Canadian Refugee Procedure/Guideline 4 - Gender Considerations in Proceedings Before the Immigration and Refugee Board

Women and girls constitute 51 percent of refugees and asylum-seekers globally. The adoption of guidelines for protection in cases of gender-related persecution has been described as an improvement in the implementation of the 1951 Refugee Convention by academic commentators. Canada's guidelines are part of an international trend to implement such guidelines or to legislate sex as an additional cause for recognition as a refugee, as as been done in El Salvador, Nicaragua, Panama, Paraguay, Uruguay, and Venezuela.

The Guideline

The text of the relevant Guideline is available on the IRB website.

General commentary

The guidelines may only be applied where gender is at issue in the proceeding or claim

In Agaman v. Canada, the court held that the Chairperson’s Guideline 4 could not be applied in the case because a fear of persecution based on gender was not alleged and there were no facts to support such persecution or other difficulties specific to the female applicant’s gender:

Les demandeurs ont également fait valoir que la SPR n’a pas « bien pris en considération » les Directives numéro 4. À cet égard, ils affirment qu’étant donné qu’ils n’ont plus de statut permanent au Brésil, ils devront retourner en Haïti. Ils soutiennent que la SPR aurait dû examiner si la demanderesse bénéficierait d’une certaine protection en Haïti, celle-ci étant ciblée par les partisans de Lavalas en tant que conjointe du demandeur. Ils reprochent à la SPR de n’avoir posé aucune question à la demanderesse sur le sujet et de n’avoir fait aucune mention des Directives numéro 4 dans ses motifs. La Cour estime cet argument mal fondé. La demanderesse n’a jamais allégué une crainte de persécution fondée sur le sexe et il n’y a pas de faits tendant à démontrer une telle persécution ni de difficultés spécifiques liées à son sexe. Les Directives numéro 4 ne trouvent pas d’application dans toutes les situations où une femme demande la protection. Il faut que le sexe d’une demanderesse joue un rôle dans sa crainte de persécution. La crainte de persécution en l’espèce est exclusivement basée sur son association avec le père du demandeur et à son passé politique. Il n’a pas été question de persécution ou discrimination fondée sur le sexe. Par ailleurs, la Cour n’a relevé aucune insensibilité à l’égard de la demanderesse.

Not mentioning the guidelines will not be fatal to a decision where the record demonstrates compliance with them

The Guidelines are intended to ensure that gender-based claims are heard with compassion and sensitivity. Even where the RPD has not mentioned the Gender Guidelines in its reasons, the RPD will not have erred where it has respected the intent and spirit of them in the case at hand. One RAD panel reaching this conclusion commented: "I note that the Appellant does not point to any evidence that the RPD was insensitive or inappropriate in its questions, or that it conducted the hearing in a way that was insensitive to the Appellant’s emotional state or her well-being." As such, the RAD held in that case that despite not mentioning the guidelines in the original decision, this was not a basis on which to overturn the decision in and of itself. The failure to specifically mention the Gender Guidelines does not mean that they were not considered. On appeal to the RAD, a claimant should point to a specific issue regarding the RPD’s application of the Gender Guidelines and explain how the alleged failure to consider the Gender Guidelines led to an erroneous finding. In contrast, however, where a panel has not meaningfully applied the Gender Guidelines, the decision should not generally be considered a reasonable one and the courts have frequently returned matters to the Board for redetermination.

The Board can consider the Gender Guidelines where a claim involves the "secondary victims" of gendered persecution, such as parents

The Refugee Appeal Division has concluded that "Although the Chairperson’s Guideline 4 addresses the primary victim of rape, I find that the secondary victims, in this case the parents, must benefit from a certain sensitivity and appropriate understanding on behalf of the decision-maker when he questions them about this". That was a case in which the primary victim of the gendered persecution was not a party to the refugee claim, but the RAD nonetheless, on the basis of, inter alia, insensitive questions that had been posed to these parents, remitted the matter to the RPD for reconsideration and ordered that "The RPD must take into consideration the Chairperson’s Guideline 4 in the adjudication of this case."

The Division is required to consider the guidelines where there are inconsistencies in testimony and the applicant has suffered abuse

If a woman has suffered abuse and has inconsistencies between her testimony and her BOC narrative, the RPD is obliged to weigh the evidence with the Gender Guidelines in mind. It is a best practice for the Division to show that it has considered the guidelines while it is making credibility findings, and not to simply consider them in a separate section at the end of its reasons. In Okpanachi v. Canada, the Federal Court found that the Board had erred when it did not do so:

Here, the RAD did not even refer to the Gender Guidelines in its credibility analysis, let alone assess why the omissions cannot be explained by the factors set out in the Gender Guidelines, before accepting the RPD’s conclusion on credibility based on the omissions. As such, I find the RAD has not taken into account the Gender Guidelines “in a meaningful way” when it adopted the RPD’s credibility finding based on the omissions in the BOC.

A medical diagnosis is not required for gender-related factors to be relevant in explaining a claimant difficulties in giving evidence

Footnote 31 of the guidelines states that "In R v. Lavallee, the Court indicated that expert evidence can assist in dispelling these myths and be used to explain why a woman would remain in a battering relationship." That said, nowhere do the Gender Guidelines state a medical diagnosis is required for gender-related factors to be relevant in explaining a claimant’s difficulties in giving evidence. If a panel refuses to take into account the guidelines and gender in assessing a claimant's evidence on the basis that they have not provided a professional diagnosis, they will have acted on the basis of an irrelevant consideration.

Section 6: Intersectional approach

Section 6 of the Guideline describes intersectionality and states that Members should apply an intersectional approach in all proceedings to which this Guideline applies, based on the evidence of the proceeding. That said, the Federal Court has indicated that the RAD cannot be criticized for not assessing whether an RPD analysis was insufficiently intersectional where the RPD conclusion was not challenged before the RAD.

Section 7: Credibility, implausibility and demeanour

Section 7.13 of the Guideline notes that women from certain cultures where men do not share the details of their political, military or even social activities with their spouses, daughters or mothers, may find themselves in a difficult situation when questioned about the experiences of their male relatives. The Federal Court has upheld a RAD finding that this portion of the guideline was not relevant where an applicant never claimed she was unable to specify her son’s political activities and instead testified that her son had never been politically active.