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Federal Court overturns refugee decision for inappropriate application of Gender Guidelines

The Gender Guidelines were established by the Immigration and Refugee Board, in recognition  that women asylum claimants fearing gender-related persecution face specific  problems at refugee hearings. The Board introduced the Guidelines  as to how individual members should conduct claims to ensure that evidence is adduced and evaluated with sensitivity and to avoid re-traumatizing claimants. The Guidelines set out recommended accommodations for such situations, including allowing testimony to be conducted outside the hearing room or in writing.

In the decision of Olah v. Canada, 2019 FC 401, the applicants (husband, wife and 4 children) were Hungarian citizens who sought refugee protection on the basis of their Roma ethnicity. They alleged they had suffered discrimination, harassment, threats and physical and sexual violence as Romas. Importantly, the Refugee Protection Division drew negative inferences as to the credibility of a key incident in which the wife was allegedly raped by four members of the Hungarian Guard in front of one of her children. While the wife was reluctant to testify on the alleged rape in front of her children, she had expressed her willingness to do so. The tribunal relied on the Gender Guidelines to justify skipping questioning on the alleged rape and rejected the claim because it found that the claimants had not met the onus of proving they face persecution and they had not rebutted the presumption of state protection.

The federal court held that given the tribunal’s reliance on the Gender Guidelines to justify not examining the wife, the tribunal should have accepted the wife’s written testimony. Instead, the tribunal maintained concerns that went to the core of the credibility of the wife’s evidence, in particular whether the rape had occurred or was racially motivated.

By skipping questioning on the alleged rape, the tribunal had denied the wife the opportunity to address the tribunal’s credibility concerns relating to the incident. The tribunal further went on to note the lack of objective evidence as to the rape in the form of police or medical records, suggesting the member did not believe the rape had even occurred.

The federal court held that without the wife’s oral testimony as to the alleged rape and because the tribunal had not accepted the wife’s testimony, the member was able to conclude that ‘there is no evidence that the rape was racially motivated’ and that it was ‘an isolated incident.’ This completely neutralized a key element of the claimants’ narrative” (at para. 35).

The Federal Court overturned the tribunal’s decision and discussed the purpose of the Gender Guidelines as follows:

36      The Gender Guidelines exist to help ensure that relevant evidence is adduced and evaluated with due sensitivity to those claiming to be victims of sexual violence and other forms of gender-related persecution. It does such claimants no favours, and undermines the integrity of the refugee determination process, simply to seal off such allegations from any examination, as this member did – especially when the decision-maker harbours concerns about the credibility of those allegations.

And in paragraph 39, the Court notes:

39      Substance must prevail over form when determining whether the Gender Guidelines have been complied with (Keleta at para 15). It is not sufficient to uphold a decision for the decision-maker simply to have stated that the guidelines have been applied if the reasons or the conduct of the hearing suggests that they have not been followed properly. In my view, despite instructing herself regarding the Gender Guidelines at the outset of her reasons, the member failed to apply them properly. Far from facilitating the presentation and evaluation of evidence in a manner sensitive to the specific circumstances of a woman claiming to be the victim of sexual violence, the member’s approach stymied the presentation of the refugee claim. In short, the member’s reliance on the Gender Guidelines was unreasonable, leading to a decision that lacks justification, transparency and intelligibility.

The matter was remitted to a differently constituted panel for re-determination.

Link to read the full decision in Canliihttps://www.canlii.org/en/ca/fct/doc/2019/2019fc401/2019fc401.html?searchUrlHash=AAAAAQALb2xhaCB3ZW5uaWUAAAAAAQ&resultIndex=1

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