The Availability of Refugee Protection in Canada For Women and Girls Who Flee Violence Directed Against Them Abroad

Uniting Voices Worldwide to Eliminate Violence Against Women 2020

A Discussion and Call to Action on the Pandemic’s Impact on Women and Girls

November 24, 2020

Speech by David Matas, an international human rights, refugee, and immigration lawyer practicing in Winnipeg, Manitoba, Canada; member of the Order of Canada; 2010 Nobel Peace Prize nominee.

In my refugee practice, I do mostly court work.  That means I see cases where claimants are refused.  The ones who are accepted usually do not end up in Court, because the Government usually does not challenge acceptances in Court.

Many of the cases I see are women and girls fleeing violence.  I can see that this happens. I can also see why it happens.

Sometimes violence against women comes from the state.  Women are targeted as an indirect way of going after the male family members.  And the state is everywhere throughout the country. 

However, more common is violence directed against women and girls by immediate family members and an absence of state protection.  Where the feared agent of persecution is an immediate family member, the typical reason why woman and girls fleeing violence are denied refugee protection is that they are told that there is an internal flight alternative.  They are told that there is somewhere else in their country to which they can go where they will be safe.

For girls from many countries, female genital mutilation is a big threat.  For adult woman, the main source of violence is spousal or sexual abuse. Those rejecting their refugee claims reason that these women and girls and the parents who want to protect the girls can go elsewhere in the country and the threatening family members will not find them – the family does not have the means or the motivation to locate them elsewhere.

This reasoning is prevalent.  But it ignores the reality which women and girls and their protective parents face when fleeing the threat of family violence. There are a couple of case in which I was involved, one involving a woman and one involving a girl, where the courts took cognizance of the problem.  But these cases are exceptions.

In the case of Melodicah Ng’aya, a woman in Kenya fled sexual abuse from her father. She came to Canada, had a child here, and made a refugee protection claim which was refused on the ground that she would be safe elsewhere in Kenya, in particular in Mombassa. When the case went to Federal Court, Mr. Justice Barnes ruled in her favour stating:

         “the potential for harm could not be so readily dismissed. … Ms. Ng’aya’s whereabouts in Mombassa would eventually become known to her father particularly if she was unable or unwilling to isolate herself totally from all of the other members of her family and past family acquaintances. Such segregation is an impossible burden to place upon a young woman looking after a baby in a challenging and unfamiliar urban setting.  The issue of personalized risk needs to be assessed against the realistic social and economic situation facing a claimant who is expected to return.”

In the case of Zahid Abbas and Kashah Zahra, a father fled Pakistan with his young disabled daughter because of violence and the threat of further violence from the family of the father who opposed his marriage because he was Shia and his wife was Sunni.  Again there was a refusal of their claims based on the internal flight alternative, that the family could escape the in-laws by going to Islamabad.  Mr. Justice Ahmed, in ruling for the father and the girl, who was nine years old at the time of the judgment, observed that the Refugee Appeal Division which had rejected the claim noted

         “that the agents of persecution would be required to learn of the Applicants’ return to Pakistan, and determine the whereabouts of the Applicants in Islamabad, a city of 1.35 million people.  However, stating the population figure of Islamabad is misleading.  Family networks and connections would facilitate an easier access to locating the Applicants without having to comb through 1.35 million people in a city.  I agree with the Applicants submission that it would be unreasonable for the Principal Applicant to cut himself off from all his family members and acquaintances.  Also, it would be unrealistic that this effort would be successful.”

I could, regrettably, give many examples of cases where women and girls fleeing persecution have been unsuccessful at every level in seeking protection in Canada.  I give the example of a couple of cases which succeeded in Court, because they point a way forward.  The Immigration and Refugee Board has gender guidelines issued by the Chair of the Board as guides in determining individual cases.  These guidelines could and should be amended to reflect the reasoning in these cases so that women and girls are not so easily denied protection in Canada on the basis that they would be safe elsewhere in their own country.

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