The UN recognizes that the general approach to refugee claims from men’s prospective would be wrong and that women, homosexuals and also men, if their claim has to be seen from a gender prospective, deserve to be assessed with the awareness of possible persecution because of sex or gender.
Gender and sex are different. Gender is an interconnection between women and men based on social norms, traditional distinguishing of different roles of a male and female, whereas sex is a biological entity.
Members of the Panel in Refugee Division are guided by policies established to recognize gender and sex related claims. Legally, a refugee definition does not specify gender as basis for a claim, therefore not any man or a woman can claim for refugee protection based on their belongings to a particular sex. However, a member of the panel must be sensitive to a claim with a gender related component. For example, cases of domestic abuse or homosexual persecution fall under the definition of belongings to a “particular social group” and bearing a component of gender – related claim. It is crucial for a panel to understand those types of cases with an utmost sensitivity. For example, I had a case where a woman was sexually mistreated by her husband in a way that it was virtually impossible for her to testify at oral hearing where a male judge (adjudicator) was hearing her case. She was shy to the extreme and was unable to deliver her story. I, as counsel, reminded the adjudicator that he had to apply policies adopted by the Refugee Division with respect to gender-based cases, as he was insisting that “the Panel had heard everything and nothing would be new, if she revealed the details of the sexual assault”. He was wrong in pressing my client and I objected to that approach. It has to be noted that everything is recorded at the hearing and subject to further appeal at a higher tribunal. What was the solution in that case? The policies allow to accept into evidence not just the oral testimony of the claimant but to consider their stories written in the basis of claim (BOC) form. So, my client described her story in detail, and had additional supporting documentation from the police. Therefore I asked the judicator to consider sensitivity of the subject and that the client was hesitant to reveal the story orally because the judicator was a man, as the client was traditionally raised as a woman who wasn’t dealing with discussing things with men openly. Moreover the events occurred in an Islamic country; nevertheless her claim seemed to be genuine by her overall behaviour at the hearing. The client was consistent with her testimony on related events, there were no contradictions in either written or oral testimonies, so I submitted everything to the judicator to consider and find that my client was plausible and reliable as a refugee claimant.
In other cases an experienced counsel may also bring alternative evidence than that of the claimant’s oral testimony such as bringing witnesses, or expert evidence in the absence of witnesses. You as counsel can also insist that because your client doesn’t feel comfortable answering questions asked by judicator or refugee protection officer, that they answer your questions first. This is why the role of counsel is important in these types of hearings.
Samples of gender-related persecution does not have to be just sexual violence at home, but also includes dowry related violence, female genital mutilation, and trafficking, because these acts of violence inflict not only severe physical pain but are very mentally harmful. Therefore, they may constitute persecution.
