Ms. H's harrowing account of the torture she was subjected to by her husband and the lack of protection afforded her was heard by a two member refugee panel in August 1991.  They were asked to determine whether she had a credible basis to her refugee claim, i.e. credible or trustworthy evidence upon which the Refugee Division might determine her to be a Convention refugee.  The panel rejected her claim, because battered wives of police officers in Ms. H's home country did not constitute a 'particular social group'  within the meaning of the Convention refugee definition. 

Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution

That was in 1991.  In March 1993 the Immigration and Refugee Board issued its precedent-setting "Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution". The 1993 Supreme Court of Canada Ward decision identified three categories that could constitute a "particular social group". One of the categories included groups defined by "an innate or unchangeable characteristic", such as gender.  The courts and the government gave official recognition to the fact that women are frequently persecuted because of and in ways which are directly related to their gender.  Had Ms. H's case been heard in 1993, she may have won.

Canada was the first country to produce and implement such guidelines.  In 1995 the United States issued similar guidelines, as did Australia in 1996.  In November 1996 the Immigration and Refugee Board issued statistics and updated guidelines on gender-related persecution.  From March 1993 to September 30, 1996, 1134 gender-related claims had been finalized by the IRB. Of these, 624 of these claims were accepted and 347 rejected. As well, 163 claims had been withdrawn, abandoned, discontinued or otherwise finalized and 238 were currently pending.   

The IRB Guidelines and the Update were supposed to ensure a consistent and fair treatment of all cases dealing with issues heard by the Board.  Members of the Board,  as independent decision-makers, were expected to follow the Guidelines unless there were compelling and exceptional reasons for adopting a different approach, which were to be included in the reasons for decision.

The Guidelines identified four  broad categories into which women refugee claimants might fall:

1.women who fear persecution on the same Convention grounds, and in similar circumstances, as men (racial, national or social identity, religion, political opinion);

2.women who fear persecution solely for reasons pertaining to kinship (status, activities or views of their family);

3.women who fear persecution resulting from certain circumstances of severe discrimination on the grounds of gender or acts of violence either by public authorities or at the hands of private citizens from whose actions the state is unwilling or unable to protect adequately the concerned persons;

4.Women who fear persecution as the consequence of failing to conform to, or for transgressing certain gender-discriminating religious or customary laws and practices in their country of origin. 

These last two categories opened the door for the acceptance of many women refugee claims.  Ms. H 's case would have fallen into the third category.

The Updated Guidelines show the increasing international support for the application of the particular social group ground to the claims of women who fear persecution solely on the basis of their gender.  They specifically state that the fact that a social group consists of large numbers of women in the country concerned is irrelevant.

The Updated Guidelines encourage the IRB decision-makers to consider the special problems women refugee claimants face in demonstrating their claims.  Decision-makers are instructed to consider that the traditional forms of evidence a claimant would normally provide as proof of a State's inability to protect the woman concerned, may not always be available or useful.  They point out that women may be reluctant to discuss such issues as sexual violence in order not to dishonour their families or because of shame.  Some women may not be able to provide detailed information of their husband's or father's activities if they come from cultures where this kind of information is not shared.  They note that some women may be reluctant to testify due to conditions such as 'Rape Trauma Syndrome' or 'Battered Women's Syndrome'. In these cases alternate means of obtaining evidence (affidavit or videotaped) is deemed appropriate.

Application of the Guidelines

There can be no question that the introduction of the Guidelines and the Updated Guidelines has made it easier for some women refugee claimants to be accepted. Women subject to domestic abuse have been found by the Federal Court to constitute a particular social group. Women from Iran have been accepted because of their opposition to the government's enforcement of the dress laws.  A woman from Somalia was accepted because she was a young woman who lacked male protection.  Another woman was determined to be a refugee because she was a divorced mother living under the jurisdiction of Sharia law.  A woman from Ghana was accepted because of her fear of genital circumcision. A young Asian girl facing sexual abuse at the hands of her father was determined to be a Convention refugee.

Despite these encouraging decisions, women refugee claimants continue to face an uphill battle.  Some members of the Immigration and Refugee Board have refused to consider themselves bound by the original Guidelines.  Whereas some members have accepted "women" as a particular social group, others have refused acceptance on the grounds that such a group is too large (despite the Guidelines instructions that the size of the group is an irrelevant consideration). Two Armenian women from Turkey were accepted in 1987 because they were considered to belong to the social group of "single women living in a Moslem country without the protection of a male relative". However, three women from Iran were rejected in 1996 on the grounds that "single women living in Iran without a male protector" could not constitute a social group.  In the latter decision, the members decided the women concerned had "a well-founded fear of being vulnerable", not "a well-founded fear of persecution".  The IRB members in this case never addressed the question of what the women claimants feared they were vulnerable to (that is, persecution). Old attitudes die hard and the Guidelines notwithstanding, IRB members continue to render confused and contradictory decisions on the refugee claims of women fearing gender-related persecution.