Last Updated on December 21, 2010 by Steven Meurrens
In 1996, the Immigration and Refugee Board released Guideline 4 titled “Women Refugee Claimants Fearing Gender-Related Persecution”. In an immigration case which focuses on gender, the reasons of the Refugee Protection Division must reflect the specific situation of an applicant, with particular attention to Guideline 4 (Zolotova v. Canada, 2011 FC 193).
A person is generally considered to be a convention refugee if he/she is persecuted on the basis of race, religion, nationality, membership of a particular social group, or political opinion. The definition of a Convention refugee does not include gender as an independent enumerated ground. However, it is generally recognized that gender-related persecution is a form of persecution which should be assessed. Where a woman claims to have a gender-related fear of persecution, the central issue is thus the need to determine the linkage between gender, the feared persecution and one or more of the definition grounds.
Guideline 4 was therefore created to address the following four critical issues:
- To what extent can women making a gender-related claim of fear of persecution successfully rely on any one, or a combination, of the five enumerated grounds of the Convention refugee definition?
- Under what circumstances does sexual violence, or a threat thereof, or any other prejudicial treatment of women constitute persecution as that term is jurisprudentially understood?
- What are the key evidentiary elements which decision-makers have to look at when considering a gender-related claim?
- What special problems do women face when called upon to state their claim at refugee determination hearings, particularly when they have had experiences that are difficult and often humiliating to speak about?
The Framework of Analysis
The Guideline provides a detailed examination of these four issues, and can be viewed here. In answer to these questions, the Guideline provide the following framework of analysis:
- Assess the harm feared by the claimant. Does the harm feared constitute persecution?
(a) For the treatment to likely amount to persecution, it must be a serious form of harm which detracts from the claimant’s fundamental human rights.
(b) To assist decision-makers in determining what kinds of treatment are considered persecution, an objective standard is provided by international human rights instruments.
- Ascertain whether the claimant’s fear of persecution is based on any of the grounds, singly or in combination, enumerated in the Convention refugee definition. Considerations:
- It is necessary to ascertain the characteristic of the claimant which places her or members of her group at risk, and to ascertain the linkage of that characteristic to a Convention ground.
- Gender is an innate characteristic and it may form a particular social group.
- A subgroup of women may also form a particular social group. Women in these particular social groups have characteristics (possibly innate or unchangeable) additional to gender, which make them fear persecution.
- The gender-defined group cannot be defined solely by the fact that its members share common persecution.
- Determine whether the claimant’s fear of persecution is well-founded. This includes an assessment of the evidence related to the ability or willingness of the state to protect the claimant and, more generally, the objective basis of the claim. Considerations:
- There may be little or no documentary evidence presented with respect to the inadequacy of state protection as it relates to gender-related persecution. There may be a need for greater reliance on evidence of similarly situated women and the claimant’s own experiences.
- The claimant need not have approached non-state organizations for protection.
- Factors including the social, cultural, religious, and economic context in which the claimant finds herself should be considered in determining whether it was objectively unreasonable for the claimant not to have sought state protection.
- Where a woman’s fear relates to personal-status laws or where her human rights are being violated by private citizens, an otherwise positive change in country conditions may have no impact, or even a negative impact, on a woman’s fear of gender-related persecution.
- If required, determine whether there is a possibility of an internal flight alternative. Considerations:
- Whether there would be undue hardship for the claimant, both in reaching the location of the IFA and in establishing residence there.
- Religious, economic, social and cultural factors, among others, may be relevant in determining the reasonableness of an IFA for a woman fearing gender-related persecution.
Battered Women Syndrome
A specific issue that arises in gender-based cases is that the refugee claimant often did not flee a violent situation at the first opportunity. In Zolotova, for example, the Refugee Protection Division stated that:
 … The claimant alleges that she is unable to get rid of her “boyfriend” from her own apartment. Yet the claimant, by her own admission, did nothing in order to have him removed during their relationship or subsequent to its ending in April of 2006 …
The courts have ruled, however, that such inaction should not necessitate the conclusion that there was no violence. In R v Lavallee,  1 SCR 852, Justice Bertha Wilson of the Supreme Court noted the relationship between battered woman syndrome and how it gives rise to behavior that would otherwise seem irrational. She stated that:
… The obvious question is if the violence was so intolerable, why did the appellant not leave her abuser long ago? This question does not really go to whether she had an alternative to killing the deceased at the critical moment. Rather, it plays on the popular myth already referred to that a woman who says she was battered yet stayed with her batterer was either not as badly beaten as she claimed or else she liked it. Nevertheless, to the extent that her failure to leave the abusive relationship earlier may be used in support of the proposition that she was free to leave at the final moment, expert testimony can provide useful insights. Dr. Shane attempted to explain in his testimony how and why, in the case at bar, the appellant remained with Rust:
She had stayed in this relationship, I think, because of the strange, almost unbelievable, but yet it happens, relationship that sometimes develops between people who develop this very disturbed, I think, very disturbed quality of a relationship. Trying to understand it, I think, isn’t always easy and there’s been a lot written about it recently, in the recent years, in psychiatric literature. But basically it involves two people who are involved in what appears to be an attachment which may have sexual or romantic or affectionate overtones.
And the one individual, and it’s usually the women in our society, but there have been occasions where it’s been reversed, but what happens is the spouse who becomes battered, if you will, stays in the relationship probably because of a number of reasons.
One is that the spouse gets beaten so badly — so badly — that he or she loses the motivation to react and becomes helpless and becomes powerless. And it’s also been shown sometimes, you know, in — not that you can compare animals to human beings, but in laboratories, what you do if you shock an animal, after a while it can’t respond to a threat of its life. It becomes just helpless and lies there in an amotivational state, if you will, where it feels there’s no power and there’s no energy to do anything.
Apparently, another manifestation of this victimization is a reluctance to disclose to others the fact or extent of the beatings. For example, the hospital records indicate that on each occasion the appellant attended the emergency department to be treated for various injuries she explained the cause of those injuries as accidental…