Human Rights Quarterly

Introduction

The de facto uniting criterion [among refugees] was the shared marginalization of the groups in their states of origin, with consequent inability to vindicate their basic human rights at home. These early refugees were not merely suffering persons, but were moreover persons whose position was fundamentally at odds with the power structure in their home state. It was the lack of a meaningful stake in the governance of their own society which distinguished them from others, and which gave legitimacy to their desire to seek protection abroad. ¹

—James Hathaway

“‘Our country,’” she will say, “throughout the greater part of its history has treated me as a slave; it has denied me education or any share in its possessions. ‘Our’ country still ceases to be mine if I marry a foreigner. ‘Our’ country denies me the means of protecting myself . . . .” “For,” the outsider will say, “in fact, as a woman, I have no country.” ²

—Virginia Woolf, Three Guineas

On March 9, 1993, Canada’s Immigration and Refugee Board (IRB) issued guidelines entitled “Women Refugee Claimants Fearing Gender-Related Persecution” ³ (hereinafter Guidelines). The purpose of the Guidelines is to provide IRB decisionmakers with a means of interpreting the legal definition of a refugee in a gender sensitive manner. The Guidelines were issued amid public outcry over several well publicized incidents regarding the plight of women who had made unsuccessful refugee claims based on gender related persecution. In the first case, a Saudi woman, known as “Nada,” defied the law of her country by refusing to wear a veil. For this transgression, she was spat upon, publicly harassed, and threatened with arrest by unofficial “religious police.” The Convention Refugee Determination Division (CRDD) ⁴ panel hearing her case castigated Nada for her effrontery:

Il lui faudrait bien, comme toutes ses compatriotes se conformer aux lois d’application générale qu’elle dénonce, et ce en toutes circonstances et non seulement, comme elle l’a fait pour étudier, travailler ou ménager les sentiments de son père qui, comme toute sa nombreuse famille, était opposé au liberalisme de sa fille la demanderesse. ⁵ [End Page 214]

Other cases involved women who fled their country of origin to escape husbands who physically or sexually abused them with impunity in countries where the criminal justice system offered no protection. The countries of origin included Trinidad, Bangladesh, Syria, Bulgaria, and Dominica. ⁶ One case concerned a Trinidadian woman named Dularie Boodlal, whose husband abused her for seventeen years by beating her, cutting her with razors and knives, and slamming her head into a car door. She fled Trinidad for Toronto in 1988, only to be followed by her husband. After being convicted eleven times in Canada of either assaulting or uttering death threats at her, he voluntarily returned to Trinidad rather than serve a jail sentence in Canada. Dularie’s husband continued to menace her via letters and phone calls, threatening to “chop her to pieces” ⁷ if she returned to Trinidad. A spokesman for Canadian Immigration justified the denial of refugee status, and the decision to deport Dularie, because Trinidad had recently passed a family violence statute so that “she can avail herself of the protection of the authorities in her own country.” ⁸

Without doubt, the Guidelines would not exist but for the concerted efforts of a coalition of feminist, human rights, refugee, and immigration activists, as well as the personal commitment and leadership of a committee of members working under the Chairperson of the IRB, Nurjehan Mawani. The content of the Guidelines reveal an indebtedness to thoughtful feminist analyses by Canadian and European authors about why and how to factor gender into refugee determinations. ⁹ Another source of inspiration included [End Page 215] a few favorable decisions in past refugee claims. In addition, an international framework within which the Guidelines could emerge had already begun to crystallize in the late 1980s through the assiduous efforts of the United Nations High Commission for Refugees (UNHCR) Executive Committee. The most prominent among these projects was the publication of Guidelines on the Protection of Refugee Women ^10...