Domestic Violence and Gender-Based Persecution: How Refugee Adjudicators Judge Women Seeking Refuge from Spousal Violence—and Why Reform Is Needed

Constance MacIntosh

Abstract


This report is an effort to address information gaps regarding how gendered claims are addressed by adjudicators at Canada’s Refugee Protection Division of the Immigration and Refugee Board of Canada (the RPD). It looks at one specific type of gendered claim: persecution through domestic or intimate violence. The study considers all the RPD decisions from 2004 to 2009 and judicial reviews from 2005 to 2009 that were reported in the Quicklaw LexisNexis service. These decisions are analyzed both quantitatively and qualitatively. This report finds adjudicators consistently identify domestic violence as a form of gendered persecution that can form a nexus to a convention ground. However, despite contrary directions from the Gender Guidelines, adjudicators often fail to recognize the social, cultural, economic, and psychological dynamics of domestic abuse as legally relevant for their assessment of state protection. There is a striking failure on this account when it comes to determining if it was reasonable to expect the claimant to seek state protection. This report presents data on factors such as the rates at which adjudicators consider the adequacy of women’s shelters and the responsiveness of local police to complaints. As well as identifying the frequency and grounds for which judicial reviews are granted, this report also presents a series of recommendations for reform. These recommendations identify where studies are needed, how the Gender Guidelines need reform to make them a helpful instrument, and how training and support for PRD adjudicators needs to be enhanced.

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