The culture of rights protection in Canadian refugee law: examining the domestic violence cases.
This article examines Canadian refugee law cases 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 adjudicators rarely recognized domestic violence as a rights violation in itself but, instead, demonstrated a general predisposition toward finding domestic violence persecution 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 reasons. 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 experience through the script of cultural vulnerability or who cannot present as "victims of culture". The article posits 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 domestic 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 refugies impliquant de la violence familiale, analyses par le biais d'une comparaison avec les cas de sterilisation forcee et de mutilations genitales.'Parcourant 645 decisions publiees, il suggere que les arbitres canadiens ont en general adopte differentes methodes d'analyse dans le cas des refugies de violence familiale, par rapport aux autres affaires. L'article soutient que les arbitres canadiens reconnaissent rarement la violence domestique comme une violation des droits en soi, mais au contraire, ont montre une predisposition generale a reconnaitre des situations violence domestique dans la difference culturelle. Autrement dit, les arbitres ont tendance a reconnaitre les demandeurs subissant de la violence conjugale non pas comme des victimes de pratiques de persecution, mais plutot comme des victimes de cultures persecutrices. L'article suggere que cette approche etablit des criteres errones d'evaluation des allegations de violence conjugale pour deux raisons principales. Tout d'abord, cette approche n'a pas accorde assez d'importance aux facteurs complexes, qui s'additionnent a la question la culture et qui rendent les femmes vulnerables a la persecution dans leur milieu familial. Ensuite, cette approche erige des barrieres juridiques et conceptuelles pour les femmes qui ne peuvent pas authentiquement raconter leur experience a travers le script de vulnerabilite culturelle ou qui ne peuvent pas se presenter comme des >. L'article avance que la caracterisation de la violence subie par les femmes refugiees comme un produit de la culture fait plus que d'eriger des barrieres pour les demandeurs d'asile; il fonctionne egaiement comme un dispositif de protection qui supprime le caractere commun de la violence domestique a travers les cultures et elude sa prevalence locale. L'article conclut en suggerant que cette approche reproduit des hypotheses problematiques de la violence entre les sexes et de la difference des sexes qui rendent difficile la lutte contre la violence domestique a l'etranger et a la maison.
Introduction I. The Legal Framework A. The Refugee Definition All Overview B. Finding a Human Rights Violation C. Finding a Failure of State Protection D. Grounds of Admission II. The Domestic Violence Cases: An Overview A. Methodology B. Finding a Human Rights Violation 1. Forced-Sterilization and Genital-Cutting Cases 2. Domestic Violence Cases C. Finding a Failure of State Protection 1. Forced-Sterilization and Genital-Cutting Cases 2. Domestic Violence Cases D. Grounds of Admission 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 Introduction
The international refugee definition in the United Nations Convention Relating to the Status of Refugees does not enumerate "gender" as a recognized 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 particular 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 directives, for interpreting the definition in a gender-sensitive manner. One of the Guidelines' most profound contributions was the recognition that domestic 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 Canada's 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 anniversary, I examine how Canadian adjudicators have approached refugee cases 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 involving 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 violence as compared with these other gender-based claims. Most notably, in cases involving forced sterilization and genital cutting, in keeping with the Guidelines' directives, adjudicators consistently identified these practices 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 violation in itself and demonstrated a general predisposition to finding persecution 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 cultures.
While this approach has proven successful in securing protection for certain refugee women, it establishes incorrect criteria by which to evaluate 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 problems with the adjudicative tendency to locate domestic violence persecution in cultural difference. First, I argue that by selectively blaming "culture" for refugee women's persecution, the cases do not accord due weight to factors other than culture that make women vulnerable to domestic violence, 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 violence 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 women's 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 sterilization and genital cutting--"exotic" practices perceived to occur only in foreign countries--domestic violence is also common within Canada. Domestic 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 difference can be seen as a protective device that distinguishes the violence suffered by refugee women from the violence suffered by Canadian women. The reluctance to inquire into...
To continue readingRequest your trial
COPYRIGHT GALE, Cengage Learning. All rights reserved.