Chairperson’s Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board

Effective date: July 18, 2022
Amended: October 31, 2023

Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act

- UPDATE -

1. Purpose
2. Application
3. Background
Part 1 - Principles applicable to all proceedings
4. Avoiding myths, stereotypes and incorrect assumptions
5. Trauma-informed adjudication

5.1 Definition of trauma
5.2 Principles of trauma-informed adjudication
5.3 Procedural accommodations
5.4 Facilitating participation in a proceeding

6. Intersectional approach
7. Credibility, implausibility and demeanour
8. Evidentiary matters

8.2 Corroboration
8.3 Foreign documents
8.4 Immigration officers' notes
8.5 Expert reports

9. Joining or separating proceedings
10. Protection of confidential information
Part 2 - Guidance specific to each division
11. Proceedings before the Refugee Protection Division and Refugee Appeal Division

11.2 Determining the grounds of persecution
11.3 Assessing persecution
11.4 Country condition information
11.5 State protection
11.6 Internal flight alternative
11.7 Exclusion issues
11.8 Other issues

12. Proceedings before the Immigration Division

12.1 Detention reviews
12.2 Admissibility hearings

13. Proceedings before the Immigration Appeal Division

13.1 Sponsorship appeals
13.2 Humanitarian and Compassionate considerations
13.3 Appeals related to admissibility decisions
13.4 Best Interests of the Child (BIOC)

14. Inquiries
Annex
Footnotes

1. Purpose

1.1 The objective of this Guideline is to foster consistency and fairness in the conduct of Immigration and Refugee Board of Canada (IRB or the Board) proceedings and in decision-making involving gender considerations by:

promoting a greater understanding of gender considerations in proceedings before the IRB, including the forms and impact of gender inequality, discrimination, and gender-based violence;
emphasizing the importance of avoiding myths, stereotypes, and incorrect assumptions in decision-making, particularly when making credibility findings;
reaffirming the IRB’s commitment to, and the importance of, using an intersectional approach and principles of trauma-informed adjudication in proceedings involving gender considerations; and
facilitating the participation of persons appearing before the IRB through sensitive adjudication with particular emphasis on the avoidance of re-traumatization.

1.2 This Guideline assists members in carrying out their duties to conduct fair hearings and render well-reasoned decisions. It does not alter the legal requirements set out in legislation and case law.^{Note 1} For example, the standard of proof that applies to any particular proceeding and the legal tests, such as the criteria to be accepted as a Convention refugee, remain the same. In cases involving gender considerations, members are expected to apply the principles set out in this Guideline when presiding over hearings, assessing evidence, applying legal tests to the facts and rendering decisions.

2. Application

2.1 This Guideline replaces Guideline 4 – Women Refugee Claimants Fearing Gender- Related Persecution (Update, November 13, 1996).

2.2 The focus of the 1996 Guideline was on women refugee claimants. This Guideline broadens the focus to include all genders and gender identities, while recognizing that women and girls and SOGIESC (sexual orientation, gender identity and expression and sex characteristics) individuals are disproportionately impacted by gender-based violence, gender inequality and discrimination, all of which are human rights issues.

2.3 This Guideline applies to all matters involving gender considerations in all four Divisions of the Board, namely, the Refugee Protection Division (RPD), the Refugee Appeal Division (RAD), the Immigration Division (ID), and the Immigration Appeal Division (IAD).

2.4 This Guideline is to be applied by members and other IRB personnel who are involved in the processing or adjudication of IRB cases involving gender considerations.

2.5 Definitions of terms used in this Guideline are provided either in the main text where the term is introduced or in the Annex to this Guideline.

3. Background

3.1 The first Chairperson’s Guideline, Women Refugee Claimants Fearing Gender- Related Persecution, was issued in March 1993. It became a model for other countries in developing their own guidelines on women refugee claimants fearing gender-related persecution.

3.2 The 1993 Guideline was updated in November 1996, following the landmark decision of the Supreme Court of Canada in Ward.^{Note 2} Among other things, the Ward decision confirmed that “gender” was a valid basis for claiming refugee protection on the ground of “membership in a particular social group”. The update also reflected the volume of jurisprudence that emerged in the field of gender-related refugee claims since the original Guideline was issued.

3.3 This Guideline updates the 1996 Guideline based on developments in the case law, legislative changes with the coming into force of the Immigration and Refugee Protection Act (IRPA), and updated research regarding gender issues and the impact of trauma.

Part 1 - Principles applicable to all proceedings

4. Avoiding myths, stereotypes, and incorrect assumptions

4.1 Gender-based violence refers to violence based on gender norms and unequal power dynamics, perpetrated against someone based on their gender, gender expression, gender identity, or perceived gender. It takes many forms, including physical, economic, sexual, as well as emotional (psychological) abuse.^{Note 3}

4.2 Direct and indirect reliance on myths, stereotypes, and incorrect assumptions relating to gender-based violence and trauma can adversely impact the adjudication process.

4.3 Members should avoid the application of such myths, stereotypes, and incorrect assumptions when questioning witnesses and when making findings of mixed fact and law, with particular attention to credibility findings. All participants in IRB proceedings should avoid the application of such myths, stereotypes, and incorrect assumptions when questioning witnesses and making submissions.

4.4 Examples of myths, stereotypes, and incorrect assumptions relating to survivors of gender-based violence and trauma discussed in the caselaw include:

Survivors of sexual assault can be expected to behave in a particular manner, such as resisting the perpetrator, and pursuing a criminal complaint.^{Note 4}
“Genuine” victims of sexual assault report the incident at the earliest opportunity and a person’s credibility is negatively affected by their delay in disclosure, whether in Canada or in the country of origin.^{Note 5}
A person in an abusive relationship will seek to leave at the first opportunity, will not return to the abuser, and will not associate with the perpetrator after a traumatic event.^{Note 6}
Once in Canada, a person who has experienced gender-based violence will automatically seek out counselling or assistance in overcoming trauma.^{Note 7}
“Genuine” sexual assaults are perpetrated by strangers.^{Note 8}
False allegations of sexual assault occur more commonly than false allegations of other offenses.^{Note 9}
Survivors would discuss abuse with family members or acquaintances, and trusted individuals, such as parents or teachers, would notice the signs of abuse.^{Note 10}
Well-educated women, women with well-paying jobs or professional designations, or women who show a capacity for self-sufficiency or the capacity to independently care for children, are less likely to experience gender-based violence.^{Note 11}
Evidence of a person’s prior sexual experiences, including experiences of sexual exploitation such as forced prostitution, or engaging in consensual adult sex work, can be used to draw a negative inference in respect of their credibility.^{Note 12}
Sexual assault would result in pregnancy, or a woman would seek an abortion if impregnated due to an assault.^{Note 13}
A person who has experienced gender-based violence would not use their social media to post photos, with or without their abuser, in which they appear happy and free from harm.^{Note 14}
A person who is a victim of gender-based violence will necessarily know before they arrive in Canada that they possess basic human rights, that what is happening is an infringement of those rights, and that there may be avenues of recourse available to them.

5. Trauma-informed adjudication

5.1 Definition of trauma

5.1.1 Trauma is both the experience of, and response to, an overwhelmingly negative event or series of events, including violence.^{Note 15} Trauma is experienced by an individual as physically or emotionally harmful or life threatening and that has lasting adverse effects on the individual’s functioning and well-being.^{Note 16}

5.1.2 Trauma may completely overwhelm an individual’s ability to cope with, or integrate the ideas and emotions involved in that experience. A traumatic event can elicit intense feelings of fear, terror, helplessness, hopelessness, and despair often subjectively experienced as a threat to the person’s survival.^{Note 17}

5.2 Principles of trauma-informed adjudication

5.2.1 Where the impact of trauma creates barriers to access to justice, the IRB is committed to removing these barriers.

5.2.2 Members and adjudicative staff should apply trauma-informed adjudication principles to cases, involving gender considerations,^{Note 18}where trauma impacts a person’s ability to fully participate in the proceedings. This includes situations where trauma:

is disclosed,
clearly arises from the record, or
becomes apparent during the course of the proceeding.^{Note 19}

5.2.3 The following principles should be applied by all those engaged in the adjudication process:

lead the proceeding with sensitivity to help prevent re-traumatization through the IRB decision-making process;
anticipate the possibility that trauma may impact a person's memory and ability to provide testimony^{Note 20}; and
create a safe adjudicative environment for all participants to facilitate the giving of testimony.

5.2.4 trauma-informed adjudication is a form of a trauma-informed approach that is specifically tailored to adjudicative processes. The principles of trauma-informed adjudication should not be interpreted or applied in a way that infringes on the independence of members or the Board. These principles also cannot infringe on the procedural fairness the IRB equally owes to all parties to a proceeding.^{Note 21}

5.3 Procedural accommodations

5.3.1 Some individuals who have experienced gender-based violence may require procedural accommodations under Chairperson’s Guideline 8: Accessibility to IRB Proceedings – Procedural Accommodations and Substantive Considerations.

5.4 Facilitating participation in a proceeding

5.4.1 Members should not assume that individuals appearing before the IRB will use the descriptions contained in this Guideline to describe their trauma. Culture and worldview can impact how individuals interpret personal topics such as their health and experience of trauma, which can affect how they describe their experiences.^{Note 22}

5.4.2 Members should use the same terminology used by the person appearing before them to respect the person's choice to describe their own experience. Persons appearing before the Board may describe their experiences of gender-based violence in different ways. For example, a person may refer to themselves as a “victim” or a “survivor”, while others may not use either of these terms.

5.4.3 Members should respond to the individual’s verbal cues and body language in a way that creates a safe space to facilitate the giving of testimony. This can be achieved through rapport-building, explaining the context of questioning, and timing breaks responsively. A calm and sensitive approach can enhance the flow of communication, build trust, and assist in the recollection of details.^{Note 23}

5.4.4 Members should conduct the hearing and their questioning in a trauma-informed manner.^{Note 24}Members should, to the extent possible, prevent individuals from becoming traumatized or re-traumatized by the hearing process. For example, members should avoid any line of questioning at a hearing, or reasoning in a decision, that suggests that a survivor is responsible for the trauma that they suffered.^{Note 25}

5.4.5 In some cases, it may not be necessary for the individual to testify about past trauma when sufficiently credible documentary evidence has been submitted in support of the allegations.^{Note 26}Alternatively, where there are serious credibility concerns, it may be necessary for the member to question the individual about difficult matters that could relate to trauma. It is appropriate for members to do this, but they must be conscious of the trauma-informed adjudication principles that are set out in this Guideline.

5.4.6 Members should avoid asking the person to speculate about matters of which they have no knowledge. For example, a person may not be aware of the motives or methods of the agent of harm.^{Note 27}

6. Intersectional approach

6.1 Intersectionality is a framework for understanding how multiple identity factors including, but not limited to gender, disability, race, religion, indigenous identity, age, or sexual orientation may interact to create distinct and compounded forms of discrimination, mistreatment or marginalization. Applying intersectional frameworks has become an important analytical tool in a wide variety of policy and adjudicative contexts and is already in use at the Board.^{Note 28}

6.2 An intersectional approach takes into account the historical, social and political context and recognizes the unique experience of the individual based on the intersection of all relevant factors.

6.3 Members should apply an intersectional approach in all proceedings to which this Guideline applies, based on the evidence of the proceeding.^{Note 29} Therefore, members should consider how an individual may face distinct forms of harm, risk, or vulnerability based on their identity factors and lived experience.^{Note 30} For example, an intersectional approach would consider how a lesbian woman belonging to an ethnic or racial minority within her country may suffer compounded discrimination based on the interaction of her gender, sexual orientation and ethnicity or race.

6.4 There is no single type of marginalization or discrimination for all those who share a common identity factor, although patterns may emerge from the experiences of similarly situated individuals.^{Note 31}

7. Credibility, implausibility and demeanour

7.1 Members should consider the impact of the cycle of violence and coercive control when evaluating credibility in cases involving gender considerations.

7.2 Credibility determinations must be made on a case-by-case basis.^{Note 32} Following are some points relevant to cases involving gender considerations.^{Note 33}

7.3 An allegation of trauma does not prevent the member from making an adverse credibility finding. Members may draw a negative inference from material inconsistencies, omissions, or implausibility in the evidence that have no reasonable explanations.^{Note 34} However, the principles from this Guideline should be considered when assessing the individual’s credibility and not separately after the credibility assessment.^{Note 35}

7.4 Where a credibility concern arises from a person’s evidence or testimony, members should:

explain the concern to the person;
provide an opportunity for the person to respond to the concern;
consider the person’s response and whether trauma or its aftereffects may reasonably explain the perceived discrepancy;^{Note 36}
evaluate the totality of the circumstances and the internal consistency of the evidence; and
explain in their reasons for decision whether the response reasonably accounts for the discrepancy.

7.5 An individual who has experienced trauma may have certain difficulties in presenting their case, including recalling specific times, dates, and locations, recounting events in chronological order, and recalling certain events fully. IRB members often must make credibility findings, including in cases where the individual may have experienced trauma. Trauma may impact memory, which can produce inconsistencies, omissions, and vagueness in the individual’s testimony.^{Note 37}

7.6 Memories of traumatic events are processed differently neurologically from memories of non-threatening events, and the quality of traumatic memory varies from one person to another. Trauma can impact the memory by impairing the coding and storage of aspects of the experiences that are not considered essential for survival or are of little emotional importance. In some cases, traumatic memories lack the coherence and detail that other memories may have.^{Note 38}

7.7 The assessment of whether an explanation is reasonable is contextual and should include the potential impact of trauma on memory.^{Note 39}

7.8 Implausibility findings should only be made in the clearest of cases.^{Note 40} A reasonable finding of implausibility should consider the cultural, economic, and political context of the individual and the country in question.^{Note 41} Members should not rely on gender-based myths, stereotypes, and incorrect assumptions, whether to the advantage or detriment of the individual, as discussed in section 4 of this Guideline.^{Note 42}

7.9 Trauma can impact a person’s demeanour, including their verbal and non-verbal communication because emotional reactions to recounting experiences of trauma are unique to the individual.^{Note 43}

7.10 Members may consider demeanour when assessing the credibility of testimony, however, this should be approached with great caution. For example, the demeanour of persons from different cultural backgrounds or those who have suffered harm may be particularly difficult to assess.^{Note 44} Gender and cultural norms can also play an important role in influencing demeanour.^{Note 45} Therefore, clear and cogent reasons must be given for findings of credibility based on demeanour.^{Note 46} It is only in an exceptional case that demeanour alone would be sufficient to undermine the credibility of the testimony provided in support of the claim.

7.11 Members should not expect a person appearing before the IRB to behave in a certain way when recounting traumatic experiences, and credibility findings should not be based on the absence or presence of such behaviours.^{Note 47}

7.12 Individuals are often reluctant to disclose their experiences of sexual violence because of feelings of shame, helplessness, shock and/or fear that by doing so they may be seen to have dishonoured their families and may be ostracized by their communities.^{Note 48}

7.13 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.^{Note 49}

8. Evidentiary matters

8.1 Members may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances.^{Note 50} Following are some points relevant to cases involving gender considerations.^{Note 51}

8.2 Corroboration

8.2.1 Members should be alert to the difficulties faced by survivors of gender-based violence when considering whether corroborative evidence could be reasonably expected to be available.^{Note 52} In cases of gender-based violence, individuals may face difficulty obtaining corroborative evidence in the form of personal disclosure for several reasons including shame, stigma, secrecy, and the cycle of power and control that can often contribute to such violence.^{Note 53} In some cases, due to the deeply personal nature of the abuse, and the potential trauma associated with it, the only evidence available may be the individual’s own testimony.

8.3 Foreign documents

8.3.1 Foreign documents should be considered based on their contents, and the level of detail that can be expected is highly contextual. For example, brevity in a police report regarding an accusation of sexual violence should not automatically be assumed to indicate lack of credibility. Instead, the brevity may indicate lack of police interest in the complaint.^{Note 54}

8.4 Immigration officers' notes

8.4.1 The context in which an immigration officer’s notes were prepared should be assessed before assigning weight to the notes, when credibility issues arise in respect of gender-based violence allegations.^{Note 55}

8.4.2 Members should consider the individual’s explanation of an omission in interview notes before drawing a negative inference. While the omission of central elements of the narrative from the officer’s notes can undermine a person’s credibility, it is an error to automatically draw a negative credibility inference solely because the evidence lacks details.^{Note 56} An individual may not disclose gender-based violence to immigration officers for various reasons, including shame, stigma, fear of individuals in authority, and fear that they will be disbelieved.^{Note 57}

8.5 Expert reports

8.5.1 Expert evidence includes reports by medical professionals including psychologists, and other experts, such as social workers, who provide evidence within their area of expertise. In order to determine the weight that should be assigned to an expert report, the member should assess the specific contents of the report and the member’s reasons for the decision should explain this assessment.^{Note 58}

8.5.2 Members should consider whether an expert report that has been admitted into evidence explains any inconsistencies, omissions, or other credibility issues in respect of the person’s testimony.^{Note 59} For example, a medical report outlining a condition such as Post-Traumatic Stress Disorder (PTSD) may explain why a person was unable to provide chronological or coherent testimony regarding a traumatic event.^{Note 60}

8.5.3 Members may disregard portions of a report that engage in advocacy or offer opinions outside the expertise of the expert.^{Note 61}

8.5.4 The recounting of events to an expert does not, by itself, affirm the credibility of the events.^{Note 62}

8.5.5 A medical report may assist in corroborating allegations of trauma, but the absence of a medical report may not be indicative that trauma did not occur.^{Note 63} Many individuals face financial, geographical, psychological, social, or cultural barriers to seeking treatment and obtaining an expert report.

9. Joining or separating proceedings

9.1 In some instances, individuals who have experienced gender-based violence may be reluctant to provide testimony of their experience in the presence of a co-party. The reluctance may be due to potential fear of stigma, physical harm, ostracization by family members, or a desire to protect the co-party from hearing about past traumatic events.

9.2 When a party to a joint proceeding wishes to testify in the absence of a co-party, the party should make a request to the Board in advance of the hearing. The request should be decided on a case-by-case basis.

9.3 In situations where an application to separate a claim or appeal is based on gender-based violence between the co-parties, members should consider using their discretion to excuse the party seeking to separate the claim or appeal from the requirement to provide a copy of that application to the co-party.^{Note 64}

9.4 Allegations of gender-based violence between co-parties may require that the proceedings be separated. Generally, cases in which the parties demonstrate adverse interests require that the proceedings be separated. For example, generally the refugee claims of a family should be separated if the parents disagree whether a child should undergo female genital mutilation/cutting (FGM/C).

10. Protection of confidential information

10.1 While proceedings before the RPD and the RAD are private, proceedings at the ID and the IAD are generally public,^{Note 65} and sensitive information, including gender considerations in an individual's case, could be accessed by the public. Additionally, even though proceedings before the RPD and the RAD are private, if a case is before the Federal Court for judicial review, the information in the Federal Court file pertaining to the case becomes publicly accessible.

10.2 As a result, additional safeguards for the protection of sensitive information may be considered, upon request by the parties or on the initiative of a member, to limit public dissemination of this information. Members may, pursuant to section 166 of the IRPA, order that particularly sensitive information be treated as confidential where the factors under section 166 have been met. In such cases, a member may make a confidentiality order to further protect the information in question.^{Note 66}

10.3 Additionally, in drafting reasons for decision, members should, wherever possible, avoid the use of personal or sensitive information that is not necessary to explain the reasoning in the decision.^{Note 67}

Part 2 - Guidance specific to each Division

11. Proceedings before the Refugee Protection Division and Refugee Appeal Division

11.1 Following are some points relevant to refugee cases involving gender considerations.^{Note 68} In this section, “claimant” refers to the subject of the proceedings before the RPD or the RAD.

11.2 Determining the grounds of persecution

11.2.1 The Convention refugee ground of “membership in a particular social group” set out in section 96 of the IRPA^{Note 69} and the Refugee Convention^{Note 70} includes individuals fearing gender-based persecution.^{Note 71}

11.2.2 The fact that a gender-based claim is based on “membership in a particular social group” is not sufficient by itself to confer refugee protection. The claimant or appellant must show that all elements of the Convention refugee definition are met. For example, the evidence must satisfy the Board that there is a risk of harm that is sufficiently serious and whose occurrence is “more than a mere possibility”.^{Note 72}

11.2.3 The fact that the particular social group “gender” comprises many people is irrelevant to the determination of whether there is a connection between the group and the risk of persecution. For example, the prevalence of violence against women is irrelevant when determining whether gender-specific crimes constitute forms of persecution.^{Note 73} Similarly, the fact that there is a general state of violence in a country does not mean that a woman cannot be at risk due to her membership in a gender-based particular social group.

11.2.4 Sexual assault is a crime that is grounded in gender inequality and is therefore a gender-based crime, regardless of its prevalence in society.^{Note 74}

11.2.5 A claimant’s allegations of persecution may be linked to more than one of the five enumerated Refugee Convention grounds, namely race, religion, nationality, membership in a particular social group and political opinion. For example, a claimant may also be perceived to have a political opinion, as well as being a member of a particular social group, because they do not conform to gender norms.

11.2.6 If the evidence suggests a risk of gender-based persecution, the member must assess this risk, even if it is not explicitly alleged.^{Note 75}

11.2.7 An individual may face a risk of persecution as a family member of a person who fears persecution on one of the Refugee Convention grounds. For example, a woman who is not involved in politics may be at risk due to the political views or activities of her aunt or brother.

11.2.8 Members should also consider whether the claimant’s gender may impact other aspects of the claim, such as state protection or internal flight alternative, if the claim is assessed under section 97 of the IRPA (“a person in need of protection”) because there is no nexus between the harm alleged and a Refugee Convention ground.^{Note 76}

11.3 Assessing persecution

11.3.1 An individual’s experience of gender-based violence may not necessarily amount to persecution. The assessment of whether a claimant faces a serious possibility of persecution must be made on a case-by-case basis and should include the seriousness of the harm, whether cumulative acts of discrimination amount to persecution, and whether the harm is repetitive or persistent, depending on the circumstances.^{Note 77} International human rights instruments provide useful reference points in the assessment of whether the alleged harm amounts to persecution.^{Note 78}

11.3.2 Discrimination may amount to persecution if the consequences to the individual are of a substantially prejudicial nature, such as the right to earn a livelihood, rights to private and family life, rights to access public places, freedom of movement, or the right to an education.^{Note 79} The cumulative impact of discriminatory treatment should be assessed with an intersectional approach when determining whether discrimination amounts to persecution.^{Note 80}

11.3.3 Harassment in some circumstances may constitute persecution if it is sufficiently serious and occurs over a period of time such that a claimant’s physical or moral integrity is threatened.^{Note 81}

11.3.4 A claimant does not need to show past persecution to establish the existence of a risk of persecution under section 96 of the IRPA, because the assessment of risk is forward-looking. However, the claimant must demonstrate a link between their personal circumstances and the country conditions to establish the risk.^{Note 82} Evidence of persecution in respect of similarly situated persons may be adduced when the claimant has not personally experienced persecution.^{Note 83}

11.3.5 Laws of general application may also be persecutory either in their intent or in their effect. Laws can be persecutory if they apply to a particular group, such as women who are punished for exhibiting non-conforming behaviours. For example, compulsory veiling laws with punishment for breach, personal status laws, or guardianship systems that target a particular group based on gender, such as women, may be persecutory.^{Note 84}

11.3.6 Not every personal status law, guardianship system and compulsory veiling law is persecutory. They are to be assessed in accordance with Canadian human rights standards or informed by international human rights standards, rather than in accordance with the country of origin’s standards. Members should consider the unique circumstances of the case before them and conduct the assessment on a case-by-case basis. Claimants bear the burden of establishing that a personal status law or guardianship system is persecutory. It is not enough for the claimant to show that a particular regime is generally oppressive but rather that the law in question is persecutory in relation to a Refugee Convention ground.^{Note 85}

11.3.7 In proceedings involving intimate partner violence or family violence, members should apply an intersectional approach to assess forward-looking risk, including the individual’s history of abuse, their immigration status, socio-economic status, community, and cultural norms, and whether any other family members may be at risk.^{Note 86}

11.3.8 Even where credibility concerns arise from certain aspects of a claim, the claim may nonetheless be accepted if the claimant faces a risk due to the claimant’s profile.^{Note 87} For example, a claim may succeed if the claimant faces a risk based on gender-based violence despite the lack of credibility in respect of the allegations based on another ground.

11.4 Country condition information

11.4.1 For some countries, reliable and up-to-date country condition information on gender-based violence and gender inequality and discrimination can be scarce, incomplete, or general in nature. A lack of available information may be more pronounced for certain individuals and groups, such as trans individuals, marginalized minorities, or persons with disabilities. Gender-based violence involving men and boys is generally under-reported and therefore country condition information may be scarce.^{Note 88}

11.4.2 Members should consider the circumstances in the country of reference that may inform the absence of such documentation. Examples may include fear of reporting abuse to authorities due to stigmatization, marginalization or the belief that these are private matters, and low levels of freedom of expression that prevent dissemination of such information.

11.5 State protection

11.5.1 The claimant’s subjective reluctance to seek state protection does not necessarily rebut the presumption of state protection.^{Note 89} Individuals who experience gender-based violence may not seek assistance or state protection, due to past negative experiences with state authorities, internalized and community shame, fear of not being believed, or personal risks associated with seeking assistance.^{Note 90} Lack of freedom of movement and discriminatory laws and policies may also constitute barriers to seeking state protection.

11.5.2 A contextual and intersectional approach should be used to determine whether a claimant’s reluctance to seek state protection was reasonable.^{Note 91} Where relevant, such an approach should consider factors such as:

the profile of the claimant, including their gender, race, age, education level, support network, experience of trauma, mental health issues, and any other relevant factors;^{Note 92}
the profile of the agent of harm, including financial status and political, professional, or criminal connections;
the nature of the relationship between the claimant and the agent of harm;
whether the pursuit of state protection would have risked further endangerment;
any previous efforts to seek state protection, including the response from authorities;^{Note 93}
the inability to seek out state protection due to the criminalization of consensual adult sex work; and
the country conditions, including cultural and societal norms that prevent and stigmatize reporting of gender-based violence.

11.5.3 Members should assess the adequacy of state protection at the operational level rather than the efforts or intention of the state.^{Note 94} While a country’s laws may protect against gender-based violence, socio-cultural norms and other factors may impede the operational effectiveness of such protection.^{Note 95} Individual policing failures do not necessarily demonstrate the inadequacy of state protection; equally, police action in an individual case does not demonstrate the adequacy of state protection.^{Note 96}

11.5.4 Non-governmental organizations, such as domestic violence shelters, are not a substitute for state protection.^{Note 97}

11.6 Internal flight alternative

11.6.1 The burden rests with the claimant to demonstrate that an internal flight alternative (IFA) does not exist. An IFA is viable if the claimant would not face a serious possibility of persecution or be subjected on a balance of probabilities to a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture, and relocation would not be unreasonable upon consideration of all the circumstances.^{Note 98} The threshold for demonstrating that relocation to an IFA is unreasonable is very high.^{Note 99}

11.6.2 A claimant is not obligated to go into hiding to be safe in the IFA. If the agent of harm could locate the claimant through a family member, the claimant is not expected to cease communication with that family member.^{Note 100}

11.6.3 The safety of an IFA is dependent on the claimant’s personal profile. For example, a claimant may face a greater risk as a single woman, divorced woman, widow, or single parent.^{Note 101} Members should also consider the cycle of violence and coercive control when assessing whether an agent of harm may have the motivation and means to locate a claimant.^{Note 102}

11.6.4 Members should take an intersectional approach when considering the reasonableness of the proposed IFA.^{Note 103}

11.6.5 Members should consider whether child custody arrangements affect the viability of an IFA.^{Note 104} Depending on country conditions, survivors of family or intimate partner violence may not be able to withhold their names and addresses in family law proceedings such as divorce proceedings and child custody proceedings. Where an agent of harm shares custody of a child with the claimant or appellant, they may be able to use their rights of parental access to obtain contact information and continue the abuse.

11.7 Exclusion issues

11.7.1 When one parent is claiming refugee protection with children in the absence of the other parent, the obligation of the Division to notify the Minister may arise pursuant to RPD Rule 26 due to a possible exclusion under Article 1F(b) of the Refugee Convention for potential child abduction.^{Note 105}

11.7.2 The RPD will generally seek evidence that the claiming parent has full custody of the minor claimant or permission from the other parent to travel to Canada with them. Members should consider whether the defence of imminent harm under section 285 of the Criminal Code^{Note 106} applies in cases where exclusion is based on serious reasons for considering that the claimant or appellant committed child abduction.^{Note 107}

11.7.3 In certain situations, especially where the other parent is the alleged agent of harm, it may be difficult to obtain the consent of the non-accompanying parent. Therefore, when there is no evidence of full custody for the claiming parent or consent from the non-accompanying parent, members should consider the circumstances of the claim before providing notice to the Minister under RPD Rule 26, including:

the context of the allegations and whether it is reasonable to expect the adult claimant to obtain permission from the non-accompanying parent;
any identity issues with respect to either the adult or minor claimants and whether there is evidence of a parent-child relationship between the adult and the minor claimant(s);
whether the legal system in the country of origin allows the adult claimant to exercise parental authority over the child;
whether proceedings have been commenced under the Hague Convention^{Note 108} by the non-accompanying parent; and
any other evidence in the file or that arises during the hearing that raises suspicions that the minor claimants may have been unlawfully removed from their country of nationality.

11.7.4 Where the Minister has been notified of a potential exclusion under Article 1F(b) of the Refugee Convention related to child abduction, the accompanying parent is no longer an appropriate designated representative, and a new representative should be appointed.

11.7.5 A Canadian court decision regarding the Hague Convention is not binding on RPD proceedings; nevertheless, court findings should be considered by members where they are directly relevant to the facts before them.^{Note 109}

11.7.6 In cases involving Article 1E of the Refugee Convention, members should consider whether gender-based violence influenced the claimant’s ability or willingness to renew or obtain residency status in a third country. For example, a claimant may have neglected to renew permanent residency in a third country because such renewal required the consent of an abusive spouse.^{Note 110}

11.8 Other issues

11.8.1 A claimant must provide acceptable documents establishing their identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they did not provide the documents and what steps they took to obtain them.^{Note 111} The RPD and RAD should apply the principles from this Guideline when assessing credibility and other elements of the claim or appeal. For example, members should be alert to the difficulties survivors of gender-based violence may face in obtaining identity and other documents.

11.8.2 The assessment of whether there are “compelling reasons” within the meaning of subsection 108(4) of the IRPA should include the impact of trauma arising from gender-based violence.^{Note 112}

11.8.3 The assessment of whether new evidence meets the admissibility test under subsection 110(4) of the IRPA and RAD Rule 29(4) should be undertaken using the principles of trauma-informed adjudication that consider the difficulties faced by persons who have experienced gender-based violence.

11.8.4 Gender-based violence can affect the withdrawal and abandonment of claims and appeals, and therefore affect applications for re-instatement and re-opening. For example, an abuser may pressure a claimant into withdrawing their claim or may withhold documents causing a claim to be abandoned.

11.8.5 A sur place claim may arise due to events that occurred once the individual arrived in Canada. Sur place claims can be based on a change of circumstances in the individual’s country of reference or a change in the claimant's activity since leaving their country of reference.

11.8.6 When a stateless claimant or appellant has more than one country of former habitual residence, they must demonstrate a risk against at least one those of countries and the inability to return to the others. It would be an error to require an individual to remain in an abusive relationship in order to maintain or reacquire status in a country of former habitual residence.^{Note 113}

12. Proceedings before the Immigration Division

12.1 Detention reviews

12.1.1 In conjunction with Chairperson’s Guideline 2: Detention,^{Note 114} members should consider that survivors of gender-based violence, pregnant and nursing women, and women with children, may be adversely impacted by detention, especially if they experienced violence at the hands of state authorities or have mental health issues.^{Note 115}

12.1.2 The assessment of the best interests of the child in the context of a detention review should include whether the child will be separated from a primary caregiver, who is often a woman.

12.1.3 Members should consider the possible challenges faced by some individuals in obtaining identity documents when leaving their country of nationality. For example, women escaping intimate partner violence or fleeing from a country with a patriarchal social and legal system may not have access to travel or identity documents.^{Note 116}

12.1.4 When assessing alternatives to detention, members should consider the relationship between the person concerned and the bondsperson and whether either could be at risk if allegations of gender-based violence arise.

12.1.5 Gender considerations may be relevant when ordering the release of an individual, for example, in setting terms and conditions. Members should consider whether release into community support services, such as a domestic violence shelter, is an appropriate alternative to detention and should also consider any challenges or barriers faced in accessing services.

12.2 Admissibility hearings

12.2.1 Gender considerations may inform the assessment of whether a person is inadmissible. For example, allegations of gender-based violence should be considered when assessing whether a misrepresentation was made in obtaining permanent residence after entering into a bad faith relationship, or whether a person willingly joined an organization described in section 34 (security) or section 37 (organized criminality) of the IRPA.

12.2.2 Members should consider the socio-cultural context when assessing the person’s credibility in the context of a misrepresentation in a bad faith relationship. For example, the person may lack knowledge of their partner’s family members, employment, financial, or sexual history because such information is not normally shared between spouses in that culture.

13. Proceedings before the Immigration Appeal Division

13.1 Sponsorship appeals

13.1.1 A person subject to intimate partner violence who is being sponsored by that partner, and whose permanent residence status is uncertain, may experience heightened vulnerability. For example, a person sponsored by a partner may also be financially dependent on their partner.

13.1.2 Members should rely on the evidence and not rely on myths, stereotypes, or incorrect assumptions of what constitutes a genuine spousal or conjugal relationship. For example, members should avoid gendered stereotypes regarding the expected behaviour of an individual from that culture and assumptions regarding marriage rites and rituals.^{Note 117}

13.2 Humanitarian and Compassionate considerations

13.2.1 In exercising their ability to grant discretionary relief on humanitarian and compassionate (H and C) grounds, members should consider whether there are specific gender-related considerations, such as experiences of gender-based violence or gender-based discrimination that could warrant special relief from the requirements of the IRPA and the Immigration and Refugee Protection Regulations.

13.2.2 The assessment of H and C considerations in respect of residency obligation appeals should consider whether gender-based violence or gender norms such as caring for elderly parents or accompanying a partner on travel or employment relocation, affected the appellant’s departure from Canada, ability to return to Canada, or decision to remain abroad.

13.2.3 An individual’s experience of gender-based violence and gender discrimination should be considered when assessing the potential hardship in the country of return or country of residence. Factors that may constitute hardship include evidence of discrimination against women obtaining employment opportunities, a high rate of violence against women, and community or familial stigma of survivors of gender-based violence.^{Note 118}

13.2.4 Members should consider that childcare responsibilities, which disproportionately affect women and single parents, may impact an appellant’s ability to seek work.^{Note 119}

13.3 Appeals related to admissibility decisions

13.3.1 Gender considerations may inform the assessment of whether a misrepresentation was made in respect of the genuineness of a relationship by a person in obtaining permanent residence. For example, the decision of the person to separate from a spouse after a short period of time may not necessarily indicate that a misrepresentation was made if the person was subjected to intimate partner violence.

13.3.2 In removal order appeals based on serious criminality where members are assessing the Ribic factors in their H and C analysis, negative weight can be ascribed to evidence which establishes that an appellant perpetrated genderbased violence or family violence in committing the index offence. When assessing the possibility of rehabilitation, evidence that an appellant lacks remorse for having perpetrated gender-based violence can also be taken into consideration.^{Note 120}

13.4 Best Interests of the Child (BIOC)

13.4.1 A BIOC analysis should include the broader social, cultural, economic and political context, and it must be applied in a manner which considers the unique circumstances of the individual child in question.^{Note 121}

13.4.2 The following non-exhaustive list of factors may guide members in considering the impact of gender-based violence against a family member or person of trust on a child: the nature, seriousness, and frequency of the family violence and when it occurred; the physical, emotional, and psychological harm or risk of harm to the child or other family members; and whether the child has experienced or been a witness to gender-based violence or gender-based discrimination.^{Note 122}

14. Inquiries

For more information, please contact: IRB.Policy-Politiques.CISR@irb-cisr.gc.ca

OR

Senior Director, Policy, Engagement and Parliamentary Affairs Directorate
Strategic Directions and Corporate Affairs Branch
Minto Place - Canada Building
344 Slater Street, 12th Floor
Ottawa, Ontario K1A 0K1

Approval

Richard Wex
Chairperson
Date: October 31, 2023

Annex

The following definitions apply to terms used in this Guideline:

Coercive control: coercive control is a pattern of abuse that occurs when an intimate partner, former partner, or abuser attempts by emotional, psychological, physical, financial, or sexual means to coerce, dominate, monitor, intimidate or otherwise control the other person.^{Note 123}
Cycle of violence: cycle of violence refers to the periods of calm, tensionbuilding, abuse, and reconciliation that can repeat themselves in an abusive relationship over many years.
Gender: Gender refers to the characteristics, attitudes and behaviours that are socially or culturally associated with a person's sex as perceived or assigned at birth. The categories and specific characteristics associated with gender may vary culturally. An individual's gender includes gender identity and expression, both of which can be fluid and flexible. An individual's gender identity and expression may or may not conform to the socially accepted gender norms of their culture and/or country of origin.^{Note 124}
Gender-based discrimination: gender-based discrimination includes any distinction, exclusion, or restriction due to gender, based in law or in practice, that has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise of human rights and fundamental freedoms.^{Note 125}
Gender identity: gender identity is defined as each person's internal experience and understanding of their gender. It is their sense of being a woman, a man, both, neither, or being anywhere along the gender spectrum. A person's gender identity may be the same as, or different from, their sex assigned at birth. A person's understanding of their gender may change, and therefore the terms they might use to define their identity may also change and/or be fluid.^{Note 126}
Gender inequality: gender inequality refers to the unequal distribution of rights, responsibilities and opportunities based on gender. Gender inequality may be interpersonal, systemic, or structural in nature.
Gender norms: expectations and stereotypes about behaviours, actions and roles that are linked to being a ‘man’ or ‘woman’ in a particular society. Gender norms contribute to power imbalances and gender inequality at home, at work and in communities.^{Note 127} s
Family violence: any form of abuse or neglect that a child or adult experiences from a family member, or from someone with whom they have an intimate relationship, whether current or former.^{Note 128}
Intimate partner violence (also referred to as domestic violence or spousal violence): physical, sexual, emotional (psychological) or financial harm done by a current or former intimate partner(s) or spouse(s). Intimate partner violence can happen in a marriage, common-law or dating relationship; in a heterosexual or LGBTQ2 (lesbian, gay, bisexual, transgender, queer, and Two-Spirit) relationship; at any time in a relationship, including after it has ended; and, whether or not partners live together or are sexually intimate with one another.^{Note 129}

Footnotes

See Borisovna Abbasova v. Canada (Citizenship and Immigration), 2011 FC 43 at para. 57, citing Newton v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 15385 (FC) at para. 17.

Return to note 1 referrer

Canada (Attorney General) v. Ward, [1993] 2 SCR 689.

Return to note 2 referrer

See “Gender-based violence” in the Gender-based violence glossary, Women and Gender Equality Canada

Return to note 3 referrer

There is no specific rule on how victims of sexual assault ought to behave. See, for example, R v. ADG, 2015 ABCA 149 at para. 33, citing R v. Shearing, 2002 SCC 58 at para. 121, and R v. DD, 2000 SCC 43 at para. 63;; R v. ARD, 2017 ABCA 237 at para. 64, affirmed in R v. ARJD, 2018 SCC 6; Del Carmen Aguirre Perez v. Canada (Citizenship and Immigration), 2019 FC 1269 at paras. 16-27; Daniela v. Canada (Citizenship and Immigration), 2014 FC 707 at paras. 22-23, and Ibrahim v. Canada (Citizenship and Immigration), 2021 FC 1414 at paras. 29-30.

Return to note 4 referrer

This is known as the “doctrine of recent complaint”. See Velasco Chavarro (Citizenship and Immigration), 2020 FC 310 and Ibrahim v. Canada (Citizenship and Immigration), 2021 FC 1414 at paras. 31-34. This discredited doctrine was struck from the Criminal Code in 1983 (see Criminal Code, s. 275).

Return to note 5 referrer

R v. Lavallee, [1990] S.C.R. 852. In Jaikaran v Canada (Minister of Citizenship and Immigration), 2005 FC 624, the RPD was found to have erred by drawing a negative inference based on the claimant remaining in an abusive relationship, having testified that she stayed because she loved her partner.

Return to note 6 referrer

See Gyarchie v. Canada (Citizenship and Immigration), 2013 FC 1221 at paras. 50-54, where the Court held that evidence regarding how victims of domestic violence feel shame and the impact of shame acting as a barrier to trauma survivors seeking help should have been considered in the analysis of delay and credibility.

Return to note 7 referrer

R. v. Seaboyer; R. v. Gayme, [1991] 2 SCR 577 at para. 153 (per L’Heureux-Dubé J, dissenting in part); R. v. Goldfinch, 2019 SCC 38 at para. 2. See also Handbook on effective prosecution responses to violence against women and girls, United Nations Office on Drugs and Crime (UNODC), New York, 2014, at p. 31 https://www.unodc.org/documents/justice-and-prisonreform/ Handbook_on_effective_prosecution_responses_to_violence_against_women_and_girls.pdf.

Return to note 8 referrer

R. v. A.G., 2000 SCC 17, [2000] 1 SCR 439 at para. 3.

Return to note 9 referrer

In Fontenelle v. Canada (Citizenship and Immigration), 2011 FC 1155, the RPD erred by assuming that the claimant would disclose the abuse to her teachers and that the teachers would notice the physical marks of the abuse (paras. 57-61). In Del Carmen Aguirre Perez, supra note 4, the Court found it unreasonable for the RPD to assume that in a family where one sibling inflicted abuse upon another, the parents would have intervened (paras. 18-25). Further, it was unreasonable to assume that sisters would discuss abuse within their home (paras. 20-22).

Return to note 10 referrer

For example, see X (Re), 2020 CanLII 122645 (RAD) at paras. 27-36.

Return to note 11 referrer

Seaboyer; supra note 8; Gayme, supra note 8.

Return to note 12 referrer

See for example, Hammed v. Canada (Citizenship and Immigration), 2007 FC 197 at para 11.

Return to note 13 referrer

X (Re), 2021 CanLII 140045 (RAD) at paras. 25-27

Return to note 14 referrer

Public Health Agency of Canada. Trauma and violence-informed approaches to policy and practice updated February 2, 2020. Online: https://www.canada.ca/en/public-health/services/publications/health-risks-safety/trauma-violence-informed-approaches-policy-practice.html. This Guideline does not incorporate all principles in the PHAC document as it is written in the public health context and not all the principles are applicable to the adjudicative context at the IRB.

Return to note 15 referrer

Center for Substance Abuse Treatment (US). Trauma-Informed Care in Behavioral Health Services, Rockville (MD): Substance Abuse and Mental Health Services Administration (US); 2014. (Treatment Improvement Protocol (TIP) Series, No. 57.) https://www.ncbi.nlm.nih.gov/books/NBK207201/.

Return to note 16 referrer

Randall, Melanie and Haskell, Lori, “Trauma-Informed Approaches to Law: Why Restorative Justice Must Understand Trauma and Psychological Coping”, Dalhousie Law Journal, Fall (2013), p. 507 Trauma-Informed Approaches to Law: Why Restorative Justice Must Understand Trauma and Psychological Coping (dal.ca) referring to the work of Kammerer, Nina and Mazelis, Ruta “After the Crisis Initiative: Healing from Trauma after Disasters” (Paper presented at the “After the Crisis: Healing from Trauma after Disasters”, Expert Panel Meeting, Bethesda, MD, April 24-25, 2006) (PDF) After the Crisis Initiative: Healing from Trauma after Disasters | Nina (Cornelia) Kammerer - Academia.edu

Return to note 17 referrer

UNHCR Policy on the Prevention of, Risk Mitigation, and Responses to Gender-Based Violence, UNHCR, UNHCR/HCP/2020/01, https://www.unhcr.org/media/unhcr-policy-prevention-risk-mitigation-and-response-gender-based-violence-2020-pdf, October 2, 2020, p.7.

Return to note 18 referrer

Evidence of trauma can include descriptions of experiences, behaviour, or medical reports. See Niyongira v. Canada (Citizenship and Immigration), 2021 FC 911 at paras16-17, where the Court acknowledged the importance of considering the impact of torture on a claimant's ability to participate in the proceeding, including on their capacity to give evidence. See also: Hillary v. Canada (Citizenship and Immigration), 2010 FC 638 at para. 75. For an example of a trauma-informed approach to decision making at the Refugee Appeal Division, see X (Re), 2021 CanLII 68622 (RAD).

Return to note 19 referrer

Jones v. Canada (Minister of Citizenship and Immigration), 2006 FC 405 at para 15.

Return to note 20 referrer

The trauma informed principles set out by the Public Health Agency of Canada, supra note 15, include principles that foster choice and collaboration by giving someone dealing with trauma the choice to accept or reject medical treatment. However, offering the choice of whether or how to participate within adjudicative processes will not be possible where doing so infringes on adjudicative independence or the rights of other individuals in the proceedings. See also Trauma Informed Practice Guide available on the website of the Public Health Agency of Canada, May 2013. Online: https://cewh.ca/wp-content/uploads/2012/05/2013_TIP-Guide.pdf.

Return to note 21 referrer

Ranjbar, Noshene et al. Trauma-Informed Care and Cultural Humility in the Mental Health Care of People from Minoritized Communities. Focus: The Journal of Lifelong Learning in Psychiatry, Vol. 18, No. 1., published online January 24, 2020.

Return to note 22 referrer

See Haskell and Randall, “The Impact of Trauma on Adult Sexual Assault Victims”, Report submitted to the Department of Justice, 2019, https://www.justice.gc.ca/eng/rp-pr/jr/trauma/index.html, p. 23: “This knowledge [of the science of memory and trauma] is of critical importance to sexual assault investigations: if a victim is interviewed in a stressful way – for example, if they are not treated with compassion, if their narrative is interrupted, if they receive only expressions of doubt about what they are reporting – they will not be able to recall potentially crucial information that is stored in the brain”.

Return to note 23 referrer

See also Code of Conduct for Members of the Immigration and Refugee Board of Canada (April 9, 2019): “9. Members shall conduct hearings in a courteous and respectful manner while ensuring that the proceedings are fair, orderly and efficient.” “10. Members shall exercise their duties without discrimination. Members must take reasonable measures to accommodate all participants in a proceeding so that they may participate effectively. Members are expected to take into account social and cultural differences and to respect human rights.”

Return to note 24 referrer

For example, questions regarding the cause of gender-based violence are unnecessary and risk engaging in victim-blaming. In Chavez v. Canada (Citizenship and Immigration), 2015 FC 442 at para. 7, the Court held that the RPD erred by making a credibility finding based on the source of the abuse, which came “too close to blaming the victim instead of the perpetrator for the assaults on the Applicant’s person”.

Return to note 25 referrer

Olah v. Canada (Citizenship and Immigration), 2019 FC 401 at para. 38; X (Re), 2019 CanLII 132811 (RAD) at para. 8.

Return to note 26 referrer

X (Re), 2018 CanLII 147831 (RAD) at para. 17; X (Re), 2019 CanLII 134984 (RAD) at paras.20-21.

Return to note 27 referrer

In the policy context, see for example, Government of Canada, Women and Gender Equality Canada, “Introduction to Intersectionality” https://women-gender-equality.canada.ca/gbaplus-course-cours-acsplus/eng/mod00/mod00_01_01.html. In the legislative and judicial contexts, see section 3.1 of the Canadian Human Rights Act and Turner v. Canada (Attorney General), 2012 FCA 159, at para. 49. The concept of intersectionality was first introduced by Kimberlé Crenshaw, see “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics”. University of Chicago Legal Forum, Volume 1989, Issue 1, Article 8. See also Mabuya v. Canada (Citizenship and Immigration), 2013 FC 372, at para. 10.

Return to note 28 referrer

The Federal Court has emphasized the importance of an intersectional analysis when assessing the claim involving a female Roma victim of intimate partner violence (Djubok v. Canada (Citizenship and Immigration), 2014 FC 497 at paras. 18-19) and a gay male HIV-positive Roma (Gorzsas v. Canada (Citizenship and Immigration), 2009 FC 458 at para. 36). The Federal Court also found that a PRRA officer failed to conduct a cumulative and intersectional risk assessment regarding an applicant who alleged a risk of persecution or harm in El Salvador due to his profile as a returnee with severe mental illness being deported due to serious criminality (Rodriguez Ramos v. Canada (Citizenship and Immigration), 2022 FC 41 at paras. 9-21).

Return to note 29 referrer

X (Re), 2017 CanLII 147775 (RAD) at para. 71; X (Re), 2020 CanLII 93691 (RAD) at paras. 10-23, for a discussion of the intersection of gender-based violence and anti-Black racism.

Return to note 30 referrer

Ajele, Grace and McGill, Jenna, Women’s Legal Education and Action Fund (LEAF), “Intersectionality in Law and Legal Contexts” https://www.leaf.ca/publication/intersectionality-in-law-and-legal-contexts/. See Executive Summary and section 5.3 “Immigration and Refugee Law”.

Return to note 31 referrer

In the context of a claim for refugee protection, sworn testimony and statements are presumed to be true unless there is a valid reason—for example, other negative credibility findings—to doubt their truthfulness, see Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.).

Return to note 32 referrer

The case law on assessment of credibility is set out in more detail in an IRB Legal Services reference paper: Immigration and Refugee Board. Assessment of Credibility in Claims for Refugee Protection, Legal Services, December 31, 2020 https://www.irb-cisr.gc.ca/en/legal-policy/legalconcepts/ Pages/Credib.aspx.

Return to note 33 referrer

For example, Uwejeyah v. Canada (Citizenship and Immigration), 2020 FC 849; Eije v. Canada (Citizenship and Immigration), 2021 FC 500; and Reyes Ramirez v. Canada (Citizenship and Immigration), 2021 FC 472.

Return to note 34 referrer

Okpanachi v. Canada (Citizenship and Immigration), 2022 FC 212 at paras. 23, 26-27, citing Harry v Canada (Citizenship and Immigration), 2019 FC 85 at para 34.

Return to note 35 referrer

Haskell and Randall, supra note 17 at p.523.

Return to note 36 referrer

Jones, supra note 20 at para. 16: “Generally, memory gaps may be a reason to draw an adverse credibility inference, but when the claimant is a victim of severe domestic abuse, the Board must be alive to the possibility that these gaps are psychological in nature.”

Return to note 37 referrer

See “Chapter 12 – Trauma and Self-care, Manual on Human Rights Monitoring”, OHCHR, 2011, OHCHR Chapter 12_Trauma and Self-care.indd, at p. 4 and Haskell and Randall, “The Impact of Trauma on Adult Sexual Assault Victims”, Report submitted to the Department of Justice, 2019, https://www.justice.gc.ca/eng/rp-pr/jr/trauma/index.html, at p. 22. See also Wardi v. Canada (Citizenship and Immigration), 2012 FC 1509 at para. 15-19 and Niyongira v. Canada (Citizenship and Immigration), 2021 FC 911 at 16-17.

Return to note 38 referrer

In Ahmed v. Canada (Citizenship and Immigration), 2012 FC 1494 at para. 14, the Court noted that while the Board is entitled to make adverse credibility assessments, it must consider the social context in gender-based claims. See also Odia v Canada (Citizenship and Immigration), 2014 FC 663 at para. 9; Mirzaee v. Canada (Citizenship and Immigration), 2020 FC 972 at paras 52-53; Mavangou v. Canada (Citizenship and Immigration), 2019 FC 177 at paras. 48-50; and Abdulkadir v. Canada (Citizenship and Immigration), 2018 FC 318 at paras. 73-78.

Return to note 39 referrer

Valtchev v. Canada (Minister of Citizenship and Immigration), 2001 FCT 776, at para. 7; X (Re), 2019 CanLII 76820 (RAD) at paras. 16-17.

Return to note 40 referrer

Ansar v. Canada (Minister of Citizenship and Immigration), 2011 FC 1152 at para. 17; Palmo v. Canada (Citizenship and Immigration), 2016 FC 809 at para. 23.

Return to note 41 referrer

Myths and stereotypes have “long tainted” the assessment of complainants’ credibility in sexual assault cases in the criminal law context. See R. v. Find, 2001 SCC 32 at paras. 101-103, where the Court noted that the “pervasiveness, and the subtlety of their operation, create the risk that victims of abuse will be blamed or unjustly discredited in the minds of both judges and jurors”. See also R v. CMG, 2016 ABQB 368 at para. 60.

Return to note 42 referrer

Immigration, Refugees and Citizenship Canada, Operational Instructions and Guidelines, date modified: 2020-02-03. “Abuse: Interview Considerations”: “While some individuals may show signs of distress, including anxiety, irritability, nervousness, agitation, anger and aggressiveness, others may be easily intimidated and may have difficulty communicating.” https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/service-delivery/abuse/interview-considerations.html.

Return to note 43 referrer

Valtchev, supra note 40 at paras. 24-25. See also Rahal v. Canada (Citizenship and Immigration), 2012 FC 319 at para. 45.

Return to note 44 referrer

In some cultures, keeping the head down and avoiding eye contact are signs of respect. For many women, making eye contact and speaking clearly and directly are considered highly inappropriate conduct and should not be viewed as indicators of lack of credibility. See also “Gender Guidelines in Asylum Claims”, UK Home Office, April 10, 2018 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/69970 3/gender-issues-in-the-asylum-claim-v3.pdf, p. 32.

Return to note 45 referrer

In Abdinur v. Canada (Citizenship and Immigration),2020 FC 880, at paras 47–49, the Minister's delegate does not indicate what “vagueness” she found in Mr. Abdinur's answers. This is also unclear on review of the transcript of the hearing. The Minister's delegate is even less explanatory in identifying what in Mr. Abdinur's “demeanour” during the hearing undermined his credibility. Justice McHaffie wrote at para 49 that, “… in my view it is insufficient to simply refer to a witness's 'demeanour' without any indication as to what aspects of their demeanour undermined their credibility. It does not allow this Court to reach a conclusion as to whether the assessment of demeanour, or the reliance on it, was reasonable. While I appreciate that defining a non-credible 'demeanour' may be difficult (one of the identified problems with relying on it), a mere statement that a finding of credibility is based on 'demeanour,' without more, is of little value.”

Return to note 46 referrer

The preconception that trauma survivors will necessarily be extremely emotional when discussing their experiences is particularly strong in cases of sexual violence, where survivors are often expected to express high levels of distress and shame. See “Chapter 12 – Trauma and Self-care, Manual on Human Rights Monitoring”, OHCHR, 2011, at p. 6 OHCHR Chapter 12_Trauma and Self-care.indd See also Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection under the 1951 Convention and the 1967 Protocol Relating to Status of Refugees, UNHCR, Geneva, Reissued February 2019 https://www.unhcr.org/publications/legal/5ddfcdc47/handbookprocedures- criteria-determining-refugee-status-under-1951-convention.html. The GUIDELINES ON INTERNATIONAL PROTECTION NO. 1: “Gender‑Related Persecution” states at para. 36, point xi: “The type and level of emotion displayed during the recounting of her experiences should not affect a woman’s credibility” UNHCR - Guidelines on International Protection No. 1: Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees (HCR/GIP/02/01)

Return to note 47 referrer

UN High Commissioner for Refugees (UNHCR), UNHCR Handbook for the Protection of Women and Girls, January 2008, at p. 251 https://www.refworld.org/docid/47cfc2962.html.

Return to note 48 referrer

Sy v. Canada (Minister of Citizenship and Immigration), 2005 FC 379 at paras 14-16.

Return to note 49 referrer

See IRPA, ss. 170(h) (RPD); 171(a.3) (RAD); 173(d) (ID) and 175(c) (IAD).

Return to note 50 referrer

The case law on weighing evidence is set out in more detail in an IRB Legal Services reference paper: Weighing evidence - Immigration and Refugee Board of Canada (irb-cisr.gc.ca) December 31, 2020.

Return to note 51 referrer

Luo v. Canada (Citizenship and Immigration), 2019 FC 823 at paras. 18–22; Pazmandi v. Canada (Citizenship and Immigration), 2020 FC 1094 at para. 25-26. See also He v. Canada (Citizenship and Immigration), 2020 FC 825.

Return to note 52 referrer

Del Carmen Aguirre Perez, supra note 4 at para. 23, the Court held that “It is a reasonable response for a person to keep sexual abuse hidden from others”. See also Sukhu v. Canada (Citizenship and Immigration), 2008 FC 427 at para. 20, where the Court noted that it is unreasonable not to consider that shame may explain a claimant’s decision not to obtain a medical report following a sexual assault. See also Ibrahim v. Canada (MCI), 2021 FC 1414 at paras. 30-32.

Return to note 53 referrer

See Raju v. Canada (Citizenship and Immigration), 2013 FC 848.

Return to note 54 referrer

In Wu v. Canada (Citizenship and Immigration), 2010 FC 1102, the Court noted that the Board should be careful not to place undue reliance on officers’ notes as the environment of the interview may result in less-than-ideal testimony. See also Varga v. Canada (Citizenship and Immigration), 2020 FC 102 at para. 84, citing Lumaj v. Canada (Citizenship and Immigration), 2012 FC 763 at paras 65-66, where the Court held that the RPD failed to reasonably assess the claimant’s initial reluctance and failure to disclose her rape at the port of entry.

Return to note 55 referrer

Yontem v. Canada (Citizenship and Immigration), 2005 FC 41; Bozsolik v. Canada (Citizenship and Immigration), 2012 FC 432; Singh, Harbhajan v. Canada (Citizenship and Immigration), 2008 FC 453; Jamil v Canada (Citizenship and Immigration), 2006 FC 792. In Cetinkaya v. Canada (Citizenship and Immigration), 2012 FC 8 at para. 51, the Court held that, “It is an error to impugn the credibility of the claimant solely on the ground that the information provided by the claimant at the port of entry lacks details. The purpose of the POE interview is to assess whether an individual is eligible and/or admissible to initiate a refugee claim. It is not a part of the claim itself and, consequently, it should not be expected to contain all of the details of the claim. See also Hamdar v. Canada (Citizenship and Immigration), 2011 FC 382 at paras. 43-48, and Jamil at para. 25.

Return to note 56 referrer

Wu, supra note 55, the Court noted that the Board should be careful not to place undue reliance on officers’ notes as the environment of the interview may result in less-than-ideal testimony. See also Varga supra note 55, para. 84, citing Lumaj, supra note 55 at paras. 65-66, where the Court held that the RPD failed to reasonably assess the claimant’s initial reluctance and failure to disclose her rape at the port of entry.

Return to note 57 referrer

See Joseph v. Canada (Citizenship and Immigration), 2015 FC 393 at paras. 45-48; Feleke v. Canada (Citizenship and Immigration), 2007 FC 539 at paras. 14-18; Atay v. Canada (Citizenship and Immigration), 2008 FC 201 at paras. 29-32; and Belahmar v. Canada (Citizenship and Immigration), 2015 FC 812 at paras. 8-9. Also see Enam v. Canada (Immigration, Refugees and Citizenship), 2017 FC 1117 at para. 29, X (Re), 2019 CanLII 127902 (RAD), at para. 27, and section 8 of Chairperson’s Guideline 8, Guideline on Vulnerable Persons, https://irb-cisr.gc.ca/fr/legales-politique/politiques/Pages/GuideDir08.aspx#s8, which sets out the information that should generally be included in an expert report, including any suggested procedural accommodations and why they are recommended.

Return to note 58 referrer

Min v. Canada (Minister of Citizenship and Immigration), 2004 FC 1676 at paras. 5-9. See also Sterling v. Canada (Citizenship and Immigration), 2016 FC 329 at paras. 7-12; N’kuly v. Canada (Citizenship and Immigration), 2016 FC 1121 at para. 64.

Return to note 59 referrer

Joseph, supra note 58 at para. 47, the Court held that in the case of a person suffering from PTSD, “… the RPD engaged in a circular and inadequate analysis in which it disregarded the experts’ diagnosis on the basis of the symptoms associated with that diagnosis. Given the impact that the applicant’s severe PTSD may have on her ability to give coherent testimony, this reasoning is unreasonable.”

Return to note 60 referrer

Diaz Serrato v. Canada (Citizenship and Immigration), 2009 FC 176 at paras. 17-25; Asif v. Canada (Citizenship and Immigration), 2016 FC 1323 at para. 33; and Enam, supra note 58 at paras. 28 and 29.

Return to note 61 referrer

Egbesola v. Canada (Citizenship and Immigration), 2016 FC 204 at para. 12 and Irivbogbe v. Canada (Citizenship and Immigration), 2016 FC 710 at para. 36. See also Boyce v. Canada (Citizenship and Immigration), 2016 FC 922 at paras. 52-62, where the Court held that the jurisprudence provides that a psychological report based on a discredited story cannot rehabilitate that story, where the report was not based on any independent or clinical testing.

Return to note 62 referrer

Okpanachi v. Canada (Citizenship and Immigration), 2022 FC 212 at para. 30.

Return to note 63 referrer

The requirement to provide a copy of the application to separate is found in Rule 56(3) of the Refugee Protection Division Rules and Rule 41(3) of the Refugee Appeal Division Rules. The authority to excuse a person from that requirement is found in Rule 70(c) of the Refugee Protection Division Rules and Rule 53(c) of the Refugee Appeal Division Rules.

Return to note 64 referrer

Paragraph 166(c.1) of the IRPA provides that Immigration Division proceedings involving refugee protection claimants are conducted in private.

Return to note 65 referrer

Paragraphs 166(b), (c) and (c.1) of the IRPA.

Return to note 66 referrer

Code of Conduct for Members of the Immigration and Refugee Board of Canada - Immigration and Refugee Board of Canada (irb-cisr.gc.ca) at para. 36: "Members have a responsibility to consider the privacy interests of individuals in the conduct of proceedings and the writing of decisions, ensuring that decisions contain only the personal information that is necessary to explain the reasoning of the decision."

Return to note 67 referrer

The case law on refugee status determination is set out in more detail in an IRB Legal Services reference paper: Interpretation of Convention Refugee and Person in Need of Protection in the Case Law - Immigration and Refugee Board of Canada (irb-cisr.gc.ca) (December 31, 2021).

Return to note 68 referrer

IRPA, s. 96, provides that a “Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion …”.

Return to note 69 referrer

IRPA, s. 2(1), provides that “Refugee Convention” means the United Nations Convention Relating to the Status of Refugees, signed at Geneva on July 28, 1951, and the Protocol to that Convention, signed at New York on January 31, 1967.

Return to note 70 referrer

Ward, supra note 2, the Supreme Court of Canada defined the three categories of the “particular social group“ ground of persecution as follows: (i) groups defined by an innate or unchangeable characteristic; (ii) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and (iii) groups associated by a former voluntary status, unalterable due to its historical permanence. The Court noted that persons fearing gender-based persecution are an example of the first category, groups defined by an innate or unchangeable characteristic. See also paragraphs 28 to 31 of the UNHCR GUIDELINES ON INTERNATIONAL PROTECTION NO. 1: Gender-Related Persecution Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, May 7, 2002, HCR/GIP/02/01, available at: https://www.unhcr.org/publications/legal/3d58ddef4/guidelines-international-protection-1- gender-related-persecution-context.html.

Return to note 71 referrer

Ambroise v. Canada (Citizenship and Immigration), 2021 FC 62 at para. 26, citing Dezameau v. Canada (Citizenship and Immigration), 2010 FC 559 at para. 29.

Return to note 72 referrer

Josile v. Canada (Citizenship and Immigration), 2011 FC 39 at para. 21, citing Dezameau, ibid. at para. 24.

Return to note 73 referrer

Dezameau supra note 72 at para. 31 and 34; Spencer v. Canada (Citizenship and Immigration), 2011 FC 397 at paras. 4-6.

Return to note 74 referrer

Pardo Quitian v. Canada (Citizenship and Immigration), 2020 FC 846 at para. 54.

Return to note 75 referrer

See X (Re), 2019 CanLII 113782 (RAD) at para. 21, where the panel found that even where a nexus had not been established, it was necessary to apply a gender lens to the assessment of prospective risk, state protection, and internal flight alternative.

Return to note 76 referrer

Immigration and Refugee Board. Interpretation of the Convention Refugee Definition in the Case Law, “Chapter 3: Persecution”, Legal Services (December 31, 2020) https://irb-cisr.gc.ca/en/legal-policy/legal-concepts/Pages/RefDef03.aspx.

Return to note 77 referrer

See, for example, UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), https://www.refworld.org/docid/3ae6b3712c.html; UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171 https://www.refworld.org/docid/3ae6b3aa0.html; UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3 https://www.refworld.org/docid/3ae6b36c0.html; UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations OHCHR | Convention on the Elimination of All Forms of Discrimination against Women; UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, United Nations, Treaty Series, vol. 1465, p. 85 https://www.refworld.org/docid/3ae6b3a94.html; UN General Assembly, Declaration on the Elimination of Violence against Women, 20 December 1993, A/RES/48/104 https://www.refworld.org/docid/3b00f25d2c.html.

Return to note 78 referrer

Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection under the 1951 Convention and the 1967 Protocol Relating to Status of Refugees, UNHCR, Geneva, Reissued February 2019 at para. 54.

Return to note 79 referrer

UNHCR Handbook, ibid. at para. 55; Gorzsas, supra note 29 at paras. 36-40; Krishan v. Canada (Citizenship and Immigration), 2018 FC 1203 at paras.18 and 28-29; and X (Re), 2020 CanLII 24189 (RAD) at paras. 8-14.

Return to note 80 referrer

Juric-Civro v. Canada (Citizenship and Immigration), 2019 FC 1044 at paras. 21-22, citing Kadhm v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 7257 (FC).

Return to note 81 referrer

See Garces Canga v. Canada (Citizenship and Immigration), 2020 FC 749 at para. 52, citing Olah v. Canada (Citizenship and Immigration), 2017 FC 921 at para. 14; Iqbal v. Canada (Citizenship and Immigration), 2020 FC 170 at para. 43.

Return to note 82 referrer

Dezameau, supra note 72 at para. 26.

Return to note 83 referrer

Fathi-Rad v. Canada (Secretary of State), [1994] F.C.J. No. 506 at para. 9. The Federal Court found that the treatment accorded the claimant for purely minor infractions of the Islamic dress code in Iran was completely disproportionate to the objective of the law.

Return to note 84 referrer

Abu Dakka v. Canada (Citizenship and Immigration), 2020 FC 625, at paras. 23-24, citing Zolfagharkhani v. Canada (Minister of Employment and Immigration), 1993 CanLII 2971 (FCA),, [1993] 3 FC 540

Return to note 85 referrer

Numerous social science publications outline risk factors associated with determining the level of danger associated with recurrent violence and likelihood of being killed by one's partner. See for example, the Canadian Domestic Homicide Prevention Initiative, Domestic Homicide in Immigration and Refugee Populations: Culturally-informed Risk and Safety Strategies (Brief 4), February 2018. See also the Barbra Schlifer Commemorative Clinic, Intimate Partner Violence Risk Identification and Assessment Framework in Family Court, September 2020 https://www.schliferclinic.com/wp-content/uploads/2020/12/Risk-Assessment-Tool-_-IPV.pdf.

Return to note 86 referrer

AB v. Canada (Citizenship and Immigration), 2018 FC 373 at paras 8-9; Frejuste v. Canada (Citizenship and Immigration), 2009 FC 586 at paras. 30-37; and Bastien v. Canada (Citizenship and Immigration), 2008 FC 982 at paras. 9-14.

Return to note 87 referrer

Sivakumaran, Sandesh. “Lost in Translation: UN Responses to Sexual Violence Against Men and Boys in Situations of Armed Conflict.” International Review of the Red Cross. Vol. 92, No. 877. March 2010. https://international-review.icrc.org/sites/default/files/irrc-877-sivakumaran.pdf.

Return to note 88 referrer

In Canada (Minister of Citizenship and Immigration) v. Olah, 2002 FCT 595 at para. 6, the Court noted that the relevant evidence to determine the issue of state protection was not the claimant’s subjective reluctance but the documentary evidence and her personal circumstances. See also Camacho v. Canada (Citizenship and Immigration), 2007 FC 830 at para. 10 on subjective reluctance, and Kambiri v Canada (Citizenship and Immigration), 2013 FC 930 at para. 28, where the Court noted that the claimant failed to access the available programs that protected women.

Return to note 89 referrer

UN Women, “Facts and Figures: Ending Violence Against Women” (updated March 2021) reports: “Fewer than 40 per cent of the women who experience violence seek help of any sort. In the majority of countries with available data on this issue, among women who do seek help, most look to family and friends and very few look to formal institutions, such as police and health services. Fewer than 10 per cent of those seeking help appealed to the police” https://www.unwomen.org/en/what-we-do/ending-violence-against-women/facts-and-figures.

Return to note 90 referrer

See Talo v. Canada (Citizenship and Immigration), 2012 FC 478 at para. 5, where the failure to consider the social, cultural, religious, and economic context of the claimant in a state protection analysis was held to be a reviewable error.

Return to note 91 referrer

For example, minors and racialized claimants may face greater difficulty seeking and accessing state protection. See Kandha v. Canada (Citizenship and Immigration), 2016 FC 430, where the Court noted at para. 21 that the “claimant’s reluctance to seek state protection must be assessed in light of his or her status as a minor, and the fact that children may be more reluctant to seek protection”, and Cao v. Canada (Citizenship and Immigration), 2016 FC 1393 at para. 17, where the Court held that the RPD should have addressed evidence of police racism against persons of Chinese ethnicity.

Return to note 92 referrer

See Kauhonina v. Canada (Immigration, Refugees and Citizenship), 2018 FC 1300 at 17-18; Gonzalez Torres v. Canada (Citizenship and Immigration), 2010 FC 234 at 41.

Return to note 93 referrer

See A.B. v. Canada (Citizenship and Immigration), 2019 FC 1339 at paras. 20-24; Majoros v. Canada (Citizenship and Immigration), 2013 FC 421 at para. 12; and Burai v. Canada (Citizenship and Immigration), 2020 FC 966 at para. 25.

Return to note 94 referrer

Csoke v. Canada (Citizenship and Immigration), 2015 FC 1169; Hasa v. Canada (Citizenship and Immigration), 2018 FC 270 at para. 7; Toriz Gilvaja v. Canada (Citizenship and Immigration), 2009 FC 598 at paras. 43-46; and Brzezinski v. Canada (Citizenship and Immigration), 2019 FC 25 at paras. 19- 20.

Return to note 95 referrer

A.B. v. Canada (Citizenship and Immigration), 2019 FC 1339 at para. 22.

Return to note 96 referrer

Aurelien v. Canada (Minister of Citizenship and Immigration), 2013 FC 707 at para. 16: “This Court has repeatedly emphasized that the police force is presumed to be the main institution responsible for providing protection and in possession of the requisite enforcement powers. Shelters, counsellors and hotlines may be of assistance, but they have neither the mandate nor the capacity to provide protection…”. See also: Lakatos v. Canada (Citizenship and Immigration), 2019 FC 864 at para. 68.

Return to note 97 referrer

Ambroise, supra note 72 para. 12; Thirunavukkarasu v. Canada (Minister of Employment and Immigration), 1993 CanLII 3011 (FCA), [1994] 1 FC 589.

Return to note 98 referrer

Ranganathan v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 16789 (FCA), [2001] 2 FC 164 at paras. 15-17. See also Iyere v. Canada (Citizenship and Immigration), 2018 FC 67 at paras. 32-35.

Return to note 99 referrer

Rivera Benavides v. Canada (Citizenship and Immigration), 2020 FC 810; Ali v. Canada (Citizenship and Immigration), 2020 FC 93 at paras. 49-50.

Return to note 100 referrer

Ogundairo v. Canada (Citizenship and Immigration) 2017 FC 612 at 22-32. See also X (Re), 2019 CanLII 133734 (RAD) at paras. 26-29.

Return to note 101 referrer

A.H.A. v. Canada (Citizenship and Immigration), 2020 FC 787 at para. 13.

Return to note 102 referrer

In Haastrup v. Canada (Citizenship and Immigration), 2020 FC 141 at para. 37-41, the Court examined the linguistic, employment, housing, educational and medical barriers to relocation in the IFA, finding that relocation was unreasonable.

Return to note 103 referrer

Calderon v. Canada (Citizenship and Immigration), 2010 FC 263, at paras. 17-22.

Return to note 104 referrer

Rule 26(1) of the Refugee Protection Division Rules states: “If the Division believes, before a hearing begins, that there is a possibility that section E or F of Article 1 of the Refugee Convention applies to the claim, the Division must without delay notify the Minister in writing and provide any relevant information to the Minister.”

Return to note 105 referrer

The defence of “imminent harm” is established in s. 285 of the Criminal Code https://laws-lois.justice.gc.ca/eng/acts/c-46/page-42.html#docCont.

Return to note 106 referrer

A claimant or appellant should not be excluded where a member is satisfied that they took action that was necessary to protect a child or themselves from danger of imminent harm. See for example, X (Re) 2020 CanLII 121378 (RAD) at paras. 21-34. Where the member is not persuaded that defence of imminent harm applies, they should still analyse whether the parental abduction is serious enough to warrant exclusion. For example, see A.B. v. Canada (Citizenship and Immigration), 2016 FC 1385 at paras. 62-67, where the Court said that the RPD should have considered the sentencing range had the offence occurred in Canada.

Return to note 107 referrer

Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35. https://www.hcch.net/en/instruments/conventions/status-table/?cid=24.

Return to note 108 referrer

Kovacs v. Canada (Citizenship and Immigration), 2005 FC 1473 at paras. 9-10 and 37-46.

Return to note 109 referrer

Murcia Romero v. Canada (Minister of Citizenship and Immigration), 2006 FC 506 at paras. 13-16; Binyamin v. Canada (Citizenship and Immigration), 2008 FC 263 at para. 30; and X (Re), 2019 CanLII 142529 (RAD) at paras. 21 and 27.

Return to note 110 referrer

See IRPA, s. 106, and Rule 11 of the Refugee Protection Division Rules. Woldemichael v. Canada (Citizenship and Immigration), 2021 FC 1059 at para. 26 held that s. 106 of the IRPA does not preclude the RAD from overturning the RPD’s finding on the question of the Applicant’s identity. The RAD has jurisdiction to consider the question of a claimant’s identity and to intervene when RPD is wrong in law, in fact or in fact or law.

Return to note 111 referrer

IRPA, s. 108(1)(e), provides that refugee protection ceases if the reasons for which the person sought refugee protection have ceased to exist. However, IRPA, s. 108(4), provides that s. 108(1)(e) “does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment.” See Mwaura v. Canada (Citizenship and Immigration), 2015 FC 874, [2016] 1 FCR 542 at para. 26, citing Suleiman v. Canada (Minister of Citizenship and Immigration), 2004 FC 1125, [2005] 2 FCR 26 at para. 19.

Return to note 112 referrer

El Hraich v. Canada (Citizenship and Immigration), 2022 FC 213 at para 27.

Return to note 113 referrer

Chairperson’s Guideline 2: Detention - Immigration and Refugee Board of Canada (irb-cisr.gc.ca) (amended in April 2021).

Return to note 114 referrer

Von Werthern, Martha and Robjant, Katy et al. (2018). “The impact of immigration detention on mental health: A systematic review”. BMC Psychiatry. 18(1), p. 15. https://www.researchgate.net/publication/329463666_The_impact_of_immigration_detention_on_mental_ health_A_systematic_review, See also Office of the United Nations High Commissioner for Human Rights. “Women and Detention”. September 2014. which states “Even a short period in prison may have damaging, long-term consequences for the children concerned.” https://www.ohchr.org/Documents/Issues/Women/WRGS/OnePagers/Women_and_Detention.pdf

See also United Nations Office on Drugs and Crime. “Handbook on Women and Imprisonment” (2nd ed.) March 2014, Chapter 1, section 6, “Pregnancy and women with children”. https://www.unodc.org/documents/justice-and-prison-reform/women_and_imprisonment_- _2nd_edition.pdf.

Return to note 115 referrer

Akram, Susan M. “Millennium Development Goals and the Protection of Displaced and Refugee Women and Girls,” 2 Laws 283 (2013) at p. 288. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2460908.

Return to note 116 referrer

For example, views on family planning and knowledge of a spouse’s employment may not be helpful in assessing the genuineness of a marriage. In Abdi v. Canada (Citizenship and Immigration), 2018 FC 475 at para. 37, the Court held that while the issue of family planning may be commonplace amongst couples in Canada, such a notion “lacks both cultural diversity and an appreciation for the diversity of human relationships”. In Graham v. Canada (Citizenship and Immigration), 2020 CanLII 84276 (IAD), the visa officer improperly relied on the assumption that the applicant’s lack of knowledge of the appellant (including her medical history) and age difference signified that the relationship was not genuine.

Return to note 117 referrer

In considering the evidence before them, Members should assess not only the existence of efforts made by the government to address gender-based violence and gender-based discrimination but also the operational effectiveness and adequacy of these efforts in the country of removal. See Ramesh v. Canada (Citizenship and Immigration), 2019 FC 778 at paras. 18-22.

Return to note 118 referrer

Dayal v. Canada (Citizenship and Immigration), 2019 FC 1188 at para. 42.

Return to note 119 referrer

Similarly, Criminal Code, ss. 718.2(a)(ii) and (iii) provide that aggravating factors in sentencing include evidence that the offender, in committing the offence, “abused the offender’s intimate partner or a member of the victim or the offender’s family”, or “abused a position of trust or authority in relation to a victim”.

Return to note 120 referrer

Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61 at para. 35. See also Mohammed v. Canada (Citizenship and Immigration), 2019 FC 271 at paras. 38-39, where the Court noted at para. 39 that the evidence before the visa officer indicated that in Ethiopia the child faced “serious gender discrimination, widespread child abuse, an education system that will not permit her to maintain French and English, widespread human rights violations, widespread sexual harassment, discrimination, an authoritarian regime that denies free speech”. See also Sultana v. Canada (Citizenship and Immigration), 2009 FC 533 at para. 34.

Return to note 121 referrer

Penny v. Canada (Public Safety and Emergency Preparedness), 2020 CanLII 84263 (IAD) at paras. 26-28. See also Dayal, supra note 119 at para. 37, where the Court found that the IAD erred in its BIOC assessment by failing to consider the children’s experience as witnesses to the abuse and the absence of a father figure in their lives (citing Saidoun v. Canada (Citizenship and Immigration), 2019 FC 1110 at paras. 24-25). The Court also noted that children can be negatively impacted not only by the violence directly but also by a decline in their parent’s mental health due to their experience of family violence.

Return to note 122 referrer

See the Power and Control Wheel for more details at The Duluth Model. https://www.theduluthmodel.org/wheels/” and ”Enhancing Safety: When Domestic Violence Cases are in Multiple Legal Systems (Criminal, family, child protection) A Family Law, Domestic Violence Perspective, Part 5.4.3 Coercive, Controlling Domestic Violence”, Department of Justice Canada, https://www.justice.gc.ca/eng/rp-pr/fl-lf/famil/enhan-renfo/p3.html See also “What is Domestic Abuse?”, United Nations COVID-19 Response, https://www.un.org/en/coronavirus/what-is-domestic-abuse.

Return to note 123 referrer

Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics at Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics - Immigration and Refugee Board of Canada (irb-cisr.gc.ca)

Return to note 124 referrer

“Integrating A Gender Perspective Into Human Rights Investigations, Guidance and Practice”, United Nations Human Rights Office of the High Commissioner, HR/PUB/18/4, 2018 https://www.ohchr.org/Documents/Publications/IntegratingGenderPerspective_EN.pdf, p. 7.

Return to note 125 referrer

Chairperson’s Guideline 9, supra note 124

Return to note 126 referrer

WAGE, see “gender norms” supra note 3

Return to note 127 referrer

WAGE, see “family violence” supra note 3

Return to note 128 referrer

WAGE, see “intimate partner violence” supra note 3

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