This piece was prepared for the Osgoode Refugee Law Fall 2012 class. The following is not legal advice and should not be treated as such.

Prepared by: Felix Chairov, Jenny Rokhline and Rebecca Lockwood

X (Re) exemplifies that the Immigration Refugee Board (“IRB”) continues to disregard gender in its analysis of credibility and objective evidence.  First, the Board did not demonstrate sensitivity in terms of gender or culture in the assessment of the female applicant’s credibility.  Second, the assessment of objective evidence did not take into account gender as a broad social group, narrowing the focus to the claimant’s age group.  Finally, this paper suggests that the decision demonstrates the need to re-evaluate the bipartite test of proof of subjective and objective fear for female claimants.  The unique challenges that gender presents in assessing refugee claims has led scholars like Elizabeth Adjin-Tettey to critique the refugee protection framework and suggest a test which eliminates the distinction between subjective and objective fear.

The three claimants of Indo-Fijian background are citizens of Fiji.[1]  They claim refugee status on the grounds of religion and race under section 96 of Immigration and Refugee Protection Act (“IRPA”) and personalized risk to life and risk of cruel and unusual treatment under section 97(1) of IRPA. The principal claimant Mr. X (59 years old) is the husband of the associated claimant Mrs. X (50 years old) and father to the second associated claimant (30 years old).[2]  The family lived in a village where they were subjected to harassment and targets of theft from the native Fijians.[3]  In 2000 following the coup, the native Fijians attacked the house with stones.  Many Indo-Fijians lost their lives and many Indian girls were raped at knifepoint during this time.  The family remained indoors for two months out of fear.  They were evicted from their land, despite the principal applicant’s family having worked the land for four generations. The native Fijians continued to harass the claimants after eviction.

The second associated claimant came to Canada on a work permit in 2008.[4]  The principal and associated claimants came to Canada in 2009.  The Board held that on a balance of probabilities they would not suffer personalized risk to life and that they did not have a well-founded fear of persecution.[5]  The associated claimant was afraid of being targeted for her gender and ethnicity if returned to Fiji.  She testified that she stayed at home most of the time and alleged to have witnessed the rape of her 28-year-old female neighbor.[6]  The Board found that while she might have had a subjective fear of persecution, the objective evidence did not support her claim.[7]  Moreover, the Board had credibility concerns with all three claimants.

Gender Sensitivity, Female Associated Claimants and the Impact on Credibility

The Board questioned Mrs. X’s credibility for lack of corroborative statements from her husband relating to the neighbour’s rape that she witnessed and her inability to describe this rape in detail.  The IRB member stated that it would be expected to have “more specific details from someone who allegedly witnessed the incident happen and allegedly discussed with the victim afterwards.”[8]  As a result, the Board decided Mrs. X to be a non-credible claimant to whom Guideline 4 should not apply.

Although the majority of the world’s refugees are women and children, men are more likely to emigrate as principal refugee applicants with women as their dependents.[9]  As a result, persecution suffered by women is often ignored or misunderstood because their applications depend on the male principal claimants.[10]  The case at bar is no exception.  In its finding of credibility, the Board did not display sensitivity to the unique cultural and gender elements of the female claimant.  Furthermore, Mrs. X’s position as an associated claimant was detrimental to the evaluation of her testimony.

As stated by Audrey Macklin, the “credibility determination is not about ‘discovering’ truth.  It is, rather, about making choices – what to accept, what to reject, how much to believe, where to draw the line – in the face of empirical uncertainty.”[11]  While assessing credibility is one of the most difficult tasks that the decision-maker faces, it should be noted that women refugee claimants face special problems demonstrating that their claims are credible.  Some of the difficulties may arise because of cross-cultural misunderstandings.  The executive committee of the UNHCR and the IRB have noted that in the refugee context the credibility determination requires a “thoughtful, sensitive appreciation for the cultural background of a claimant as well as an understanding of the extraordinary circumstances of a refugee.”[12]  Yet it seems that in this decision, no such sensitivity was employed.

It is likely that Mrs. X’s son and husband were present at the time of her testimony and this might have influenced her ability to provide details of the witnessed rape.  It has been noted that due to the specifics of their culture and beliefs, some women claimants might be uncomfortable sharing the incidents of sexual nature with strangers or in front of men.  More so, in some cultures it is considered a taboo.[13]  Without making any inquiries as to why Mrs. X was evasive in describing the incident, the Board member asserted that she lacked credibility and found her fear of persecution not to be genuine.[14]

Mrs. X’s credibility was also questioned because Mr. X did not corroborate her testimony of the neighbour’s rape.  However, this should not have undermined the fact that women might have been raped in the claimants’ neighborhood.  In Rajaratnam v Canada (MEI), the Court noted that “discrepancies in the evidence of a refugee claimant should lead to a denial of refugee status only where there are real internal inconsistencies in the testimony of the claimant which cannot reasonably be explained” [emphasis added].[15]  Counsel for the claimant put forward evidence attesting that the sexual violence against women exists in Fiji.[16]  Regardless of how weak the Board thought it was, there was no documentary evidence provided that contradicted Mrs. X’s claims of fear of rape.  Therefore, it seems unjust for the Board to rely on the absence of corroborative evidence from the spouse to undermine Mrs. X’s credibility.

The decision demonstrates that in evaluating female refugee claimants, the Board was not sensitive to the special concerns that may arise due to gender.  Moreover, it is clear that as associated claimants, women are often overshadowed by the male principal claimants.  As a result, the persecution suffered by associated female claimants continues to be ignored.

 Age, Gender and the Objective Evidence of Well-Founded Fear

The Board did not rule out that the claimant has a subjective fear, but dismissed the claim for lack of objective evidence of well-founded fear. The Board member concluded that the claimant has never experienced sexual violence against her and is not likely to be subjected to rape because of her age based on the evidence presented by counsel.  The Board did not consider gender as a whole and instead inappropriately shifted the focus to the claimant’s age.  Moreover, the Board displayed arbitrariness in its analysis of objective evidence undermining the objective branch of the well-founded fear test.

The evidence demonstrates that in the past five years 44% of rape victims were between the age 18 and 24 and 22% were below the age of 18.[17] The Board did not deny that rape is prevalent in Fiji; however, it suggested that the claimant’s age group, 50 and over, reduced her likelihood of rape.  This inference is problematic.  While Mrs. X did not explicitly make a claim based on membership in a particular social group, this is not an adversarial process and the Board should have considered all grounds.[18]  On the face of the facts, it was open for the Board to connect the claimant to women of Fiji as a member in a particular social group.  In doing so, it would not have been appropriate for the Board to distinguish women based on age.  The Board would have had to look at the threat of rape to women of Fiji as one group. In this case there is evidence that objective fear of rape exists.  Following the coup, women were raped at knifepoint.[19]  Counsel presented evidence of rape of an older woman and high incidences of rape among younger women.[20]  Cumulative evidence points to the prevalence of rape and threat to women as one group.

Additionally, there is a problem with arbitrariness in the Board’s assessment of objective evidence.  Since the evidence suggested that the claimant in her age group makes up less than 32% of rape victims, the Board decided that this percentage does not constitute a serious possibility of risk.  At first glance, the Board’s statistical reasoning is supported by case law.  Adjei v Canada (MEI) holds that a claimant has to establish good grounds or serious possibility of persecution.[21]  However, there are no guidelines for quantifying good grounds of persecution and therefore deciding a statistical limit is arbitrary.  It creates further uncertainty in an already discretionary process and may have negative implications for future female claimants, especially if they did not experience persecution personally or do not have strong objective evidence.

The Board demonstrates the arbitrary nature of weighing objective evidence in this decision.
Not only does it disregard gender as a social group, the arbitrary approach to objective evidence undermines the validity of the objective branch of the well-founded fear test.

 A Critique of the Dual Fear Test in the Current Refugee Protection Framework

The critique above demonstrates that the Board failed to give gender the necessary weight.  More generally, it demonstrates that the bipartite test of subjective and objective fear makes it difficult for many women to establish their credibility.  This decision points to the necessary re-evaluation of the bipartite test for women claimants that abandons the objective requirement in favour of focusing solely on the subjective fear, as suggested by Elizabeth Adjin-Tettey.

Adjin-Tettey argues:

In view of the lack of documentation of the actual conditions of women in most societies, the UNHCR and IRB Gender Guidelines would have come closer to advocating a truly gender-inclusive refugee protection framework if they had also taken the position that the credible evidence of female applicants, standing alone, ought not be considered as subjective evidence, but sufficient to constitute the objective basis for a claim to a well-founded fear of persecution.[22]

This case is a prime example of why her position should be adopted. The Board acknowledged that Mrs. X had a subjective fear of rape, believing she limited her movement outside the home due to a genuine fear.[23] Yet the Board concluded there was no serious possibility of persecution for lack of objective evidence.  It appears that Mrs. X’s age was an important factor in determining the potential for risk of rape.  However, the objective evidence made no mention of rape statistics for women over the age of 24. It is not known for certain if such statistics even exist.  Since it appears that rape is more common among young women, it is possible to assume that the majority of research focuses on that age group.  Evidence of persecution of women in the claimant’s age group is not present in the case, although counsel may not be at fault for failing to provide it.  There is simply a lack of documentation on the actual condition of women globally, as Adjin-Tettey points out.  This made it difficult for Mrs. X to support her objective fear and thus substantiate her claim as a whole.  Moreover, the dearth of evidence on women over 50 enabled the Board to make arbitrary interpretations of the existing data.

The relative scarcity of data on gender-based persecution is evident throughout the case.  While there is extensive documentary evidence of tensions between ethnic groups and crimes against persons, evidence of crimes against women is relatively scarce.  As Adjin-Tettey points out, “it is a fact that the situation of women is not often documented in the usual sources which establish conditions of human rights violations in various countries.”[24]  If Adjin-Tettey’s singular fear test were adopted, Mrs. X might have had a better chance to have her refugee claim granted.  With her subjective fear found potentially credible, she would not have had to rely on evidence that simply did not exist.

Conclusion

As illustrated above, there still exists a unique challenge for women claimants.  X (Re) demonstrates how the Board can discount the role that gender should play in assessing credibility and objective evidence in particular.  First of all, gender requires that certain sensitivity be shown to women when assessing their credibility. Their frequent position as associated claimants to men, as in this case, should be taken into consideration.  Second, adjudicators should be cautious in their weighing of objective evidence and not to lose sight of gender as a broad social group.  Finally, this case demonstrates how a revised refugee protection framework, specifically the elimination of a bipartite fear test, would alleviate some of the extra challenges faced by female claimants.

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[1] X (Re), 2011 CanLII 76800 (IRB) at para 3 [X(Re)].

[2] Ibid at para 8.

[3] Ibid at paras 4-8.

[4] Ibid at para 8.

[5] Ibid at paras 33-34.

[6] Ibid at para 14.

[7] Ibid at para 15.

[8] Ibid at para 11.

[9] ICCL Women’s Committee, “Women and the Refugee Experience: Towards a Statement of Better Practice” s 1.3, online: <http://cgrs.uchastings.edu/documents/legal/gender_guidelines/Irish%20Council%20for%20Civil%20Liberties%20Women%20and%20the%20Refugee%20Experience%20-%20Best%20Practices%20-%202000.pdf>.

[10]  Ibid.

[11] Audrey Macklin, “Truth or Consequences: Credibility Determinations in the Refugee Context” (International Association of Refugee Law Judges: Ottawa, Canada, 14-16 October 1998) at 136.

[12]Selwyn A Pieters, “Assessment of Credibility in the Context of a Refugee Protection Division Hearing is not an Exact Science — It is the Art that Makes or Breaks a Refugee Claim”31 Imm LR (3d) 276 at 276; for more see Elizabeth Adjin-Tettey, “Reconsidering the Criteria for Assessing Well-Founded Fear in Refugee Law” (1997) 25 Man LJ 127-151 at para 14 [Adjin-Tettey].

[13] Adjin-Tettey, supra note 12 at para 16.

[14] Human Rights Watch, The Human Rights Watch Global Report on Women’s Human Rights (New York: Human Rights Watch, 1995) at 106-110.

[15]135 NR 300 at para 17, 1991 CarswellNat 851(WL Can).

[16] X(Re), supra note 1 at para 15.

[17] Ibid at para 15.

[18] Canada (Attorney General) v Ward, [1993] 2 SCR 689 at 745, 746, 103 DLR (4th) 1.

[19] X(Re), supra note 1 at para 5.

[20] Ibid at para 15.

[21] [1989] 2 FC 680 at para 3, 7 Imm LR (2d) 169 (FCA).

[22] Adjin-Tettey supra note 12 at para 66.

[23] X(Re), supra note 1 at para 15.

[24] Adjin-Tettey supra note 12 at para 29.