756 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
2. Domestic Violence Cases
In contrast, in the domestic violence cases, adjudicators determina-
tions generally hinged on the state-protection analysis. In cases resulting
in negative decisions, adjudicators rarely engaged in a contextual analysis
when evaluating the availability of state protection, a fact that suggests
the standard for demonstrating meaningful enforcement is relatively
low.104 For example, many adjudicators identified the existence of anti
domestic violence legislation, womens shelters, or other protective ser-
vices as sufficient to show the availability of state protection, with few re-
ferring to documentary material on the adequacy or accessibility of these
measures. Adjudicators usually found state protection was available in
cases where the state made good-faith efforts to take the problem of vio-
lence against women seriously105 by enacting legislation,106 training spe-
cialized police units,107 providing legal-aid services,108 or establishing shel-
104 In this respect, my study arrives at similar conclusions as the study conducted by Mac-
Intosh (supra note 66). MacIntoshs study concludes that adjudicators often failed to
engage in a substantive, contextual understanding of the evidence before them in eval-
uating the availability of state protection, and that in a vast majority of the negative de-
cisions, adjudicators drew on social or cultural factors at a very low rate. My study fur-
ther shows that in many of the successful cases, adjudicators drew on social and cultur-
al factors quite extensively and in fact frequently based their determinations on an as-
sessment of these factors.
105 See e.g. Re UFQ, [2005] RPDD No 78 (QL), (2 September 2005), TA5-02334, online: Re-
fLex
Issue 272
ities are conscious of the problems and have instituted laws as well as state and social
agencies to deal with domestic abuse at para 27); Re BWZ, [2004] RPDD No 13 (QL) at
paras 8, 10-13, (3 February 2004), TA3-04991, online: RefLex Issue 234
tion available in the Philippines given evidence that the government was making seri-
ous efforts to address the problem of violence against women and that various
measures had been taken).
106 See e.g. Re ATZ, [2003] RPDD No 47 (QL), (12 March 2003), TA2-03858, online: RefLex
Issue 213
(state protection available in St. Vincent given evidence that legislation aimed at domes-
tic violence was passed in 1995 and is being implemented); Re EUS, [2003] RPDD No
63 (QL), (12 June 2003), AA2-01089, online: RefLex Issue 218
ble in El Salvador given evidence of legislation designed to address domestic violence);
Re QLG, [1996] CRDD No 172 (QL) (state protection available in Ecuador given evi-
dence of a new law concerning violence against women and families that changes the
position of abused women in Ecuador at para 40).
107 See e.g. Re KHF, [2003] RPDD No 96 (QL) at para 2, (2 June 2003), VA2-02218, online:
RefLex Issue 217
abuse is a problem in Spain, the state is and has been making serious efforts to control
RIGHTS PROTECTION IN CANADIAN REFUGEE LAW 757
ters or other forms of recourse109 and support.110 As MacIntosh argues,
this approach casts doubt on whether adjudicators substantively engaged
with the evidence before them or merely conflate[d] the fact that states
have enacted protective legislation with the finding that there is protec-
tion for the claimant.111
In many of the cases resulting in positive admissions, adjudicators
found state protection was unavailable to the claimant given evidence of
cultural norms. For example, in Re L.T.D., the IRB reasoned that while
wife battering is a criminal offence in Ghana, it was still condoned in
traditional society and culturally accepted, with the result that state
protection was not available to the claimant.112 In Re L. (C.B.), the IRB
concluded that state protection was unavailable in Argentina because of
its machismo and because of the prevalence of gendered misconceptions
… deeply rooted in the Argentinean culture.113 In Re G. (D.M.), the IRB
cited evidence that culture and tradition inhibit the achievement of full
equality for women and that, as a result, state protection was not availa-
ble.114 In Re H.T.O., the IRB found state protection was absent given the
cultural ethos in Bangladesh.115 Similarly, in Re O.E.X., the IRB found
that state protection was lacking in Nigeria given evidence that [c]ultural
norms endorse wife assault among the Yoruba.116 There are numerous
examples of similar findings in the reported decisions.117 Such findings
and fight [it], for instance by establishing information centers, shelters, specialized po-
lice units, legal-aid offices, and local clinics (ibid at para 26)).
108 See e.g. Re ZNY, [2000] CRDD No 84 (QL) at para 7, (26 April 2000), T99-09072, online:
RefLex Issue 141
access to legal assistance and representation).
109 See e.g. Re O (ZT), [1993] CRDD No 145 (QL).
110 See e.g. Re SBH, [2001] CRDD No 266 (QL), (3 December 2001), TA0-06665, online: Re-
fLex
Issue 182
medical-assistance programs, efforts to raise awareness, and specific training provided
to police officers and school guidance counselors); Re GLX, [1998] CRDD No 9 (QL)
(state protection available in Jamaica given evidence that domestic violence is ad-
dressed by legislation and services).
111 Supra note 66 at 162.
112 [1996] CRDD No 267 (QL) at para 23.
113 [1993] CRDD No 307 (QL) (Evidence of Maria Rose Pinedo).
114 [1994] CRDD No 184 (QL) (Evidence of the Ecuadorian womens movement).
115 Supra note 98 at para 16.
116 [1999] CRDD No 79 (QL) at para 6.
117 See e.g. Re D (RG), supra note 98 (state protection lacking in Ghana given evidence that
violence against women was condoned by that society); Re WEB, [2009] RPDD No 35
758 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
were comparatively absent in the forced-sterilization and genital-cutting
cases.
My concern with these cases is not with the finding that the claimants
culture was violent, patriarchal, or oppressive. Indeed, cultural norms and
traditions can often be oppressive and can often give rise to or reinforce
womens persecution in both domestic and nondomestic settings. My con-
cern is rather with the unintended consequences that stem from locating
persecution so narrowly in cultural difference. I return to this point below,
but first, I examine how adjudicators approached the grounds-of-
admission stage of the refugee analysis.
D. Grounds of Admission
1. Forced-Sterilization and Genital-Cutting Cases
At the grounds-of-admission stage of the analysis, the cases involving
forced sterilization or genital cutting also followed a distinctly different
adjudicative pattern as compared with those involving domestic violence.
As noted above, the Guidelines contemplate two ways through which to
designate a gender-specific social group. The first is through the broad
designation women, while the second is through more particularized
formulations specific to a subgroup of women. In most of the reported de-
(QL), (23 October 2009), VA7-02451, online: RefLex Issue 373
tection lacking in Nigeria as a result of custom and evidence that the police do not
normally intervene in domestic disputes at paras 19-20); Re DSL, [1996] CRDD No 68
(QL) (holding that women in Tanzania were unable to access state protection because
cultural, social and family pressures often prevent women from reporting abuses to au-
thorities at para 14 (Evidence of Response to Information Request #TZA17622.E)); Re
DNH, [1996] CRDD No 258 (QL) at para 36 (finding that wife-battery is a common fea-
ture of family life in Nigeria and is not prohibited under Nigerian customary law or
traditional culture); Re Y (ZV), [1995] CRDD No 42 (QL) (noting that violence and dis-
crimination against women are common features of Bangladeshi society and that
Bangladeshi women are valued less than both children and property); Re X (WL),
[1995] CRDD No 104 (QL) (noting that violence against women in Ecuador is without
either geographic or social boundaries and that [w]hile the phenomenon of domestic
violence is increasingly denounced today, it was traditionally ignored because of social
and cultural attitudes); Re V (FF), [1994] CRDD No 34 (QL) (noting that sexual abuse
is a common feature of Salvadoran womens lives given the cultural sanctioning of vio-
lence against women (ibid (Evidence of a 1991 article on Salvadorian women)) and
culturally sanctioned attitudes that view women as property (Re V(FF), supra note
117)); Re OQC, [1996] CRDD No 42 (QL) (accepting evidence stating that the situation
of battered women in Nigeria is an acceptable form of interaction between husband and
wife under our customary law at para 31 (Evidence of Nigerias Legal Research and
Resource Development Centre)); Orsovai v Canada (Minister of Citizenship and Immi-
gration), [2003] RPDD No 621 (QL).
RIGHTS PROTECTION IN CANADIAN REFUGEE LAW 759
cisions involving forced sterilization or genital cutting, adjudicators
adopted the former approach. In the forced-sterilization cases, for exam-
ple, most adjudicators either did not define the social group,118 or defined
it as women.119 A small number of adjudicators identified more particu-
larized formulations120 or admitted claimants under the political opinion
ground.121 Similarly, in the genital-cutting cases, adjudicators generally
recognized social groups defined either as women122 or as women facing
genital mutilation.123 Only a few cases recognized more particularized
formulations.124
118 See e.g. Zheng, supra note 74; Chi, supra note 77; Re BAJ, supra note 75; Re X (EL), su-
pra note 78; Re B (KA), supra note 76; Re X (GC), [1993] CRDD No 64 (QL); Re W (HT),
[1992] CRDD No 514 (QL).
119 Re VCT, [2000] CRDD No 132 (QL), (21 June 2000) VA0-00592, online: RefLex Issue
146
also Re XPR, [2000] CRDD No 322 (QL) (social group defined as gender).
120 For exceptions to this trend, see Re PQP, [1997] CRDD No 42 (QL) (social group defined
as [u]nwed mothers in China [who have] … two children at para 18); Re FET, supra
note 77 (joint grounds of political opinion and membership in a particular social group,
the latter defined as persons wishing to exercise reproductive choice who are at risk of
forcible sterilization at para 24); Re L (LL), [1994] CRDD No 368 (QL) (social group de-
fined as parents); Re RZQ, supra note 100 (social group defined as Women in China
Who Fear Forced Sterilization Because They Have Violated the Chinese Birth Control
Policy of Having Only One Child at para 1).
121 See e.g. Re DEP, [2000] CRDD No 204 (QL), (10 October 2000) T99-11413, online:
RefLex Issue 154
RefLex Issue 132
No 124 (QL); Re F (NM), [1993] CRDD No 254 (QL).
122 See Re RPX, supra note 102; Re SCK, supra note 91; Re EKD, supra note 92; Re DVH,
supra note 87 at para 33 (social group defined as female children); Re XJV, supra note
87 (social group defined as gender); Re N (ID), supra note 102 (social group defined as
young women); Re G (LD), supra note 91 (social groups defined as women and mi-
nors).
123 See e.g. Re MTF, supra note 87 (social group defined as women in danger of Female
Genital Mutilation at para 1); Re IFL, supra note 86 (social group defined as minor
females at risk of clitoridectomy or genital mutilation at para 1); Re RSF, supra note
87 (social group defined as females who are subjected to Female Genital Mutilation at
para 1).
124 See e.g. Re IIJ, [1997] CRDD No 176 (QL) (social group defined as Nigerian [women] …
of the Ika tribe opposed to the groups social norms at para 6); Re FOH, supra note 87
(social group defined as women facing Female Genital Mutilation (FGM) and women
in danger of being put into a forced marriage at para 1); Re QQX, supra note 101 (social
group defined as young Somali female[s] who would be subjected to female genital mu-
tilation at para 8). See also Re WRI, supra note 103 (where allegations of genital cut-
ting were incidental to allegations of rape, and the IRB designated the social group as
760 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
2. Domestic Violence Cases
In contrast, in the domestic violence cases adjudicators frequently
identified highly particularized social groups defined by a combination of
gender, nationality, and personal circumstance. Examples of such particu-
larized formulations include: women in Hungary who are subject to do-
mestic violence,125 women in China subject to spousal abuse,126 Trini-
dadian women subject to domestic violence,127 Mexican women subject to
domestic violence,128 and Ghanaian women subject to spousal and family
abuse,129 to list just a few.130 Adjudicators also identified more particular-
ized social groups, such as women in Turkey who are victims in abusive
relationships or victims of abuse at the hand of rejected suitors, in cir-
cumstances where agents of the state, including the police, are unable or
unwilling to provide protection,131 Bulgarian women vulnerable to wife
abuse by men with government influence,132 Westernized Tajik woman
in a society moving towards Islamic orthodoxy, with no male protec-
tion,133 [wives] of … Machismo [men] … targeted for domestic vio-
lence,134 and elderly single women in Pakistan subject to abuse due to
kinship.135 Perhaps most explicitly, one Federal Court case defined the
social group as
new citizens of Israel who are women recently arrived from elements
of the former Soviet Union and who are not yet well integrated into
Israeli society, despite the generous support offered by the Israeli
government, who are lured into prostitution and threatened and ex-
ploited by individuals not connected to government, and who can
persons who are perceived to have contravened societal taboos in Nigeria, that is to say
rape victims and their children at para 1).
125 Re WGO, [2000] CRDD No 17 (QL) at para 1, (10 January 2000), V98-02797, online:
RefLex Issue 134
126 Re NGQ, [2000] CRDD No 52 (QL) at para 1, (9 March 2000), T98-07538, online: RefLex
Issue 138
127 Re LNH, [1999] CRDD No 15 (QL) at para 1.
128 Re MNN, [1998] CRDD No 286 (QL) at para 1.
129 Re D (RG), supra note 98.
130 See also Re ZEK, [1998] CRDD No 225 (QL) (abused women in Jamaica who are una-
ble to avail themselves of the strict provisions of the law, which on the face of it might
appear to provide some measure of protection at para 10); Re C (XN), [1993] CRDD No
27 (QL) (Ecuadorian women subject to wife abuse).
131 Re UEK, [2003] RPDD No 442 (QL) at para 1.
132 Re I (GF), supra note 98.
133 Re J (GX), [1993] CRDD No 301 (QL).
134 Re L (CB), supra note 113.
135 Re KXK, [1996] CRDD No 103 (QL) at para 27.
RIGHTS PROTECTION IN CANADIAN REFUGEE LAW 761
demonstrate indifference to their plight by front-line authorities to
whom they would normally be expected to turn for protection.136
While these formulations seem attractive in their capacity to recognize
that gender persecution is experienced in highly particularized ways, this
potential is never realized in the cases.
III. The Limits of Protection
The above analysis suggests adjudicators approach domestic violence
claims in distinctly different ways than they do other gender-persecution
claims. In cases involving forced sterilization and genital cutting, adjudi-
cators identified these practices both as acts of persecution and as funda-
mental rights violations. Adjudicators frequently cited human rights in-
struments and principles in these decisions and also deployed descriptors
such as morally shocking, inhuman, degrading, and barbaric. The
relative paucity of the state-protection analysis, combined with the desig-
nation of broad social groups defined as women, further suggests that
adjudicators view the practices concerned as universal rights violations
that target women as women. In contrast, in the domestic violence cases,
adjudicators identified domestic violence as a problem of culture rather
than as a human rights violation per se and adopted highly particularized
social-group formulations. The effects of these formulations is clear: when
legal actors portray domestic violence as the product of a foreign culture
to which only Bulgarian, Pakistani, or Westernized Tajik women are sub-
jectedas opposed to women writ largethey construct domestic vio-
lence as an othered harm perpetrated against only certain subcategories
of (non-Western) women.
Viewed together, these cases generate what Kwame Anthony Appiah
has identified as a script, a dominant narrative according to which the
refugee womans experience is evaluated and understood.137 As Appiah
explains, demanding rights for people as members of identity groupsin
Appiahs analysis, African Americans or homosexualsdemands that
there be a script for what it means to be black or gay. The problem with
this approach is that it ascribes various attributes and characteristics to
members of identity groups that often have little to do with their lived ex-
periences or, in the case of refugee claimants, with their protection needs.
In the domestic violence cases, the deployment of this script effectively re-
136 Litvinov v Canada (Secretary of State) (1994), 83 FTR 60 at para 11 (available on WL
Can).
137 The Ethics of Identity (Princeton: Princeton University Press, 2005) at 21-22.
762 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
quires claimants to perform the refugee identity by presenting as victims
of culture.138
In the analysis that follows, I focus on two reasons why I view this ap-
proach to be problematic. First, I argue that, by depicting domestic vio-
lence so narrowly as a product of culture, the cases fail to recognize fac-
tors besides culture that make women vulnerable to domestic violence.
This approach to domestic violence establishes unduly restrictive stand-
ards by which to evaluate womens protection needs. Second, I argue that
this approach constructs non-Western culture as a place where domestic
violence occurs because of the so-called inherent vulnerability of women
located in that cultural milieu. In so doing, it erects both legal and concep-
tual barriers for women who cannot authentically narrate their experi-
ence of violence through the script of cultural vulnerability. In these key
respects, the adjudicators of domestic violence cases remain insufficiently
attentive to the complex factors that make women vulnerable to persecu-
tion in domestic settings and risk denying protection to genuine refugees
facing real threats of persecution. I address each of these points in turn.
A. Obscuring Factors Besides Culture
In many of the cases surveyed, adjudicators not only located persecu-
tion in cultural difference but also depicted the claimants culture as made
up almost entirely of gender-subordinating values and thus as fundamen-
tally oppressive of women. For example, in Re Z.D.M., the IRB held that
state protection was lacking in Egypt because Egyptian patriarchal cul-
ture and traditions were fundamentally repressive and hostile toward
women and [w]omens experiences of beating, battering and sexual or
psychological abuse have been accepted and normalized in Egyptian tra-
ditions.139 Similarly, in Re R.Z.B., the IRB held that state protection was
lacking in Barbados because Barbados, as other Anglophone Caribbean
societies[,] has a strong patriarchal culture and prevailing gender ideolo-
138 It is important to recognize that these scripts often serve as valuable advocacy tools
and can prove effective in securing protection for certain claimants. This notwithstand-
ing, I suggest excessive reliance on these scripts establishes incorrect criteria by which
to evaluate refugee claims.
139 [1997] CRDD No 315 (QL) at para 6 (Evidence, statutory declaration by Amani el Jack,
Ph.D. candidate in womens studies). See also Re G (ST), [1994] CRDD No 115 (QL) (the
IRB held that state protection was lacking given evidence that Pakistani society is a
male dominated one where women are expected to endure the violence and abuse of
their husbands and given that Pakistan is an agricultural economy with patriarchy
still preserving itself through feudal principles of unconditional supremacy of men over
women (ibid (Evidence, Wife Assault: Pakistan; An Overview)), and further noted
that the social ethos in Pakistan militates against a wife seeking the protection of the
state if she has been physically abused by her husband (Re G (ST), supra note 139)).
RIGHTS PROTECTION IN CANADIAN REFUGEE LAW 763
gies place womens interest as secondary to that of men.140 In Re C.
(X.N.), the IRB held that state protection was lacking in Ecuador since
Ecuadors patriarchal culture and tradition rendered the state unwill-
ing to protect the rights of women who are subject to domestic abuse.141
Perhaps most explicitly, in Re B. (P.V.), the IRB held that state protection
was lacking in Somaliland, given evidence presented at the hearing that
described Somali culture as so overwhelmingly restrictive and patriar-
chal that Somali women had no protection from domestic violence.142
Based on this evidence, the board concluded that Somaliland means op-
pressed women.143 In this totalizing formulation, the board presented
Somaliland as being synonymous with the oppression of women, suggest-
ing that to be a woman from Somaliland is to be a victim of oppression.
These formulations are striking because they incorrectly present for-
eign cultures as internally homogenous and comprised primarily (at
times, exclusively) of gender-subordinating values. By presenting foreign
cultures as fundamentally oppositional to womens rights, the cases con-
vey the impression that culture is the root cause of the claimants perse-
cution. They further convey the impression that the oppression of non-
Western women (and the violence they suffer as a result) is integral to
these cultures and produced by quintessentially foreign, barbaric, and
misogynistic cultural norms. This approach fails to recognize that domes-
tic violence is never created solely by culture, and it leaves unexamined
the broader societal arrangements that make women vulnerable to perse-
cution in domestic settings. It also risks obscuring, in potentially harmful
ways, the factors besides culture that make women vulnerable to persecu-
tion. The sheer number of cases that come before the IRB, advanced by
diversely situated women from various countries, should itself demon-
strate that the problem of domestic violence cannot be attributed to cul-
ture alone. Narrowly depicting domestic violence as a product of culture
incorrectly attributes responsibility to a static, insular, and fundamental-
ly foreign constructed entity, and not, for example, to systemic gender hi-
erarchies, uneven power distributions, and economic factors that trans-
cend culture and permeate other aspects of womens lives.
140 [1997] CRDD No 185 (QL) at para 55 (Evidence, letter of V. Eudine Barriteau, head of
the Centre for Gender and Development Studies at the University of the West Indies).
The tribunal further concluded that the persecution the claimant suffered is grounded
in her spouses perception of women as objects which can be controlled and abused at
will (Re RZB, supra note 140 at para 39).
141 Supra note 130. See also Re G (DM), supra note 114 (relying on similar evidence).
142 Supra note 94, citing US, Department of State, Overview of Country Reports on Human
Rights Practices for 1993 (Washington, DC: Department of State, 1993) at 263.
143 Re B (PV), supra note 94 (Evidence of Zimzim Abdi, a womens rights advocate) [em-
phasis added].
764 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
No less significantly, this approach fails to recognize that culture is
always contested within communities and constantly subjected to change
and transformation. As Bonnie Honig writes, culture is something rather
more complicated than patriarchal permission for powerful men to subor-
dinate vulnerable women.144 She further explains:
[It] is a way of life, a rich and timeworn grammar of human activity,
a set of diverse and often conflicting narratives whereby communal
(mis)understandings, roles, and responsibilities are negotiated. As
such, culture is a living, breathing system for the distribution and
enactment of agency, power, and privilege among its members and
beyond. Rarely are those privileges distributed along a single axis of
difference such that, for example, all men are more powerful than all
women.145
Homi Bhabha similarly cautions against totalizing formulations. The
constructed opposition between (foreign) cultures and womens rights, he
argues, mistakenly constructs non-Western societies as patriarchal and
oppressive, and identifies non-Western cultures as the root of these prob-
lems.146 These formulations fail to recognize that cultural patriarchy and
oppression are always constructed through, and informed by, a myriad of
other factors, such as history, race, or socio-economic status. They errone-
ously depict minority women as abject subjects of their cultures, hud-
dled in the gazebo of group rights, preserving the orthodoxy of their dis-
tinctive cultures in the midst of the great storm of Western progress.147
In so doing, they also construct non-Western women as being deprived of
meaningful choice and forced to endure the violence of their cultures.
Leti Volpps analysis of the role played by discourses of culture in gen-
der-violence claims in the United States aptly summarizes the problems
with such formulations. Analyzing disparities in US approaches to domes-
tic violence in immigrant and white communities, Volpp explains:
144 My Culture Made Me Do It in Joshua Cohen, Matthew Howard & Martha C Nuss-
baum, eds, Is Multiculturalism Bad for Women? (Princeton: Princeton University Press,
1999) 35 at 36.
145 Ibid at 39. See also Leti Volpp, Feminism Versus Multiculturalism (2001) 101:5 Col-
um L Rev 1181 at 1192 [Volpp, Feminism].
146 Homi K Bhabha, Liberalisms Sacred Cow in Cohen, Howard & Nussbaum, supra
note 144, 79 at 81-82. As Bhabha further argues, these [s]tereotypes disavow the com-
plex, often contradictory contexts and codessocial or discursivewithin which the
signs and symbols of a culture develop their meanings and values as part of an ongoing,
transformative process (ibid at 81). Such formulations not only ignore the complex
ways in which patriarchy and culture intersect and inform one another but also con-
struct the norms of Western liberalism … as both the measure and mentor of minority
cultures … a salvage operation, if not salvation itself (ibid at 83).
147 Ibid at 80.
RIGHTS PROTECTION IN CANADIAN REFUGEE LAW 765
Part of the reason many believe the cultures of the Third World or
immigrant communities are so much more sexist than Western ones
is that incidents of sexual violence in the West are frequently
thought to reflect the behavior of a few deviantsrather than as
part of our culture. In contrast, incidents of violence in the Third
World or immigrant communities are thought to characterize the
cultures of entire nations.
The philosopher Uma Narayan has calculated that death by
domestic violence in the United States is numerically as significant a
social problem as dowry murders in India. But only one is used as a
signifier of cultural backwardness: They burn their women there.
As opposed to: We shoot our women here. Yet domestic violence
murders in the U.S. are just as much a part of American culture as
dowry death is a part of Indian culture. In the words of Narayan,
when cultural explanations are given for fatal forms of violence on-
ly in the Third World, the effect is to suggest that Third World wom-
en suffer death by culture.148
Such an approach, Volpp argues, suggests that only minority cultures are
… traditional, and made up of unchanging and longstanding practices that
warrant submission to cultural dictates.149 In hasty expressions of dis-
taste for other cultures perceived as primitive and backward, she cau-
tions, we miss the complex ways in which power actually functions in
particular communities.150 This discursive practice overlooks the various
relations of power that inform violence, both in other cultures and in our
own cultures. It mistakenly conveys the impression that incidents of do-
mestic violence that occur in Western settings are products of individual
aberrations or deviances rather than cultural suppositions, entrenched
inequalities, material disparities, or systemic failures.
B. Constructing Refugee Women as Victims of Culture
Indeed, by depicting foreign cultures as oppositional to womens
rights, the domestic violence cases construct non-Western culture as a
148 Feminism, supra note 145 at 1186-87 [footnotes omitted].
149 Ibid at 1191. These assumptions also problematically view foreign cultures as clearly
bounded, self-generated entities; they also preclude recognition of foreign cultures as
themselves contested and negotiated within communities and of cultural identities as
products of resistance or transformation: see generally Sarah Song, Justice, Gender,
and the Politics of Multiculturalism (Cambridge, UK: Cambridge University Press,
2007). As Song argues, these assumptions overlook … the polyvocal nature of all cul-
tures and the ways in which gender practices in both minority and majority cultures
have evolved through cross-cultural interactions (ibid at 4).
150 Leti Volpp, Blaming Culture for Bad Behavior (2000) 12:1 Yale JL & Human 89 at
113 [Volpp, Blaming Culture].
766 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
place where domestic violence occurs because of the perceived vulnerabil-
ity of women situated in that cultural milieu. These formulations seem to
presume that women brought up in non-Western societies are less likely
to be able to resist or struggle against domestic violence because of their
culture. For example, in a case involving a claimant from Trinidad, the
IRB concluded that state protection would be lacking because the cultur-
al tradition of the claimants nationality … produced the dependency de-
scribed.151 The board held that the violence suffered by the claimant cre-
ated a paralysing dependency which she has been unable to overcome,
which was reinforced by her cultural tradition and prevented her from
seeking state protection.152 Similarly, in Re Y. (O.E.), the board allowed
the claim, in part, on grounds that the claimant was under constant
pressure to perform the role of an obedient, submissive, good wife, a role
which prevails in the traditions of Indian culture.153 In a case involving a
claimant from Venezuela, the board relied on evidence offering a cultural
interpretation of the gendered attitudes of Venezuelan society to con-
clude that Latin women typically feel helpless to confront their spouses
directly, and that [f]ear of eliciting violence, including the threat of
death, frequently inhibits women from proactively defending them-
selves.154
As above, it is worth emphasizing that my concern with these cases is
not with the finding that cultural norms and traditions can be paralyzing
or oppressive, and thus trap certain women in cycles of violence. My con-
cern with these cases is rather with the unintended consequences that
stem from locating persecution so narrowly in cultural difference. My
study pointed to a small number of cases in which claimants were denied
refugee status because they did not present as victims of culture. In a
case involving a Brazilian claimant fearing domestic violence, for exam-
ple, the IRB cited the claimants perceived capacity for independence as a
reason for denying her claim.155 It held the claimant was unable to satisfy
the refugee definition because her adjustment in Canada demonstrate[d]
her capabilities for independence and suggested she would be able to live
safely in Brazil.156 In another case involving a claimant from St. Vincent,
the board similarly determined that the claimants perceived capacity for
151 Re U (BQ), [1993] CRDD No 236 (QL) [emphasis added].
152 Ibid.
153 Supra note 98.
154 Re QBA, [1996] CRDD No 211 (QL) (Evidence, report of an anonymous expert).
155 See Re Y (PD), [1993] CRDD No 315 (QL).
156 Ibid.
RIGHTS PROTECTION IN CANADIAN REFUGEE LAW 767
independence militated against a finding of persecution.157 While the
board found that the claimants story clearly show[ed] that she was a vic-
tim of domestic assault and death threats by her former boyfriend,158 it
held that the claimant did not exhaust all the avenues of protection
available to her before leaving St. Vincent159 and thus could not demon-
strate a failure of state protection. Noting that the claimant was an as-
tute, intelligent, young woman who ha[d] demonstrated that she [was] …
capable of seeking out information and support, if need be,160 the board
concluded that
the claimant will be able to seek out the protection if and when she
needs and that the protection available to her will be adequate, if
not perfect. She will not be one of those victims of domestic violence
who will be either reluctant to press charges or not seek out support
from the existing facilities like the National Council of Women. The
panel is satisfied that the rationale for the claimant not to have uti-
lised all the resources available to her in seeking protection–
namely, her lack of knowledge due to her age and inexperience–is
no longer valid now.161
The board denied the claim based on the additional findings that the
claimants former boyfriend did not have sufficient influence to interfere
with law authorities as she had alleged, that his abusive behaviour
stemmed from his drinking habits and was thus not necessarily directed
only at her, and that she could procure financial assistance from relatives
abroad to secure legal help.
The case of Re T.D.D. offers another example in which refugee status
was denied to a claimant who did not fit the mould of a victim of cul-
ture.162 It involved a claimant from India who alleged a well-founded fear
of persecution on the grounds of her political opinion as well as her mem-
bership in the particular social group women without male support.163
As in the cases above, the claimant was denied refugee status because her
perceived capacity for independence militated against a finding of perse-
cution.164 The IRB reasoned that, as a well-educated career woman, a
witness who appeared articulate and self-possessed at her hearing …
[and] a wife who was unapologetically outspoken in her objections to her
157 See Re DYS, [1995] CRDD No 168 (QL).
158 Ibid at para 7.
159 Ibid at para 20.
160 Ibid at para 8.
161 Ibid at para 20 [emphasis added].
162 [1998] CRDD No 103 (QL).
163 Ibid at para 1.
164 Ibid at paras 15-21.
768 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
husbands smoking and drinking, it was unlikely that the claimant would
be completely passive and subordinate as she had alleged.165 It further
found that the Guidelines were of no assistance in the case since the
claimant, having a masters degree, teaching experience, and supportive
male family members, was unlike the traditional stereotype of an Indian
woman and was well qualified to live without her husband and support
her children.166 Here, the claimants educational background prevented
her from satisfying acknowledged cultural stereotypes and precluded her
recognition as a refugee.167
These cases show the problems of linking a finding of persecution to a
script of inherent cultural vulnerability. Such an approach effectively re-
quires women to narrate their experience of persecution in terms of that
vulnerability; but for some women, this is not their story. This approach
has consequences that are potentially quite damaging: it perpetuates the
faulty assumption that educated or self-sufficient women who do not ap-
pear to be victims of culture are less likely to be persecuted by domestic
violence. By adopting this approach, the domestic violence cases establish
incorrect criteria by which to assess womens refugee claims. They risk
excluding from protection women who face real threats of persecution but
cannot authentically narrate their experience of violence through the
script of cultural vulnerability.168 The above analysis thus shows that
while women persecuted by domestic violence are still being admitted as
refugees, the criteria established for their admission are more limiting
than they should be. The domestic violence cases remain insufficiently at-
tentive to the conditions that make women vulnerable to persecution in
domestic settings.169
165 Ibid at paras 13-14.
166 Ibid at paras 11, 39.
167 For an interesting discussion of how discourse on gender and culture often presumes
that Western women, because of their educational background and independence, are
defined by their abilities to make choices, whereas Third World women are defined by
their submission to cultural dictates, see Volpp, Feminism, supra note 145 at 1191-93.
Volpps analysis does not precisely map onto the above-noted scenario, but it offers an
interesting point of comparison.
168 My study also identified one case that had such an outcome and involved harms arising
outside of the domestic context: Re IJI, [2001] CRDD No 389 (QL) (denying status for a
claimant from Cameroon fearing genital cutting on the grounds that the claimant did
not fit the image typically associated with victims of genital cutting. The board rea-
soned that the claimant is 21 years old and holds a diploma and that, as a result,
there was nothing about her of the uneducated young girl [typically] … at risk at para
12).
169 It is important to emphasize that some reported decisions do offer nuanced assessments
of the relationship between domestic violence and culture, for example, in Re C (XN)
(supra note 130). The IRB engaged in a nuanced analysis of how culture informs do-
RIGHTS PROTECTION IN CANADIAN REFUGEE LAW 769
Conclusion
The fact is that, over almost two decades and in a large numbers, ad-
judicators adopted such different methods of analysis in domestic violence
cases as compared with other gender cases. These differences can be at-
tributed to a range of factors, such as evidentiary hurdles and varying
grant rates between IRB adjudicators,170 to list just a few. But in addition
to these factors, the differences can also be attributed to the perceived dis-
tinction between the types of claims at issue. Forced sterilization and gen-
ital cutting are generally regarded as exotic harms that can easily be la-
belled as rights violations in the Canadian legal lexicon and are thus
broadly imagined as the proper subjects of refugee law. Because forced
sterilization and genital cutting are perceived to occur only in foreign
countries, Canada can assert its ability to protect women from these
harms with unambiguous certainty. In contrast, domestic violence, rape,
and sexual assault are familiar harms that are also clearly prevalent
within Canada. These claims cut along familiar lines of difference and
cannot be labelled as persecutory rights violations with quite the same
rhetorical ease. Since protecting women from domestic violence poses a
challenge to even the most well-intentioned of states, as Melanie Randall
argues, domestic violence cases create an unacknowledged dilemma for
refugee-receiving states like Canada.171 Indeed, despite the availability of
state protection in Canada, many Canadian womenparticularly Aborig-
inal womensuffer severe violence in domestic settings.172 Given the
mestic violence persecution and concluded that violence is the result of structural rela-
tions of power, dominance and privilege established among men and women in society
(ibid (Evidence, notes from a workshop by The Ecuadorian Centre for Action and Ad-
vancement of Women (CEPAM))); the board further held that the Ecuadorian govern-
ments reluctance to intervene in domestic violence disputes results in a culture of tol-
erance [that] has been built up over the years and forms part of the ethic of Ecuadorian
society(Re C (XN), supra note 130). See also Re WGY, [1997] CRDD No 291 (QL); Re
XNG, [1998] CRDD No 21 (QL); Re ZHY, [1997] CRDD No 136 (QL).
170 As Sean Rehaag has shown, refugee grant rates vary significantly between IRB adjudi-
cators, with some according refugee status in virtually all cases and others granting
refugee status on only rare occasions: see Troubling Patterns in Canadian Refugee Ad-
judication (2007-2008) 39:2 Ottawa L Rev 335.
171 Refugee Law and State Accountability for Violence Against Women: A Comparative
Analysis of Legal Approaches to Recognizing Asylum Claims Based on Gender Persecu-
tion (2002) 25 Harv Womens LJ 281 at 284.
172 The problem of domestic violence is acutely felt in Aboriginal communities. Statistics
Canada indicates that the rate of domestic violence against Aboriginal women is more
than three times that experienced by non-Aboriginal women and, further, that Aborigi-
nal women are eight times more likely than non-Aboriginal women to die of domestic
violence: see Statistics Canada, Measuring Violence Against Women: Statistical Trends,
2006 (Ottawa: Minister of Industry, 2006) at 64-65, 67, online: Statistics Canada
770 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
prevalence of domestic violence within Canada, can Canada conclusively
assert its ability to protect victims of domestic violence from harm? If the
ability to protect is indeed the test not only of a subjects status as a refu-
gee but also of Canadas status as provider of refuge, what happens in cas-
es where Canadas ability to protect may not be clear? Can Canada still
assert its valueand essenceas a place that protects if it cannot fully
protect women from domestic violence?
Audrey Macklins analysis of this dynamic correctly summarizes its
complexity. As Macklin argues, cases involving familiar harms and famil-
iar scenarios require adjudicators to veer perilously close to confronting
the fact that the same country that has won deserved praise for enacting
the Guidelines is also implicated in practices that amount to gender per-
secution.173 The adjudicative response to this is a defensive one: the care-
ful exercise of characterizing the violence suffered by refugee women as a
product of culture operates as a protective device that distinguishes it
from the violence suffered by Canadian women. By locating persecution in
cultural difference, adjudicators subtly sidestep the possibility that, de-
spite Canadas clear commitment to gender equality and rights protection,
women in Canada still suffer persecution. Locating persecution in cultural
difference allows Canadian legal actors to avoid the uncomfortable conclu-
sion that the violence suffered by refugee women echoes, in Martha Mi-
nows words, something familiar, in reality or metaphor, in the practices
of the dominant Western nations and in gender hierarchies only too fa-
miliar in their own world.174 The assumption that domestic violence is a
product of foreign culturesrather than a combination of power struc-
tures, material disparities, and cultural arrangementssubtly colours
how Canadian legal actors think about, adjudicate, and evaluate domestic
violence claims. This assumption makes it harder to recognize domestic
violence as a rights violation in the absence of culture, not just within
but also beyond the confines of refugee law. In this key respect, the adju-
dicative tendency to locate domestic violence persecution in cultural dif-
Brzozowski, Andrea Taylor-Butts & Sara Johnson, Victimization and Offending Among
the Aboriginal Population in Canada (2006) 26:3 Juristat 1, online: Statistics Canada
Amnesty International, No More Stolen Sisters: The Need for a Comprehensive Response to
Discrimination and Violence Against Indigenous Women in Canada (London, UK: Amnes-
ty International, 2009) at 1, online: Amnesty International
173 Supra note 41 at 266.
174 About Women, About Culture: About Them, About Us in Richard A Shweder, Martha
Minow & Hazel Rose Markus, eds, Engaging Cultural Differences: The Multicultural
Challenge in Liberal Democracies (New York: Russell Sage Foundation, 2002) 252 at
254.
RIGHTS PROTECTION IN CANADIAN REFUGEE LAW 771
ference operates to suppress the commonality of domestic violence across
cultures and to elide its domestic prevalence.175
Beyond establishing incorrect criteria by which to understand domes-
tic violence, the IRBs domestic violence cases also suggest that the deci-
sions made in this field of law do not merely reflect universally accepted
human rights standards. Adjudicators do not assess refugee claims based
solely on rights criteria or universally accepted norms. Rather, they filter
these criteria through national ideologies, ideals, and anxieties. This pat-
tern calls into question the claim that, by incorporating human rights
principles into the refugee analysis, Canadian refugee law has moved
away from politically motivated considerations. Instead, it implies that
the process is deeply intertwined with Canadian national values and
Canadas national self-understanding.
Recognizing the choices made in the domestic violence cases as in-
formed by a myriad of unstated assumptions, political ideologies, and de-
fensive anxieties offers a more accurate account of the complex dynamics
of refugee protection. It makes clear that the findings in these cases do
not always reflect universally accepted or objective criteria. This realiza-
tion makes it easier to deconstruct and reconstruct these findings to re-
flect more accurate understandings of gender violence and gender differ-
ence. It allows us to recognize persecution as an open-ended category
that acquires content and meaning not through some external morality
but through our own perceptions, positionings, and beliefs. It allows us to
recognize that culture is not static, innate, or immutable, but fluid and
discursively produced. It allows us to recognize domestic violence as a
complex and globally pervasive phenomenon that stems from cultural dy-
namicsas well as extant power dynamics, material disparities, and gen-
der imbalances that challenge even rights-protecting states like Canada.
A more accurate understanding of the dynamics of domestic violence per-
secution makes it possible to advocate for a shift in the discourse, for an
approach that moves beyond its current limits.
175 As Volpp argues, The consequences of selectively blaming culture in this way are strik-
ing: These discursive practices cause us to overlook specific relations of power, both in
other cultures and in our own society (Blaming Culture, supra note 150 at 113).
