Canada’s Asylum Policy Falls Short for Victims of Domestic Violence
In the face of the Trump Administration's decision to prevent women fleeing domestic abuse from seeking asylum in the United States, other nations, such as Canada, must take up the baton and open its borders to victims of domestic violence and their children. This will reinforce the message that the international community, comprised by parties to the United Nations Charter and the international conventions they adopt, views domestic violence as a human rights violation, not merely a personal matter.
The Inter-American Commission on Human Rights’ landmark decision in Jessica Gonzales v. United States marked the international community’s acceptance of domestic violence as a human rights violation. This case came before the Commission after Jessica Lenahan’s estranged husband, Simon Gonzales, abducted her three daughters in violation of a restraining order. Jessica repeatedly attempted to engage Colorado’s state police in enforcing the restraining order and locating her daughters. At some point, while the police were ignoring Jessica’s pleas for help, Simon Gonzales murdered their three daughters. After the United States Supreme Court held that Lenahan did not have a property interest in the enforcement of her restraining order and that police discretion was not undermined by Colorado’s mandatory arrest statute, she successfully brought her case before the Inter-American Commission on Human Rights in 2005 as the first domestic violence case against the United States for the violation her and her three daughters’ human rights.
Despite this momentous decision on an international scale, many countries do not treat domestic violence as a punishable crime or a crime at all. For example, Hungary does not consider domestic violence a serious offense under its criminal code. In West Africa, domestic violence is the most pressing safety issue for women – their greatest threat coming from their own husbands. Certain countries throughout that region, such as Ivory Coast and Liberia, have not passed legislation to give domestic violence survivors legal recourse. In Nigeria, the nation with the greatest amount of Canadian refugee-status domestic violence claims, women who attempt to turn to the police for domestic violence issues are often met with inaction or “chastised” for what is seen as a betrayal of their abuser.
Gender persecution is the most frequent reason that females seek asylum in Canada. Among the specific categories of gender persecution cited by these women, domestic violence is the most common, ahead of forced marriage, non-domestic sexual violence, and female genital mutilation. Thousands of women have successfully claimed refugee status in Canada due to domestic violence. In order for a victim of domestic violence to apply for refugee status in Canada, she must show that she cannot return to her home country due to a “well-founded fear of persecution based on race, religion, political opinion, nationality, or membership in a particular social group.” Canada recognizes persecution based on gender and sexual orientation as potentially warranting asylum.  Starting in 2014 with the United States’ Board of Immigration Appeals decision in the Matter of A-R-C-G , female victims of domestic violence have had increased success seeking asylum in the United States. However, progress in this area for victims of domestic violence has been halted under the Trump Administration. Former Attorney General Jeff Sessions has characterized domestic violence as “private criminal activity,” as opposed to “persecution based on fundamental things like their religion or nationality,” and characterizing the latter as the true purpose of asylum.
Establishing oneself as a member of a persecuted social group is more easily satisfied in Canada than in the United States, since 1995 when the Federal Court of Canada decided in Narvaez v Canada (Minister of Citizenship and Immigration),  2 FCR 55 that women subjected to domestic violence qualify as a social group as it pertains to asylum. However, while thousands of women have successfully claimed refugee status in Canada due to domestic violence, women seeking asylum on the basis of domestic violence still face significant challenges in proving that returning to their home country will present a significant risk to their safety. Unless a nation is “in a complete breakdown,” there is a rebuttable presumption that the nation can protect its citizens. It is the responsibility of the woman seeking asylum to show that the state is unable or unwilling to offer protection. Specific instances where the state has failed to protect victims are not seen as indicative of a larger failure to offer protection to citizens unless these instances constitute a pattern of a nation’s unwillingness or inability to protect its citizens. Additionally, the burden of proof to show protection is higher for claimants in more democratic states. “The more democratic the state’s institutions, the greater the onus on the claimant to show he or she has exhausted all courses of action available.”
Advocates for women and refugees have called for reform to Canada’s requirements for asylum as it pertains to women fleeing domestic violence. While Canada’s acceptance of asylum-seekers is at its highest in almost three decades, victims of domestic violence still face significant hurdles in establishing that the nation from which they are fleeing is incapable or unwilling to provide protection from the severe threat they face.
Consider Jamila Bibi, who was deported from Canada back to Pakistan in 2011. Despite the fact that Bibi was incarcerated and tortured after falsely being accused of adultery, her refugee claim was denied by judges who found that Bibi had not presented enough evidence to establish a threat to her life or an inability of the state to protect her. Bibi is still facing criminal charges for adultery in Pakistan, and her lawyers have expressed fear that Bibi could be the victim of an “honour killing” on return to Pakistan.
For women like Bibi, the burden of proof is far too difficult to satisfy. In light of the Trump Administration’s stance on domestic violence victims seeking asylum, an even stronger incentive exists for Canada to reform its immigration policies as it pertains to women fleeing domestic violence. In 2015, when Prime Minister Trudeau welcomed Syrian refugees to Canada he spoke with excitement of the opportunity to show “the world how to open our hearts and welcome in people who are fleeing extraordinarily difficult situations.” Trudeau’s remarks have remarkable resonance today. In 2019, Canada has another opportunity to welcome vulnerable people fleeing life-threatening violence and send a message to the United States and the rest of the world that violence against women is an affront to humanity and cannot be tolerated.
Stephanie Ali is a Volume XLII staff writer at the Fordham International Law Journal.
Katherine Boy Skipsey is a Volume XLII staff writer at the Fordham International Law Journal.
This post is a student blog post and in no way represents the views of the Fordham International Law Journal.
 Secretary-general examines 'meaning of international community' in address to dpi/ngo conference, UNITED NATIONS, SG/SM/7133, 15 Sept. 1999, https://www.un.org/press/en/1999/19990915.sgsm7133.doc.html
 Paola Garcia Rey, Domestic Violence as a Human Rights Violation (March 14, 2011), https://www.aclu.org/blog/womens-rights/violence-against-women/domestic-violence-human-rights-violation.
 Town of Castle Rock v. Gonzales, 545 U.S. 748, 768, 760 (2005)
 Private Proceeding RPD File No. TB0-05803 TB0-05804 TB0-14598 TB0-14599, [June 22, 2011] Immigration and Refugee Board of Canada ¶ 32 (Can. Ont.), https://www.canlii.org/en/ca/irb/doc/2011/2011canlii99020/2011canlii99020.pdf.
 Tara Carman & Anita Elash, Gender persecution the top reason women seek asylum in Canada, CBC NEWS (Feb 07, 2018, 4:00 AM ET), https://www.cbc.ca/news/canada/asylum-seekers-data-gender-persecution-1.4506245.
 Government of Canada, https://www.canada.ca/en/immigration-refugees-citizenship/services/refugees/help-outside-canada.html (last visited Apr. 20, 2019).
 Julia Preston, Trump Administration Wants to Shut Door on Abused Women, POLITICO (April 17, 2018),
 Xiao v. Canada (Minister of Citizenship and Immigration),  F.C.J. No. 349; 2001 FCT 195, Canada: Federal Court, 26 March 2001, https://www.refworld.org/cases,CAN_FC,4039f6d14.html [accessed 19 April 2019]
 Carma & Elash, supra note 6.
 Lipinski, supra note 8.
 Private Proceeding, supra note 2, ¶ 24 (protection must be adequate, not perfect).
 Id. at ¶ 20.
 Kawar, supra note 1.
 Tara Carman, Canada's acceptance rate of asylum seekers is the highest in 27 years — here's why, CBC NEWS (Feb 07, 2018, 4:00 AM ET), https://www.cbc.ca/news/canada/asylum-seekers-overview-data-1.4503825.
 Kawar, supra note 1.
 Danger to Jamila Bibi of Saskatoon in Pakistan real: journalist Bina Shah, CBC NEWS (last updated Sept. 17, 2014), https://www.cbc.ca/news/canada/saskatoon/danger-to-jamila-bibi-of-saskatoon-in-pakistan-real-journalist-bina-shah-1.2767549.
 PM Trudeau Welcomes Syrian Refugees to Canada, BBC (Dec. 11, 2015), https://www.bbc.com/news/av/world-us-canada-35075181/pm-trudeau-welcomes-syrian-refugees-to-canada.