Taking It Personally: Delimiting Gender-Based Refugee Claims Using the Complementary Protection Provision in Canada

(2014) 26(2) Canadian Journal of Women and the Law

Ottawa Faculty of Law Working Paper No. 2014-10

36 Pages Posted: 24 Jun 2014 Last revised: 9 Jul 2014

See all articles by Jamie Liew

Jamie Liew

University of Ottawa - Common Law Section

Date Written: September 1, 2013

Abstract

Random violence. General criminal risk. Decision makers evaluating refugee claims are characterizing violence against women in this manner. The reduction of gendered violence, leading to the denial of refugee claims, occurs under the covert operation of Canada’s consolidated refugee definition.

Canada has received accolades for recognizing gender-related persecution. Since this recognition, Canada consolidated its refugee definition, legislating a “complementary protection provision” in the Immigration and Refugee Protection Act (IRPA). Prior to 2002, risk assessments done just prior to the removal of persons asked whether persons would be returned to torture or cruel and unusual punishment. In 2002, this assessment was included in the refugee determination process. There has been little evaluation of this provision since then.

The paper examines the performative functions of Canada’s complementary protection and finds the provision delimits gender-related claims in three ways. First, it does not fill the gaps left by the enumerated grounds system. Second, the provision encourages the production of harmful discourse on violence against women. Finally, it encourages decision makers to conflate the separate analyses (enumerated grounds and the complementary protection schemes), erroneously allowing factors such as the universality of oppression or violence to erode the enumerated grounds regime.

Keywords: refugee, gender-based, gender-related, complementary protection, section 97, IRPA, gender, violence against women

Suggested Citation

Liew, Jamie, Taking It Personally: Delimiting Gender-Based Refugee Claims Using the Complementary Protection Provision in Canada (September 1, 2013). (2014) 26(2) Canadian Journal of Women and the Law; Ottawa Faculty of Law Working Paper No. 2014-10. Available at SSRN: https://ssrn.com/abstract=2458080

Jamie Liew (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

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