Submission ID 118587
| Issue/Objective | Female genital mutilation (FGM) is recognized by both the UNHCR and the Government of Canada as a legitimate ground for a well-founded fear of persecution. Despite this recognition, the rate of asylum claim acceptance for FGM-based claims in Canada between 2013 and 2021 remains significantly lower (47%) than for other forms of gender-based violence (GBV) (70%). Nigeria, which accounts for the highest number of GBV-related asylum claims in Canada in the same period, demonstrates a comparatively lower recognition rate than other countries of origin. An analysis of recognition rate variation in 2024 revealed considerable discrepancies among Refugee Protection Division (RPD) commissioners, with individual recognition rates deviating from predicted rates by as much as +29.3 to -67.0 percentage points. Moreover, appeals to the Refugee Appeal Division (RAD) showed a notably high success rate: in 2024, nearly one-third (30.6%) of claimant-initiated appeals decided on their merits were successful. This elevated appeal success rate raises serious concerns about inconsistent decision-making at the first-instance level, with implications for the rule of law, procedural fairness, and public confidence in the integrity of Canada's refugee determination system. |
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| Methodology/Approach | This study builds on the work of S. Rehaag (2024), whose analysis of flawed reasoning in refugee determinations helped shape its research objective. Specifically, the study aims to identify and describe recurring types of flawed reasoning that the Federal Court has highlighted in its reviews of FGM-related refugee decisions involving minor Nigerian girls. Decisions related to FGM were identified using the Canadian Legal Information Institute (CanLII) database, the Federal Court's online decision portal, and the Société québécoise d'information juridique (SOQUIJ). From the 118 available Federal Court decisions, 42 cases in which the Court ruled in favor of Nigerian women and girls fearing persecution due to FGM were analyzed using QDA Miner. A search of the Canadian Legal Information Institute database yielded 37 Federal Court decisions concerning FGM, spanning from 2004 to 2024, in which the court either ordered a redetermination or granted a stay of proceedings. |
| Results | Three key determinative issues were consistently identified as leading Federal Court judges to deem refugee decisions unreasonable: credibility assessments, forward-looking risk assessments, and the application of internal flight alternatives. Notably, these same issues are addressed in the Immigration and Refugee Board's Chairperson's Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board, which was updated in October 2023. The study further found that, across these determinative issues, certain recurring forms of flawed reasoning contributed to findings of unreasonableness. These included: drawing inferences not supported by the evidence, failing to consider all relevant evidence, conducting an unreasonable analysis of the evidence, and insufficiently considering the claimant's individual circumstances. |
| Discussion/Conclusion | A key conclusion from this analysis is the critical need for competent and well-trained personnel at all levels of the Immigration and Refugee Board (IRB) to uphold public trust in the refugee determination system. Similar types of errors were observed across the Refugee Protection Division (RPD), the Refugee Appeal Division (RAD), and among immigration officers, indicating systemic challenges rather than isolated shortcomings. IRB personnel require multifaceted expertise that allows them to consider the complex interplay of factors specific to each case. In many instances, a dominant issue for one claimant can eclipse the unique circumstances of others - such as minor girls fearing FGM, whose risk is often assessed only through their parents' claims. While less frequent, the analysis also identified cases where minor girls were considered in isolation, with insufficient attention given to the broader family context and its implications for risk and protection. |
| Presenters and affiliations | Bilkis Vissandjee Université de Montréal Victoria Delisle Université de Montréal Romy Labranche Université de Montréal Laurie Martin Université de Montréal |
