GENDER PERSECUTION and REFUGEE LAW REFORM IN CANADA[1]

by Lobat Sadrehashemi

Gender is not one of the grounds of asylum listed in the 1951 Convention relating to the Status of Refugees, upon which Canadian refugee law is based. Despite this, gender-related persecution has been found by our courts and the international legal community as being a basis on which to seek asylum. Typically, gender-related claims for protection have related to family or domestic violence, acts of sexual violence, forced marriage, punishment for transgression of social mores, coerced family planning, or female genital mutilation.[2] Canada was the first country to develop guidelines to recognize the special issues that arise for women claimants in the refugee process.[3]

I practice refugee and immigration law in Vancouver where the majority of my cases have involved women who have experienced some form of violence. As a refugee lawyer my job is to make arguments about how a particular claim fits within the refugee definition based on the facts of my client`s case and the law. The most challenging part of that work is ensuring that my client is able to fully present the facts of their claim to the decision-maker. For women who have experienced violence this can be extremely difficult; often these are facts that they have not disclosed to anyone and now are expected to disclose to a stranger. My work with these women has taught me that a significant struggle in these cases is being able to create the right conditions for highly traumatized claimants to be able to present their story to a decision-maker.

Over the past few years there have been a series of proposals to fundamentally alter Canada’s refugee system. In June of 2010 The Balanced Refugee Reform Act (formerly Bill C-11) received Royal Assent.[4] That legislation provided until June 2012 for the Immigration and Refugee Board (“the Board“) to implement the new law. Prior to the required implementation date, the now majority Conservative government introduced, in February of 2012, Bill C-31 which amended the Immigration and Refugee Protection Act (“IRPA”), the current law governing immigration and refugee matters, and the Balanced Refugee Reform Act which had been passed a year and a half earlier. The Protecting Canada’s Immigration System Act, (“C-31”) received Royal Assent in June of 2012. C-31 and associated regulations fundamentally alter the way in which refugee claims will be determined in Canada. Some of the law is already in force and much of it has yet to be implemented. The Board has advised that they expect that the changes to the way in which refugee claims are processed will be implemented by January of 2013.[5] The sweeping changes set out in C-31 were passed four months after they were first proposed. There was little time for the general public, civil servants, researchers, and the legal community to digest the fundamental shift in how refugee claims would now be processed in Canada. There are still many questions about how the new system will play out once it has been implemented.

This article will explore some of the possible consequences of these reforms on women whose fear of persecution relates to their gender. Many of the comments about the possible consequences for these women would also apply to other refugee claimants who are severely traumatized and vulnerable. Instead of making it easier for the most vulnerable claimants to present their stories, in my view, the amendments to IRPA under C-31 and the proposed regulations make it much more likely that the full facts of these types of cases are not presented to refugee decision-makers.[6] Moreover, if their claims fail at the Board, the changes in C-31 make it less likely that they will be able to remain in Canada on humanitarian grounds.

The full text of article is available here: GENDER PERSECUTION and REFUGEE LAW REFORM IN CANADA

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[1] Written by Lobat Sadrehashemi, refugee and immigration lawyer, September 2012. A previous version of this paper was prepared in response to Bill C-11, the Balanced Refugee Reform Act in April of 2011; due to the introduction and passing of Bill C-31, the Protecting Canada’s Immigration System Act, which further fundamentally alters our refugee system, an update of that paper was required.

[2]UNCHR Guidelines on International Protection: Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, May 2002

[3] Chairperson Guideline 4 – Women Refugee Claimants Fearing Gender-Related Persecution

[4] An Act to amend the Immigration and Refugee Protection Act and the Federal Courts Act

[5] Ross Pattee, Deputy Chair of the Immigration and Refugee Board, IRB Rules Information Session – Vancouver, August 20, 2012.

[6] The changes discussed in this paper are based upon the provisions in the Protecting Canada’s Immigration System Act, (“C-31”), the Balanced Refugee Reform Act, and its accompanying regulations. A series of accompanying regulations have been published in the Canada Gazette. The proposed rules for the Refugee Protection Division of the Immigration and Refugee Board have also been published in the Canada Gazette and can be found here.

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