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 358 • 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 Millett’s 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 • 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… • 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!