Feminist Legal Studies Queen's

Feminist Legal Studies Queen's

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Dr. Sule Tomkinson

Topic: Knocking on refugee law’s door: persecution claims based on gender and sexual orientation

Abstract: Immigration and Refugee Board is Canada’s largest administrative tribunal that makes decisions in immigration and refugee matters. Public officials at its Refugee Protection Division are tasked to hear, investigate and determine refugee claims on the basis of well-founded fear of persecution based on “race, religion, nationality, membership in a particular social group or political opinion” (The 1951 Refugee Convention). Gender and sexual orientation are not among the grounds for refugee status listed in the Convention. In 1993, the Supreme Court of Canada recognized the right to asylum on these grounds (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689).

Feminist legal scholars and refugee advocates have long emphasized the problems and special issues these two types of refugee claimants encounter during the determination of their cases. However, this body of knowledge is restricted to philosophical, statutory, and doctrinal analyses. Adopting a sociolegal perspective, this presentation will draw from 18 months of ethnographic fieldwork and a variety of sources (direct observation of 50 private refugee hearings, 30 in-depth interviews with implicated actors and document analysis of written decisions and training material).

A governance framework shifts from questions about the outcome of the refugee decision to questions about how the determination process unfolds. The focus on the entire process with the refugee hearing placed at its core, allows a close look at the differential characteristics of the decision-makers, claimants and their counsels. Hearing room is a legal site where multiple state and non-actors present facts and arguments play part in joint exchanges and outcomes. Owing to the interdependence between these actors; the hearing room is where they exchange resources, share power and administrative responsibility. In the hearing room decision-makers investigate the claim; counsels participate, intervene, lead evidence, and question the claimant to complete the evidence (or fail to); and claimants respond and defend their case. By studying what happens beyond the legal part of the hearing room and focusing on the dynamics of interaction among these actors, we can see how persecution claims based on gender and sexual orientation are made, screened, negotiated, filtered, granted or rejected.