First of all, I would like to thank the Canadian Women's Studies Association for inviting me here today. I always love having the distinct privilege of sometimes being the only male on a conference program, because it means that people will always be interested in what I have to say, which in turn gets me results when I am speaking on important human rights policies around the world.
The first article I ever published after I formed the Institute for Women and Children's Policy was entitled Granting Political Asylum to Potential Victims of Female Circumcision, which was published in 1995 in the Michigan Journal of Gender and Law.1 My original purpose in writing the article was to bring to the attention of the legal community the need to grant political asylum to women and girls who are facing this practice. As I was going through the research, I ran across the case of Khadra Hassan Farah, whose daughter, Hodan, was the first person in the world to be granted refugee status based on a fear of female circumcision.2 When I called the Immigration and Refugee Board of Canada for a copy of the decision, they sent me not only the Farah opinion, but another document entitled Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act: Women Refugee Claimants Fearing Gender-Related Persecution.3
I read this document with great interest and did some research on it. It was during this research that I learned about the plight of the Saudi woman who was known as Nada, who hid in Montreal for 21 months because the IRB ordered her deported by telling her that she should respect the wishes of her father and continue to observe Saudi social values. After reading about this document from various newspaper accounts around the time that the Gender Guidelines were released, I decided to change the focus of the article. I added a new section in which I created a hypothetical situation of a woman with a daughter who were facing deportation. The woman had undergone female circumcision in her native Nigeria, but the daughter, who was an American citizen because she was born in the U.S., would have been subject to the procedure if mother and daughter were deported to Nigeria. What I did was take the Gender Guidelines and applied American immigration law to this hypothetical to win asylum for both the mother and daughter.4
It has now been five years since Nurjehan Mawani, Chairperson of the Immigration and Refugee Board, first issued the Gender Guidelines. The Canadian Gender Guidelines have become the standard by which other countries follow when considering gender-based persecution claims. Guidelines now exist in both the United States and Australia, with other countries considering similar guidelines.
What I wish to do in my talk today is take a look at the Gender Guidelines five years after they were first issued. First I will examine the history of the guidelines and what led to their creation. I will then will examine how the guidelines have since influenced Canadian refugee policy. I will do this by examining a prominent immigration case that was decided by the IRB in 1993. Following up on this avenue, I will look at how the guidelines are influencing refugee policy throughout the world. In this section, I will give you an analysis of the gender guidelines that were adopted by the United States and how is it influencing refugee policy there. Finally, I will offer final recommendations on what Canada should do to further the cause of granting refugee status to claimants of gender-based persecution around the world.
No standard definition of persecution currently exists in any country.5 The Supreme Court of Canada, in dealing with this, has stated that "‘[p]ersecution' . . . undefined in the Convention, has been ascribed the meaning of ‘sustained or systemic violation of basic human rights demonstrative of a failure of state protection.'"6 The Office of the United Nations High Commissioner for Refugees (UNHCR), in its Handbook on Procedures and Criteria for Determining Refugee Status, infers from Article 33 of the 1951 Convention on the Status of Refugees that persecution is "a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group."7 The handbook continues by saying,
Whether other prejudicial actions or threats would amount to persecution will depend on the circumstances of each case, including the subjective element to which reference has been made. . . . The subjective character of fear of persecution requires an evaluation of the opinions and feelings of the person concerned. It is also in the light of such opinions and feelings that any actual or anticipated measures against him must necessarily be viewed. Due to variations in the psychological make-up of individuals and in the circumstances of each case, interpretations of what amounts to persecution are bound to vary.8This statement by the UNHCR suggests that the forms types of persecution enumerated in the 1951 Convention Relating to the Status of Refugees (1951 Convention)9 and its 1967 Protocol Relating to the Status of Refugees (1967 Protocol)10 should not be seen as exhaustive.11 Under the 1951 Convention, the 1967 Protocol, and the asylum laws of most countries, claiming refugee status based on persecutions that occur to a person because of their sex (such as female genital mutilation, forced sterilization, rape, domestic violence and others) alone are not sufficient grounds for asylum unless the act falls within one of the five enumerated forms of persecution. I have argued in this past that each is an independent form of persecution that should be recognized by national and international law.12 This is what the Gender Guidelines has proven in the five years since they were issued.
In 1991 a woman known only as Nada13 came to Canada to escape the social mores of Saudi Arabia, where "she ha[d] been forced to live her life as a second-class citizen."14 One account says that
Nada was persecuted by almost constant ridicule, threats of violence, and violence because she refused to wear the veil women use to cover their faces and because she often walked unescorted in the streets of her town. Men would jeer, spit, and throw rocks at her.When Nada finally decided that she had had enough and she wanted to leave Saudi Arabia, "[i]t took her three years to get a passport, and she had to leave the country accompanied by her brother."16She was also harassed on several occasions by the Mutawwi'in, religious authorities who patrol the streets carrying sticks with which they beat women who are not sufficiently modest in dress or manner. These authorities are legally empowered by the state to detain suspects. The Mutawwi'in have been known to threaten women with an "inspection of virginity" for violating the dress code or for being seen in public with men who are not their fathers, brothers, or husbands.15
Nada sought refugee status on 5 April 1991 to the Immigration and Refugee Board, claiming persecution on political opinion. She told the board in a statement, "I am being trapped in a situation similar to death. Why can't I regain my dignity and personal integrity as a woman and as a human being somewhere else where that is possible?"17 However, IRB Commissioner Louis Dorion, in rejecting Nada's claim, "suggested that Nada would ‘do well to comply with the laws of general application she criticizes . . . or to show consideration for the feelings of her father who, like all the members of his large family, were opposed to the liberalism of his daughter[.]"18 After Nada was ordered deported, she went into hiding in Montreal for 21 months.19 Bernard Valcourt, Minister of Education and Immigration at the time, initially rejected Nada's appeal, stating that "imposing Canadian values on other countries would be ‘imperialist' and would open immigration floodgates."20 However, with pressure from human rights groups and lawyers, Mr. Valcourt reversed his decision and granted Nada permanent residency on humanitarian grounds.21
While the Nada drama was being played out in the Ministry of Education and Immigration, Canada's parliament was considering Bill C-86. Bill C-86, which amended § 65(3) of the Canadian Immigration Act, gave the chairperson of the Immigration and Refugee Board the authority to "issue guidelines to assist the members of the Refugee Division and Appeal Division [of the Immigration and Refugee Board] in carrying out their duties under [the Immigration Act]."22 Since this act was promulgated, the chairperson has issued three guidelines: Women Refugees Fearing Gender-Related Persecution, issued 9 March 1993; Civilian Non-Combatants Fearing Persecution in Civil War Situations, issued 7 March 1996; and Child Refugee Claimants: Procedural and Evidentiary Issues, issued 30 September 1996. Today, I will only deal with the first guidelines.
In 1991, a Working Group on Women Refugee Claimants met in Toronto "for the development of a discussion paper to raise issues specific to women refugees from both substantive and procedural perspectives."23 In developing the paper, "[r]elevant jurisprudence was consulted from the Supreme Court of Canada, the Federal Court of Canada, the former Immigration Appeal Board (the predecessor to the IRB), and the IRB itself."24 In August 1992, a draft discussion paper was circulated to IRB Members and other interested groups, including the Office of the United Nations High Commissioner for Refugees, the Canadian Council for Refugees, the Canadian Advisory Council on the Status of Women, the Inter-Church Council for Refugees, and the general public for comment.25
Based on comments received, the draft discussion paper was revised by IRB Legal Advisers, which became the draft Guidelines for Women Refugee Claimants Fearing Gender Related Persecution. After further consultations with IRB Members and staff, Ms. Mawani finalized the guidelines.26 The guidelines were formally issued the day after International Women's Day, 9 March 1993.27
The Gender Guidelines outlines four critical questions that "most gender-related refugee claims brought forward by women raise[.]"28 The four questions are:
1. To what extent can women making a gender-related claim of fear of persecution successfully rely on any one, or combination, of the five enumerated grounds of the Convention refugee definition?On 25 November 1996, an Update to the Gender Guidelines was issued by the IRB Chairperson. According to Ms. Mawani, "The Update was necessitated by the volume of jurisprudence that has emerged in the field of gender-related claims and also by the experience we have gained with such claims since the issuance of the original Guidelines."30 In a speech to the U.S. Immigration Judges Conference in 1997, Ms. Mawani explained how the Update strengthened the original Gender Guidelines issued in 1993:2. Under what circumstances does sexual violence, or a threat thereof, or other prejudicial treatment towards women constitute persecution as that term is jurisprudentially understood?
3. What are the key evidentiary elements which decision-makers have to look to when considering a gender-related claim?
4. What special problems do women face when called upon to state their claim at refugee determination hearings, particularly when they have had experiences that are difficult and often humiliating to speak about?29
One of the most important changes reflected in the Update results from the 1993 Supreme Court decision in Ward, in which the Court commented on two subjects directly related to refugee status. Those subjects were membership in a particular social group, and state protection which were referred to earlier. The Update also contains new references to the issue of change of circumstances. It recognizes that a positive change in the situation in a country may have no impact or may have even a negative impact on a fear of gender-related persecution. Further, the Update addresses the issue of internal flight alternative. As we are all aware, the international protection regime is only triggered when domestic protection fails. Hence, decision-makers have to consider if the claimant has a viable internal flight alternative within her country before she can successfully invoke Canada's protection. The Update suggests that the decision-maker should take into account factors including religious, economic, and cultural factors, and consider whether and how these factors affect women when assessing an internal flight alternative.31Since the Gender Guidelines were issued in 1993, and especially after the favorable decision in the Khadra Hassan Farah case that I will describe later, many Canadians were afraid that this new policy would open "floodgates" of women to come into Canada to claim refugee status. To counter these claims, Ms. Mawani reported in 1997 that
[s]ince 1993, the Board has identified 1200 gender-related claims. For these years, a total of 664 claims were accepted and 363 were rejected. At the end of 1996, 173 claims were either withdrawn, abandoned, discontinued or otherwise finalized and 216 claims were pending. In 1996, approximately 1.4 percent of all claims finalized by the Board were gender-related. Women claimants still account for approximately one-third of the total claims.32Even after the Farah decision became public in 1993, Ms. Mawani told the press:
Refugee determination is always on a case-by-case basis. I expect we may see a few more cases, but certainly no floodgates. If you look at the overall worldwide situation, only 5 percent of world refugees are able to claim refugee status in the West, and of these the proportion of women is abysmally small. Women do not have the same mobility as men.33
Since the Gender Guidelines were put into effect on March 9, 1993, they have had a big impact on Canadian refugee policy. Canadian jurisprudence has endorsed the approach of the IRB in two important decisions, Chan v. Canada (Minister of Employment and Immigration)34 in 1995 and Canada (Attorney-General) v. Ward35 in 1993. Ms. Mawani gave U.S. immigration judges one example of the impact of the guidelines:
The claimant, a lesbian, was detained by police along with her lover, threatened with rape, and sexually touched. Several months later, a policeman reminded her that she was known to the authorities and could easily be disposed of. The Refugee Division concluded that the harm suffered by the claimant was serious enough to give rise to a well-founded fear of persecution. While homosexual behaviour was not a criminal offence in Venezuela, homosexuals were often subjected to police harassment and violence. Particular weight was given to the claimant's evidence regarding her strong self-identity as a lesbian, which made it more likely that she would be detected and harassed by the authorities. She was not only challenging the social norm of heterosexuality, but also transgressing the social mores regarding the role of women in society. State protection was not available to the claimant. Given that police abuse of homosexuals was worse in rural areas than in cities, and that the claimant came from the capital city of Caracas, there was no viable internal flight alternative available to her. She had a well-founded fear of persecution based on her membership in two particular social groups, women and homosexuals, the two indivisible elements of being a lesbian woman.36Let me take a moment here to give an example of how the Gender Guidelines have influenced Canadian Refugee Policy.
Khadra Hassan Farah is a Somali national.37 When she was 16, she married a man 20 years her senior, a marriage that was arranged by her father.38 The marriage produced three children, two sons, aged 12 and 7 at the time of the hearing, and a daughter, age 10. The younger son and the daughter, Hodan,39 were co-claimants with Ms. Farah. In 1989, Ms. Farah and her husband came to the United States with two of her three children.40 In March 1991, after two years of abuse, she left her husband and went to Canada with her two children seeking political asylum.41 In 1992, Ms. Farah's husband granted her a divorce after she refused to move in with his relatives living in Toronto.42 He retained custody of their older son.
In her hearing before an IRB panel, Ms. Farah testified that she would lose the custody of her remaining two children, since Sharia law gives fathers automatic custody of children in the event of a divorce. Ms. Farah "stated that she would be destroyed if she could not see her children and that it would be better for her to be dead."43
Ms. Farah also argued before the IRB that her 10-year-old daughter, Hodan, would be subject to female genital mutilation if she were deported to Somalia with her children.44 As evidence, she testified about her own circumcision at the age of eight.45 In her Personal Information File (PIF), Ms. Farah, speaking on Hodan's behalf, stated
Should I be forced to go back to Somalia, my children will be taken away from me and my daughter will be subjected to the pain and agony that I had been subjected to.Ms. Farah also testified that, if she were deported to Somalia, she would put Hodan up for adoption in Canada rather than subject her to the torture of circumcision.47During my stay in Canada, both my children had become acculturated [sic] to Canadian life: My daughter, [Hodan] in particular enjoys the broad horizons of opportunity and freedom allowed to women in Canada. If she were to return to Somalia, she would be traumatized first by the infibulation and then by the severely restrictive role in which Somali women are placed by custom and by shariat, the Islamic law.46
On 10 May 1994, a two-member panel of the IRB rendered their decision. The panel found that Hodan's "right to personal security would be grossly infringed" if Ms. Farah was forced to return to Somalia.48 To support its decision, the panel cited the Gender Guidelines and the United Nations Convention on the Rights of the Child,49 specifically articles 19,50 24,51 and 34.52 The panel concluded that, according to the principles contained in these documents, Hodan was subject to persecution based on her membership in "two particular social groups, namely, women and minors."53 The panel said that Hodan's "gender is an ‘innate or unchangeable characteristic,' and the fact that she is below the age of majority is also, for the foreseeable future, something she cannot change."54 Thus, Hodan qualified as a member of both social groups55 and was eligible for asylum.56
When the Gender Guidelines were announced in March 1993, it marked the first time that any country decided to take the subject of gender-based persecution seriously. The United Kingdom is working on similar guidelines for their immigration adjudicators and the Gender Guidelines are now being translated into German.57 It has also had a large impact on immigration policy in both the United States and Australia. I want to take a brief look at how the Gender Guidelines has influenced immigration policy outside of Canada.
On 26 May 1995, the United States Office of International Affairs of the U.S. Department of Justice issued a memorandum entitled "Considerations For Asylum Officers Adjudicating Asylum Claims From Women." The memo, issued by Phyllis Coven, director of the Office of International Affairs, to the INS Asylum Officer Corps, was issued to provide "guidance and background on adjudicating cases of women having asylum claims based wholly or in part on their gender."58
Like the Gender Guidelines, the American Guidelines do not create, per se, another category in which women can be granted asylum, but rather instructs Asylum Officers to be more sensitive to the plight of women coming in their own right to request asylum. Asylum Officers are to be "customer friendly" when dealing with women claimants, to allow them to "discuss freely the elements and details of their claims."59 The memo points to these variables:
1. The laws and customs of some countries contain gender-discriminatory provisions. Breaching social mores (e.g., marrying outside of an arranged marriage, wearing lipstick or failing to comply with other cultural or religious norms) may result in harm, abuse or harsh treatment that is distinguishable from the treatment given the general population, frequently without meaningful recourse to state protection. As a result, the civil, political, social and economic rights of women are often diminished in these countries.Unfortunately, the American Guidelines do not go as far as the Canadian Guidelines in recognizing gender-based persecution and the effects that it has on women claimants.61 It is, however, a starting point that will hopefully lead to legislation and codification of regulations to assure that women refugee claimants will be treated fairly before an Asylum Officer in the United States.2. Although women applicants frequently present asylum claims for reasons similar to male applicants, they may also have had experiences that are particular to their gender. A woman may present a claim that may be analyzed and approved under one or more grounds. For example, rape (including mass rape in, for example, Bosnia), sexual abuse and domestic violence, infanticide and genital mutilation are forms of mistreatment primarily directed at girls and women and they may serve as evidence of past persecution on account of one or more of the five grounds.
3. Some societies require that women live under the protection of male family members. The death or absence of a spouse or other male family members may make a woman even more vulnerable to abuse.
4. Women who have been raped or otherwise sexually abused may be seriously stigmatized and ostracized in their societies. They may also be subject to additional violence, abuse or discrimination because they are viewed as having brought shame and dishonor on themselves, their families, and their communities.60
On 15 July 1996, three years after Canada implemented its Gender Guidelines, the Australian Minister for Immigration and Multicultural Affairs, Philip Ruddock, announced that Australia had finalized guidelines for asylum seekers with gender-related claims, timing the announcement with the visit of the United Nations High Commissioner for Refugees to Australia. In recognizing how female asylum seekers and refugees face special problems getting protection, the minister noted:
They might experience persecution differently to men and they do not necessarily have the same remedies for state protection. . . . The result is that some women asylum seekers have difficulty in having decision-makers recognise the particular forms of persecution they face. They might also experience difficulties in discussing claims related to sexual violence or cultural difficulties.62In developing the guidelines, the minister "consulted extensively with key agencies . . . and their views have been taken into account and modifications made."63 The minister had also consulted with attendees at the Women in Migration Conference, that was organized by the Bureau of Immigration, Multicultural and Population Research in June 1996.
Like the guidelines in Canada and the United States, Australia's Gender Guidelines do not create a new category of persecution. "However, they will ensure that decision-makers deal with gender-related claims in a sensitive and consistent manner,"64 the minister noted. "The guidelines reflect the Government's commitment to work with the UNHCR to ensure bona fide refugees are given every opportunity to present their case in a sensitive and fair process."65 As of now, I have no figures on how the guidelines are working in Australia, but hope to have them at a later date.
In July 1991, the Office of the United Nations High Commissioner for Refugees issued its Guidelines on the Protection of Refugee Women. In noting that gender is not one of the established grounds for the granting of asylum in the 1951 Refugee Convention:
The claim to refugee status by women fearing harsh or inhumane treatment because of having transgressed their society's laws or customs regarding the role of women presents difficulties under this definition. As a UNHCR legal adviser has noted, transgressing social mores is not reflected in the universal refugee definition. Yet, examples can be found of violence against women who are accused of violating social mores in a number of countries. The offence can range from adultery to wearing of lipstick. The penalty can be death. The Executive Committee of UNHCR has encouraged States to consider women so persecuted as a social group to ensure their coverage, but it is left to the discretion of countries to follow this recommendation.66The guidelines continue by discussing women's access to hearings,67 refugee determination interviews,68 inequities in granting of refugee status,69 absence of documentation,70 repatriation decisions,71 and local integration.72
Within the past few years the UNHCR has been urging more countries to follow to lead of Canada and the United States in recognizing gender-based persecution claims. "Women who flee gender-based persecution, however small their number, should not be turned away from your borders or refused recognition as refugees. . . . They are not a threat -- they are themselves threatened -- and humanity dictates that they receive protection and refugee status," Wairimu Karago, deputy head of UNHCR's Division of International Protection, told representatives of 16 countries at a symposium on gender-based persecution in Geneva.73
As I mentioned earlier in this presentation, I have been pursing the policy of recognition of gender-based persecution for the past two years. In doing so, I have long noted that governments need to follow the lead of Canada in the recognition of gender-based persecution. Canada has opened the door to recognition of the granting of refugee status in both national and international law. The amending of the Immigration Act in 1992, which lead to the release of the Gender Guidelines is a start. But I believe more must be done, not only in Canada, but throughout the world.
I have been lobbying for the past two years to add gender to the enumerated forms of persecution in the 1951 Convention, of which Canada is a party to. Ms. Mawani, in a speech that she delivered on 10 February 1993, in noting that "a number of prominent Canadians had suggested that Canada should amend [the Canadian] Immigration Act to incorporate gender as a ground for a well-founded fear of persecution,"74 stated that "changing the definition unilaterally is a serious public policy issue, and one which I believed Canadians had to deal with in more depth."75 While I can agree with this statement, I also believe that Canadians, Americans, Australians, and others have considered the public policy in more depth. What I will offer here are my recommendations on what should be done, both in Canada and with other national governments, to recognize gender-based persecution in immigration cases.
It is my belief that the first move towards recognition of gender for the purposes of the granting of refugee status must come from the United Nations. I continue to press for an amendment to the 1951 Convention Relating to the Status of Refugees to add gender among the enumerated forms of persecution. By amending Article 1(A)(2) of the 1951 Convention to include gender, the following paragraph also needs to be inserted:
In the case of a person owing to a well-founded fear of persecution for reasons of gender, that persecution shall include, but not be limited to, rape, genital mutilation, forced sterilization, domestic violence, or any other persecution that can occur to a person on the basis of being of a certain sex.76Many people have said that this is not a realistic option. In light of this, I am also open to a new protocol to the 1951 Convention that specifically deals with gender-based persecution.77 However, this option is not the preferred one for me. A new protocol "would give countries a way to avoid dealing with this issue by not becoming a party to the protocol."78 By amending the 1951 Convention, all of the current state parties would be bound to recognize gender as a form of persecution. Also, any nation that is a party to the 1967 Protocol but not the 1951 Convention (like the United States) would also be bound to recognize gender, since the 1967 Protocol bound parties to certain provisions of the 1951 Convention.79
After U.N. recognition of gender, the next step would be the adoption of guidelines. Canada has a lot to be proud of in this regard. With the release of the Gender Guidelines in 1993 and its Update in 1996, Canada has proven that it has a serious commitment to the recognition of gender in refugee cases. The United States and Australia has since followed suit in adopting similar guidelines. But the key to having these guidelines is how they are implemented. Canada requires the IRB to consider the guidelines and to be prepared to explain negative decisions. The United States does not make the same requirement of its 179 immigration judges nor the Board of Immigration Appeals.80
The final step would be to codify the guidelines that are in place. This would require Canada to amend its Immigration Act to add the new category of persecution. In the United States, Representative Carolyn Maloney has introduced a bill into the United States Congress "to require the Attorney General to promulgate regulations relating to gender-related persecution, including female genital mutilation, for use in determining an alien's eligibility for asylum or withholding of deportation."81 That bill, unfortunately will die in committee as U.S. Congressional races get into full gear. I am working with Mrs. Maloney's office to introduce a stronger bill when the new Congress meets in January that would add a new category of persecution to the U.S. Immigration and Nationality Act. I would strongly advise the government of Canada to seriously consider adding this new form of persecution to the definition of persecution in the Immigration Act.
I would recommend that Canada amend the Immigration Act with the following language in § 2(1) (my changes are in italics):
"Convention refugee" means a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group, political, or genderThis amendment to the Immigration Act's definition section82 spells out in very clear and detailed language what a new category of persecution would entail. Also note that I am using a variation of the language that I suggest in amending the 1951 Convention.83 This language is also consistent with the Federal Court of Appeals decision in Cheung.* * * * *
"persecution by gender" means a well-founded fear of persecution because of, but not limited to, rape, genital mutilation, forced sterilisation, domestic violence, or any other persecution that can occur to a person on the basis of being of a certain sex.
Mrs. Mawani has stated that "Canada . . . has one
of the finest refugee determination systems in the world."84
I would go even further to say that Canada is the envy of the Western world
when it comes to their refugee determination system. Canada can be
proud that they have been the world leader in their recognition of gender-based
persecution. But, Canada also has a responsibility to advise other
governments and the United Nations to follow their lead. Canada is
the model that all nations must follow in the recognition of gender-based
persecution and other western nations can learn from their success.
The Gender Guidelines are now five years old and they work. Their
benefit is not only to the women that they protect within Canadian borders,
but to Canada's leadership worldwide.
1. Gregory A. Kelson, "Granting Political Asylum to Potential Victims of Female Circumcision," 3 Mich. J. Gender & L. 257 (1995).
2. In the matter of Khadra Hassan Farah et al., T93-12198, T93-12199, T93-12197 (Immigration and Refugee Board (Refugee Division) 10 May 1994).
3. Immigration and Refugee Board of Canada, Women Refugee Claimants Fearing Gender-Related Persecution [hereinafter Gender Guidelines].
4. See Kelson, supra note 1, at 282-97.
6. Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593, 635 (quoting Canada (Attorney-General) v. Ward, [1993] 103 D.L.R.4th 1).
7. Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, ¶ 51.
9. Convention Relating to the Status of Refugees, adopted 28 July 1951, reprinted in International Human Rights Instruments of the United Nations 1948-1982 19 (UNIFO Publishers, Ltd. 1983) [hereinafter 1951 Convention].
10. Protocol Relating to the Status of Refugees, adopted 16 December 1966, reprinted in International Human Rights Instruments of the United Nations 1948-1982 101 (UNIFO Publishers, Ltd. 1983) [hereinafter 1967 Protocol].
11. Under the 1951 Convention, the five enumerated forms of persecution are race, religion, nationality, membership of a particular social group, or political opinion. See 1951 Convention at Art. I(A)(2).
12. See, e.g., Gregory A. Kelson, "Gender-Based Persecution and Political Asylum: The International Debate for Equality Begins," 6 Tex. J. Women & L. 181 (1997).
13. Nada's real name has never been published at the request of her lawyer "because of fears of reprisal against her parents, who are still in Saudi Arabia." Clyde H. Farnsworth, "Anti-Woman Bias May Bring Asylum," N.Y. Times, 2 February 1993, at A8.
14. Jessica Neuwirth, "A Test of Canada's Gender Equality," The Christian Science Monitor, 18 November 1992, at 18.
19. Barry Brown, "Women Fleeing Persecution Will Be Eligible for Refugee Status in Canada," Buff. News, 1 February 1993, at 6.
20. Jennifer Bingham Hull, "Battered, Raped and Veiled; The New Sanctuary Seekers; Women Increasingly Are Asking for Asylum from Gender-Based Abuse, Forcing the U.S. to Re-examine Its Immigration Policy," L.A. Times Mag., 20 November 1994, at 26.
21. See Julie Wheelwright, "One Giant Step for Women in Search of Asylum," Guardian, 22 March 1993, at 11. The immigration minister's order only granted Nada permanent residency; he did not overrule the Immigration and Refugee Board's denial of refugee status for Nada. See id.
22. Immigration Act, ch. 49, § 55(2), 1992 S.C. 1452 (Can.).
23. Nurjehan Mawani, "Introduction to the Immigration and Refugee Board Guidelines on Gender-Related Persecution," 5 Int'l. J. Refugee L. 240, 240 (1993).
27. See Immigration and Refugee Board of Canada, News Release, 9 March 1993.
28. Gender Guidelines, supra note 3 at 1.
30. Nurjehan Mawani, Remarks to the U.S. Immigration Judges Conference, 10 June 1997, New Orleans, Louisiana [hereinafter Mawani U.S. Remarks].
33. Clyde H. Farnsworth, "Canada Gives Somali Mother Refugee Status," N.Y. Times, 20 July 1994, at A14.
34. Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593.
35. Canada (Attorney-General) v. Ward, [1993] 103 D.L.R.4th 1.
36. Mawani U.S. Remarks, supra note 34.
37. In the matter of Khadra Hassan Farah et al., T93-12198, T93-12199, T93-12197 (Immigration and Refugee Board (Refugee Division) 10 May 1994), at 2.
39. Although the opinion sent to me by the Immigration and Refugee Board deleted the names of Ms. Farah, her children, and her ex-husband, Ms. Farah and her daughter, Hodan, have been identified by the press. See, e.g., Jacquie Miller, "Stopping the Torture; Refugee Board Lets Somali Stay, Sparing Her Daughter Mutilation Ritual," Ottawa Citizen, 15 July 1994, at A1. The names of her ex-husband and sons have never been reported and are unknown to me to this day.
40. Farah at 2. Ms. Farah's oldest son was taken out of their home by her husband in 1983, when he was only a year old. Ms. Farah later told the IRB that her husband did this as "an act of retribution against her after she asked for a divorce." Id. In 1992,
he took this son from the home of [Ms. Farah's] grandmother in Burao where he had been living for some time. [The husband] has since forbidden the boy any contact with his grandmother and [Ms. Farah] has not heard from her son, now 12, since his abduction over two years ago.Id.
hon41. Ms. Farah testified that her marriage was very abusive:
[t]here were frequent arguments about her desire to be more independent. After three years of marriage she asked for a divorce but her parents were opposed to it and her husband began to verbally and physically abuse her. She testified that he drank excessively and repeatedly beat her and their daughter . . .Id. The opinion also noted that Ms. Farah had three siblings and two cousins who were already granted political asylum in Canada and living in Toronto. Id.
45. Ms. Farah underwent infibulation, the most severe of the three circumcision operations. See id. at 9-10.
47. Ms. Farah testified that she feared losing custody of her daughter if she was deported. Since Ms. Farah was divorced from her husband, under Islamic Law he has complete custody of their children and he can prevent them from maintaining contact with the mother. See id. at 3. Ms. Farah's ex-husband had previously abducted their oldest son and prevented him from contacting her, and therefore she had a realistic basis to fear that if her husband obtained custody of Hodan, he would prevent contact between them as well. Id. at 2. If Ms. Farah lost custody of Hodan, she testified that: "she would be powerless to prevent the custom of female genital mutilation . . . widely practised in Somalia." Id. at 3.
48. The panel went on to say that they were "satisfied that the authorities in Somalia will not protect [Hodan] from the physical and emotional ravages of FGM, given the evidence of its widespread practice in that country." Id. at 11.
49. United Nations Convention on the Rights of the Child, adopted Nov. 20, 1989, 28 I.L.M. 1456 (1989) [hereinafter Child Convention]. The Convention was adopted, without a vote, by the U.N. General Assembly on 20 November 1989. Since then over 177 states, including Canada, have signed or ratified this Convention.
50. Article 19 states in part:
States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical and mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.Child Convention, at art. 19(1), 28 I.L.M. at 1463.
51. Article 24 states in part:
1. States Parties recognize the right of the child to the enjoyment of the highest attainable standards of health and to facilities for the treatment of illnesses and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.Id. at art. 24(1), (3), 28 I.L.M. at 1465-66.* * *
3. States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.
52. Article 37 states in part:
States Parties shall ensure that:Id. at art 37(a), 28 I.L.M. at 1469-70.a) no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment.
53. Farah, supra note 35, at 11.
55. Ward further clarifies this point:
The meaning assigned to "Particular social group" in the [Immigration] Act should take into account the general underlying themes of the defence of human rights and anti-discrimination that form the basis for the international refugee protection initiative. The tests proposed in Mayers [v. Canada (Minister of Employment and Immigration), [1992] 97 D.L.R.4th 729], Cheung [v. Canada (Minister of Employment and Immigration), [1993] 102 D.L.R.4th 214], and Matter of Acosta, [19 I. & N. Dec. 211 (BIA 1985),] provide a good working rule to achieve this result. They identify three possible categories:Ward, 103 D.L.R.4th at 33-34.(1) groups defined by an innate or unchangeable characteristic;
(2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and
(3) groups associated by a former voluntary status, unalterable due to its historical permanence.
The first category would embrace individuals fearing persecution on such bases as gender, linguistic background and sexual orientation, while the second would encompass, for example, human rights activists. The third branch is included more because of historical intentions, although it is also relevant to the anti-discrimination influences, in that one's past is an immutable part of the person.
56. Farah, supra note 57, at 11. The Immigration and Refugee Board also granted political asylum to Ms. Farah as a member of a particular social group, namely women. The Board found that "[a]s a divorced mother under the jurisdiction of Sharia law [Ms. Farah's] rights as a parent and her right to personal security are not upheld as the international human rights instruments require." Id. at 7. Additionally, the IRB granted political asylum to Ms. Farah's son, determining that his "being forcibly removed from the care and nurture of his mother" under Sharia law by his father constituted persecution. Id. at 11. The panel further determined that the Ms. Farah's ex-husband "would exercise his prerogative under Sharia law to take custody of his son and deny him access to his mother, the only custodial parent with whom he has formed an enduring bond." Id. Citing Articles 3, 9 and 12 of the Child Convention, the panel found that the "best interests of the child," in this case the son, would not be considered by his father because of his violent nature. The panel, citing Ward, found that based on the son's "innate or unchangeable characteristic," and the fact that he was below the age of majority (he was seven at the time of the hearing), his particular social group was "minors."
57. Mawani U.S. Remarks, supra note 29.
58. Department of Justice, Office of International Affairs, Considerations For Asylum Officers Adjudicating Asylum Claims From Women, 26 May 1995, at 1 (memo from Phyllis Coven, Office of International Affairs to All INS Asylum Office/rs and HQASM Coordinators) (hereinafter American Guidelines).
61. For a detailed analysis on how the Gender Guidelines can be used under American Asylum law, see Kelson, supra note 1, at 282-97. See also, Kristine M. Fox, Note, "Gender Persecution: Canadian Guidelines Offer A Model for Refugee Determination in the United States," 11 Ariz. J. Int'l. & Comp. L. 117 (1994) (suggesting that the United States follow Canada's lead in adopting similar guidelines to protect women refugee claimants).
62. Minister for Immigration and Multicultural Affairs, Media Release, Gender Guidelines for Refugee Decision-makers, 15 July 1997 (visited 9 May 1998) <http://www.immi.gov.au/minrel/R96034.htm>.
66. Office of the United Nations High Commissioner for Refugees, Guidelines on the Protection of Refugee Women (Geneva: UNHCR, 1991), at ¶¶ 54-56.
73. Stephanie Nebehay, "Sexual Violence Entitles Women to Refugee Status," Reuters North American Wire, 23 February 1996, available in LEXIS, News Library, ARCNWS file.
74. Nurjehan Mawani, "Introduction to the Immigration and Refugee Board Guidelines on Gender-Related Persecution," 5 Int'l J. Refugee L. 240, 241-42 (1993).
76. Kelson, supra note 12, at 211-12 (proposed language for the 1951 Convention).
77. See Gregory A. Kelson, Female Circumcision in the Modern Age: Should Female Circumcision Now Be Considered Grounds for Asylum in the United States?, 4 Buff. Hum. Rts. L. Rev. 185, 208 (forthcoming 1998).
79. See, e.g., INS v. Doherty, 504 U.S. 314, 332 n.2 (1992) (Scalia, J., concurring) ("The United States was not a signatory to the 1954 Convention, but agreed to comply with certain provisions . . . in 1968 [when it acceded to the United Nations Protocol Relating to the Status of Refugees]").
80. Interestingly, in a conversation that I had with Layli Miller Bashir, who was one of the co-counsel in the Fauziya Kasinga case, in which a woman facing female genital mutilation was granted asylum in the United States, she pointed out to me that the U.S. Gender Guidelines should not be considered "guidelines" because they are not as binding as the Canadian guidelines are. They are just "considerations" for asylum adjudicators to use.
81. H.R. 825, 105th Cong., 1st Sess. (1997).
82. Immigration Act, R.S.C., ch. I-2, § 2(1) (1985) (Can.).
83. See Kelson, supra note 12, at 211-12 for the exact language I recommend for amending the 1951 Convention.
84. Nurjehan Mawani, Remarks to the Canadian Bar Association, 1997 Immigration and Refugee Law Conference, 1 March 1997.