By Kelly Goldthorpe
She arrived in Canada in April 2016. Four months later, she made a refugee claim.
She had been abducted and sexually assaulted in her home country. Her mother and aunt were harassed with threatening calls. After arriving in Canada, she didn’t reveal the sexual assault to her host family for a few months. Upon learning that it was possible to make a refugee claim, she found a lawyer, began receiving treatment with a therapist and made a refugee claim in August 2016.
When her refugee claim was heard, the decision-maker at the Immigration and Refugee Board (IRB) didn’t believe her and found her entire story “not credible” because she provided inconsistent information; she didn’t initially disclose the sexual assault; and, she delayed making a refugee claim after arriving in Canada. Her refugee claim was denied.
When the case was reviewed by a Federal Court, it was determined that the claim was denied on the basis of an ancient but discredited myth that women survivors of sexual assault will react in the same way by reporting sexual assault in a timely manner, known as the “doctrine of recent complaint”. The Federal Court said this doctrine should form no part of Canada’s immigration law. The doctrine of recent complaint was discredited decades ago because it is demonstrably false and sexist.
In a different case, a refugee claim was denied because the decision-maker did not believe that a rape victim would keep a child conceived of rape. The IRB decision-maker expected the claimant to tell her family and to produce medical documents of the rape. Because the claimant did not conform to outdated rape myths, the refugee claim was refused.
Time and time again, women who have endured traumatic experiences and escaped for a better life in Canada have had their claims denied due to outdated and sexist notions of how a survivor should act. Some of these claimants have been deported back to their home countries to face danger and violence.
The IRB of Canada is a quasi-judicial administrative tribunal. It is Canada’s largest independent administrative tribunal tasked with making decisions on immigration and refugee matters.
A refugee claim must be made pursuant to a well-founded fear of persecution due to reasons of race, religion, nationality, membership in a particular social group or political opinion. Gender; however, is not a defined ground of persecution. Under the definition of Convention refugee, a woman may be protected where she demonstrates a well-founded fear of gender-related mistreatment if she is also a member of a social group that faces persecution.
To remedy the disadvantaged position of women in the refugee process, in 1993 the IRB broke ground when it released the Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution. These Guidelines were the first of its kind in the world and led other countries to recognize the importance of devoting particular attention to protecting refugee women. The Guidelines have become an important tool in reviewing decisions of the IRB. They can be particularly relevant when the case turns on the IRB’s failure to be sensitive to women who experienced sexual violence.
The Guidelines acknowledge that women refugees “face special problems in demonstrating that their claims are credible and trustworthy” and seek to address these issues, particularly if women have had difficult and traumatic experiences. The Guidelines are supposed to educate IRB decision-makers about Rape Trauma Syndrome and the need to be “extremely sensitive” in some cases. The Guidelines also educate decision-makers about some patterns that women may exhibit as a result of violence or abuse.
Despite the Guidelines, and some of the training and resources available, there are still questionable decisions being made with respect to refugee claimants who are survivors of sexual violence and other forms of gender-based violence. The Guidelines can only be as effective insofar as decision-makers properly apply them as a tool.
Going through the refugee process requires individuals to give evidence of deeply personal and traumatic experiences. This process can be re-traumatizing for claimants, many who have suffered unimaginable hardship.
Experiences of the events that underlie claims for protection can be shaped by cultural norms or backgrounds that are not shared by IRB decision-makers. According to the Federal Court, unless cross-cultural misunderstandings are recognized and accounted for, these circumstances can jeopardize the integrity of the refugee determination process and call into question the soundness of its results.
People who experience trauma or abuse, particularly women survivors of gender-based violence, do not always receive the services or supports that they need in the refugee determination process. They do not always act the same ways after abuse. And, they should not be expected to conform to biased notions of how survivors must act like.
In light of recent IRB decisions that appear to perpetuate and apply discredited rape myths and gender biases, the IRB has indicated that is taking several immediate steps to address some of those concerns.
However, the Guidelines have not been updated since 1996. They do not reflect some of the regulatory changes to Canadian refugee law and do not include any discussion of how evidence introduced by the claimant on her mental health can intersect with the Guidelines’ procedural and substantive provisions. The social science underlying some of the Guidelines have become outdated. Our understanding of trauma and sexual violence is more developed than it was 25 years ago. For example, the Guidelines do not address the need to eliminate old discredited myths about rape such as the doctrine of recent complaint.
Ultimately, the Guidelines do not address the fundamental gap in refugee law, that gender is not a stand-alone category under which someone fearing persecution can seek protection in Canada. Can women truly be protected if gender is not a ground of persecution? Given all that we know about the world today, and the continued subjugation and persecution of women, it is time for Canada to ensure women enjoy the full protection of our refugee process.
Kelly Goldthorpe is a Board Member at YWCA Toronto and an immigration lawyer.
 Velasco Chavarro at paragraph 19.
 X (Re), 2019 CanLII 129692 (CA IRB).