CEDAW Committee declares domestic violence asylum communication inadmissible (S.O. v. Canada)

S.O. claimed she was subjected to domestic violence in Mexico in 2008-2009 and that police took no action to protect her each time she reported the violence. She later left Mexico, when her lawyer told her she could not obtain protection in Mexico. After S.O. left, her abusive partner contacted her family and friends to find out where S.O. was and assaulted her mother when she refused to disclose S.O.’s whereabouts.

In 2011, S.O. applied for refugee protection in Canada on the grounds that she would face a real, personal and foreseeable risk of serious forms of gender-based violence, if returned to Mexico. Canada undertook a pre-removal risk assessment, a procedure used when an applicant has applied for refugee protection previously.

In December 2012, Canada rejected S.O.’s application. It did not dispute that S.O. was a victim of domestic violence and had sought protection from Mexican authorities. However, it concluded that she had a reasonable internal flight alternative within Mexico and had failed to show that she was unable to live apart from her abusive former partner in another part of the country.

In January 2013, S.O. applied to the Federal Court for leave to seek judicial review of the decision, claiming that an internal flight alternative was not an aspect of state protection. She also filed a motion to stay her removal, while the judicial review was pending. In February 2013, the Federal Court dismissed the motion to stay the removal, concluding that the finding of an internal flight alternative was within the spectrum of possible conclusions, in light of the facts and law in the case. In June 2013, the Court dismissed the application for leave to seek judicial review without reasons.

In February 2013, S.O. submitted an individual communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee). She claimed that her deportation to Mexico would constitute a violation by Canada of articles 1 to 3 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), read in conjunction with the Committee’s General Recommendation No. 19. Among other things, S.O. claimed that: she would be subjected to domestic violence, if deported; Mexican authorities had previously failed to protect her against such violence; and her claim for protection was denied based on the erroneous assessment that protection for gender-based violence victims is available if she relocated to another part of Mexico.

In March 2013, the Committee granted S.O’s request for interim measures and requested the State Party not to deport her while the case was pending.

State Party’s observations on admissibility

The State Party contested the admissibility of the communication of three grounds.

Firstly, it claimed that S.O. had failed to exhaust all available domestic remedies, as required by article 4(1) of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women. Specifically, it noted that S.O. had failed to apply for permanent residence on humanitarian and compassionate grounds.

Secondly, it claimed that CEDAW does not contain an obligation of non-refoulement and disputed the Committee’s interpretation of CEDAW in M.N.N. v. Denmark to the effect that this obligation can be included in the treaty. It therefore submitted that S.O.’s claim that Canada has an obligation of non-refoulement is incompatible with CEDAW, pursuant to article 4(2)(b) of the Protocol.

Thirdly, it claimed that the communication was manifestly ill-founded or S.O. had not sufficiently substantiated her claim that she would face risk of torture or risk to life, if returned to Mexico.

Committee’s decision on admissibility

The Committee determined that S.O. had failed to sufficiently substantiate her claim and declared the communication inadmissible under article 4(2)(c) of the Protocol.

Sufficiently substantiate claim

The Committee determined that S.O. had failed to sufficiently substantiate her claim that her removal from Canada to Mexico would expose her to a real, personal and foreseeable risk of serious forms of gender-based violence and therefore violate articles 1 to 2 of CEDAW, read with General Recommendation No. 19. It explained that S.O. had not provided sufficient information to show, for the purposes of admissibility:

  • that she would face a real, personal and foreseeable risk of serious forms of gender-based violence, if deported to Mexico
  • why she could not relocate within Mexico, if she had to leave her home city to avoid further violence by her former partner
  • what remedies she pursued in Mexico after unsuccessfully filing complaints with the police.

The Committee further determined that S.O. had not explained why and how she considers the State Party violated her rights under article 3 of CEDAW.

Although finding the communication inadmissible, the Committee also made comments in respect of two other inadmissibility grounds.

S.O. had exhausted domestic remedies

The Committee concluded that S.O. had exhausted all available domestic remedies when she sought a stay of deportation and judicial review of the negative pre-removal risk assessment before the Federal Court. While noting the possibility of applying for permanent residence on humanitarian and compassionate grounds, the Committee concluded that it was not necessary to do so to satisfy the exhaustion requirement, as doing so would not halt S.O.’s deportation.

The complaint was compatible with, and covered by, CEDAW

The Committee rejected the State Party’s argument that CEDAW does not contain an obligation of non-refoulement. It stressed that, under article 2(d), States Parties must refrain from discriminating against women and ensure public authorities and institutions act accordingly. Recalling it jurisprudence, it further stressed that article 2(d) requires States Parties to protect women against a real, personal and foreseeable risk of serious forms of gender-based violence, irrespective of whether it would occur outside territorial boundaries. Additionally, the Committee recalled that gender-based violence is a form of discrimination against women. However, it affirmed that what amounts to serious forms of gender-based violence triggering the protection afforded under article 2(d) depends on the circumstances of each case and needs to be determined by it on a case-by-case basis at the merits stage.

Communication No. 49/2013, UN Doc. CEDAW/C/59/D/49/2013 (2014)

Decision

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