Women as Refugees

1
Women as Refugees

• international scenarios
• sources of gender bias in the definition
• international approaches

2
1993 IRB Guidelines on Gender1993 IRB
Guidelines Fearing Gender Related Persecution

• interpretive guidelines, not a change in the law
• persecution types of harm feared, relationship
  with state actions, religious and customary laws
  laws of general application
• relationship of gender with the 5 grounds
• questions of nexus
• evidentiary questions
• countries with generalized discrimination or
  oppression
• onus on counsel, head of family proceedings

3
Shah decision, HL 1999

• women a psg in Pakistan note Lord Millett
  dissent note use of Ward as well as US and
  Australian case law
• preamble of the Convention fundamental rights
  and freedoms, anti-discrimination
• central issue are they members of a particular
  social group

4
narrowing the issue see 339

• other aspects satisfied
• persecution found in failure of the state to
  offer protection (despite constitution)
• note analysis of laws of general application
• cultural relativism? are human rights western?

5
Shah analysis of PSG

• broad and narrow construction
• large group not an issue
• no question of cohesiveness, cooperation,
  interdependence
• must exist independently of persecution

6
Causation

• nexus for reasons of
• questions of the but for test and the
  effective cause test
• Hoffman LJ links causation to place of the state
  step 1 personal, step 2 establishes causation
  (366)
• crux of Lord Milletts dissent

7
Two recent RPD examples

• WLH abusive relp in Mexico, strong social class
  dimensions to the story, use of guidelines, IFA,
  explanation for delay in claiming, documentary
  evidence
• BWZ Philippines, state protection, considers a
  variety of evidence, question of credibility
• comparisons btw these two examples?

8
Refugee Law Exclusions

• cessation and exclusion both contemplated at
  international law
• cessation has not been at issue in Canada, though
  arises sometimes a linked to exclusion provisions
• dual commitment to international morality (those
  who do not deserve protection) and to practicality

9
Exclusion Provisions

• s. 98
• Article 1 E has taken up residence and has
  rights elsewhere
• Article 1 F i) crimes against peace, humanity, or
  war crimes ii) serious non-political crime
  outside country of refuge and before becoming
  refugee iii) guilty of acts contrary to purposes
  of the UN
• Canada adds in s. 100 inadmissibility due to
  security grounds, human rts violations serious
  or organized criminality

10
Article 33

1. No Contracting State shall expel or return
   (refouler) a refugee in any manner whatsoever
   to the frontiers of territories where his life or
   freedom would be threatened on account of his
   race, religion
2. The benefit of the present provision may not,
   however, be claimed by a refugee whom there are
   rble grounds for regarding as a danger to the
   security of the country in which he is, or who,
   having been convicted by final jdgt of a partic
   serious crime, constitutes a danger to the
   community of that country.

11
Pushpanathan v Canada SCC 1998

• Acts contrary to the purposes of the United
  Nations?
• note for strongly worded dissent
• interpretive principles and review of treaty
  interpretation
• good faith, ordinary meaning
• context in light of object and purpose
• supplementary if ambiguous or obscure

12

• affirms overarching human rights object and
  purpose
• clause to be applied with caution bc of
  generality
• .to exclude those individuals responsible for
  serious, sustained or systemic violations of
  fundamental human rights which amount to
  persecution in a non-war setting

13

• no exhaustive list is possible
• look to key h.r. documents like the Torture
  Convention
• other international law documents (i.e. Tehran
  case)
• not necessarily persons in positions of power
• drug trafficking on any scale is not to be
  considered contrary to the purposes and
  principles of the UN
• outcome!

14
Ri (Re) 2003 RPD

• high ranking official in Nth Korean govt fears
  execution, torture and similar harm to self and
  family
• political opinion case
• found to be complicit in crimes against
  humanity/h.r. abuses knowledge, oppty to leave,
  recruitment, personal and knowning partcptn
  shared common purpose
• allowed to stay on HC