CEDAW Committee declares asylum communication inadmissible (Y.C. v. Denmark)

In June 2011, Y.C., a Chinese national, sought asylum in Denmark. In support of her claim for asylum, she alleged that, if deported to China, she: faced a real, personal and foreseeable risk of further domestic violence by her former partner; and would not be able to exercise her religion freely.

In August 2011, the Danish Immigration Service rejected her asylum claim, which the Refugee Appeals Board later upheld on appeal. The Board accepted Y.C. was a victim of violence, but noted that she had not reported it or the removal of her child by her former partner to Chinese authorities. It also noted that Y.C.’s relationship with her former partner was a matter of private law and that conflict between them did not mean she would ‘necessarily risk persecution or outrages of a nature set out in section 7 (2) of the Aliens Act’. It considered it relevant that the former partner had not sought out Y.C. Additionally, it found that, although Y.C. ‘had to exercise he religion discretely, she could not be considered to be specifically and individually persecuted by the Chinese authorities on religious grounds’.

In January 2013, Y.C. submitted an individual communication to the Committee on the Elimination of Discrimination against Women. She alleged that deporting her to China would constitute a violation by Denmark of the Convention on the Elimination of All Forms of Discrimination against Women, specifically articles 1 to 3 and 5, read in conjunction with General Recommendation No. 19. Y.C. claimed that:

  • Chinese authorities would not afford her adequate protection against the real, personal and foreseeable risk of domestic violence she faced, if returned to China by Denmark, or grant her access to, or custody of, her child
  • the State Party would, by deporting her, violate her freedom of religion.

Y.C. was awaiting deportation to China when she submitted her communication to the CEDAW Committee. She made a request for interim measures under article 5 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, to stay the deportation pending the Committee’s consideration of the communication. The Committee declined her request and did not report any reasons for its decision.

State Party’s observations on admissibility

The State Party claimed that the communication was inadmissible as it was incompatible with CEDAW and manifestly ill-founded and unsubstantiated, pursuant to articles 4(2)(b) and 4(2)(c) of the Protocol, respectively. Among other things, it claimed that Y.C.:

  • sought to apply CEDAW in an extraterritorial manner
  • failed to sufficiently substantiate (for admissibility purposes) that she faced a real, personal and foreseeable risk of domestic violence, if deported
  • had not made explicit or sufficiently substantiated which CEDAW provisions would be violated, if she was deported
  • had not reported her situation to Chinese authorities or demonstrated that those authorities would not protect her adequately, if returned to China.

Committee’s decision on admissibility

The CEDAW Committee declared the communication inadmissible under article 4(2)(c) of the Optional Protocol, as both insufficiently substantiated and manifestly ill-founded. It declined to consider whether the communication was compatible with CEDAW, pursuant to article 4(2)(b) of the Protocol.

Y.C. failed to substantiate her claim sufficiently

The Committee determined that Y.C. had failed to substantiate, for the purposes of admissibility, her claim that Chinese authorities would not afford her adequate protection against violence or grant her access to, or custody of, her child. In doing so, it noted that Y.C. had not: reported her situation, including the alleged violence, to Chinese authorities; or provided an adequate explanation for her failure to seek to see, or obtain custody of, her child for several years.

Y.C.’s claim was manifestly ill-founded

In determining that the communication was manifestly ill-founded, the Committee noted that Y.C. had not provided sufficient information to support her claim of religious-based persecution and noted the State Party’s claim that Y.C. had alleged a violation of article 18 of the International Covenant on Civil and Political Rights and not CEDAW. It further noted that Y.C. had not substantiated that she was a victim of gender-based discrimination, as part of her claim that she would not be able to exercise her religious beliefs freely in China.

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

Decision

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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

CEDAW Committee declares domestic violence and child custody communication inadmissible (T.N. v. Denmark)

T.N., a U.S. citizen, married a Danish national and had two children with him. She claimed he subjected her to domestic violence while they were in Germany and told her she would not be allowed to see their children if she did not return to Denmark with him. She went to Denmark, where she claimed the violence continued. T.N. said she reported the violence to Danish police on several occasions, but that they failed to take appropriate action to protect her and her children. She alleged the violence continued to worsen and that her husband threatened that she would not see their children again, if she left him.

In 2010, T.N. took her children and went to a shelter, where they lived for a few months. The police confiscated their passports, at the request of her husband. She claimed that the same officers refused to make a report on the domestic violence or note her injuries. She was unable to file a domestic violence complaint at the police station because the officer did not speak good English. T.N. claimed there was no further follow-up by the police.

In 2010, T.N. filed for divorce. The Regional State Administration of Mid-Jutland decided the children were to reside with T.N. until a court decision or an agreement on residence was reached. In custody proceedings before the Aarhus District Court, T.N. claimed her husband was violent towards her and their children when they lived together and continued to beat the children when he spent time with him under the joint custody arrangement.

In 2011, the Court ruled in favour of T.N.’s husband and granted him full custody. It based its decision on the absence of proof of any domestic violence and the Court’s assessment that the father would provide the children a better environment in which to live because he would not prevent them from seeing T.N. In 2012, the High Court of Western Denmark upheld the decision.

In September 2011, T.N. submitted a communication to the Committee on the Elimination of Discrimination against Women, in which she claimed that she and her daughters were victims of violations by Denmark of articles 1, 2, 5 and 16 of the Convention on the Elimination of All Forms of Discrimination against Women. Specifically, she claimed that: she and her daughters were victims of discrimination on the grounds of sex, nationality and race; and the State Party had failed to protect her and her children against domestic violence, by not pursuing her abusive husband through the criminal justice system and not granting her custody of their children. She further claimed that the State Party’s police and judicial authorities are biased against female foreigners married to Danish men, evidenced in their giving credence to her husband’s version of events and disregarding her own.

In July 2012, the Committee granted T.N.’s request for interim measures under article 5 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women. Among other things, it asked the State Party to take all measures necessary to ensure: the violence was taken into account and the rights and safety of T.N. and her children were not jeopardised, in the determination of child custody and visitation rights.

State Party’s observations on admissibility

Initially, the State Party contended that the Committee should reject the communication at the registration stage and not ask it to submit observations on the unstructured and voluminous documents submitted by T.N., which it claimed did not rely on any rights in CEDAW or specify the scope of the complaint. The State Party suggested that the communication relates mainly to ongoing litigation between T.N. and her husband.

The State Party went on to challenge the admissibility of the communication on several grounds. It contended that:

  • T.N. had made unsupported claims not raised in substance before the Danish authorities and which they therefore had not had the opportunity to address. It therefore submitted that the communication should be declared inadmissible under article 4(1) of the Protocol, for failure to exhaust domestic remedies
  • it was unclear which rights, if any, under CEDAW T.N. was relying on and that the communication was therefore incompatible with CEDAW and should be declared inadmissible under article 4(2)(b) of the Protocol. It noted that T.N. had alleged violations of a number of other international instruments
  • T.N. had failed to sufficiently substantiate her claim, in accordance with article 4(2)(c), as she had put forward unclear and generally unsupported claims and not identified or explained which CEDAW rights she was relying on or identified which state acts or omissions constituted a violation of CEDAW
  • for the reasons above, the communication should be declared inadmissible under article 4(2)(d) as an abuse of the right to submit a communication.

CEDAW Committee’s decision on admissibility

The Committee determined that T.N. had failed to substantiate her claims under articles 1, 2, 5 and 16 of CEDAW and declared the communication inadmissible under article 4(2)(c) of the Protocol.

Failure to sufficiently substantiate claim

The CEDAW Committee concluded that T.N. had not sufficiently substantiated her claim that the State Party had failed to investigate her allegations of domestic violence, for the purposes of admissibility. It explained that T.N. had submitted many unstructured documents, many without full translation, and that many of her arguments were not comprehensive, lacked consistency and were unsupported by documentation. By contrast, it explained, the State Party had provided detailed information about the police investigations it had conducted.  The Committee noted T.N.’s claim that she was a victim of gender-based discrimination during the custody proceedings, but concluded that she had also failed to substantiate that claim, for the purposes of admissibility.

Although the Committee determined that the communication had not been sufficiently substantiated, it also commented on several other grounds of inadmissibility.

No failure to exhaust domestic remedies

The CEDAW Committee concluded that although T.N. submitted her individual communication while custody proceedings were still pending in Denmark, it was not precluded from considering the communication under article 4(1) of the Optional Protocol, as the High Court of Western Denmark had since rendered a final decision. It further noted that T.N. had raised violations of article 2 of CEDAW at the domestic level and that authorities had an opportunity to consider the alleged violations.

The same matter had not been examined previously

The Committee condemned T.N. for submitting a complaint to the European Court of Human Rights while her communication was pending before it. However, it ultimately determined that the same matter had not been examined under another procedure of international investigation or settlement, in accordance with article 4(2)(a) of the Optional Protocol. According to the Committee, the Court’s decision, which declared T.N.’s complaint inadmissible, was limited to procedural grounds relating to admissibility and did not provide sufficient reasoning to allow it to consider that the Court had examined the case in the manner required by article 4(2)(a) of the Protocol.

Communication was compatible with CEDAW

The Committee concluded that since T.N. had alleged violations of CEDAW (in addition to referring to rights under other international instruments), her communication was compatible with the treaty in respect of those alleged violations, pursuant to article 4(2)(b) of the Optional Protocol.

Communication No. 37/2012, UN Doc. CEDAW/C/59/D/37/2012 (2014)

Decision

CEDAW Committee declares asylum communication inadmissible (M.E.N. v. Denmark)

M.E.N., a Burundian national, claimed asylum in Denmark.  She indicated that she had fled Burundi owing to political persecution and had been ganged raped by three men before leaving the country.  She further indicated that she feared she might be subjected to rape or other forms of bodily harm, if Denmark forced her to return to Burundi. 

In April 2011, Denmark’s Immigration Service concluded that M.E.N.’s allegations were not credible and she was not at risk of persecution in Burundi.  It therefore rejected M.E.N.’s claim for asylum.  

In September 2011, the Refugee Appeals Board upheld the decision of the Immigration Service.  It concluded that M.E.N. had failed to establish that she would face a real risk of persecution in Burundi.  It based its decision, inter alia, on its view that M.E.N.’s political activities in Burundi had been of a limited nature and the absence of evidence linking the gang rape to her political activities.  The Board further concluded that the threats and harassment experienced by M.E.N. in Burundi were not of such intensity and character to justify granting her asylum in Denmark.

M.E.N. submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee) in which she claimed that her deportation to Burundi would violate articles 1, 2(c), 2(d) and 3 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).  She based her claim on the fact “that she was raped by three men in Burundi before she fled owing to political persecution by the Burundian authorities and, as a woman, could be subjected to rape or other forms of bodily harm upon her return.” 

M.E.N. was awaiting deportation from Denmark to Burundi at the time of submitting her communication to the CEDAW Committee.  Pursuant to article 5 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol) on interim measures, the CEDAW Committee asked Denmark to refrain from deporting M.E.N while it considered her communication.  The State Party agreed to suspend her deportation, pending a decision by the CEDAW Committee.

State Party’s observations on admissibility

The State Party challenged the admissibility of the communication on several grounds.   

Absence of jurisdiction and extraterritoriality  (arts. 2 and 4(2)(b))  

The State Party submitted that the CEDAW Committee lacked jurisdiction to consider the communication and that it should declare the communication inadmissible ratione loci and ratione materiae under articles 2 and 4(2)(b) of the Optional Protocol.  The State Party asserted that M.E.N.’s claims were “based not on any treatment that she will suffer at the hands of the State party, but on consequences that she may suffer if she is returned to Burundi” and that its decision to return M.E.N. to Burundi cannot trigger its responsibility under CEDAW.  The State Party further asserted: “it is responsible only for obligations vis-à-vis individuals under its jurisdiction and cannot be held responsible for discrimination in another country. Returning a person who comes to the State party simply to escape from discriminatory treatment in her own country, however objectionable that treatment may be, cannot constitute a violation of the Convention by that State party.”

Failure to exhaust domestic remedies (art 4(1))

The State Party further claimed that M.E.N. had failed to exhaust domestic remedies, as required by article 4(1) of the Optional Protocol.  According to the State Party, M.E.N. had failed to raise sex discrimination before the Immigration Service or the Refugee Appeals Board, which meant that it had not been afforded an opportunity to deal with those allegations.

Failure to substantiate claim (art 4(2)(c))

Lastly, the State Party claimed that M.E.N. had not substantiated her claims, in accordance with article 4(2)(c) of the Optional Protocol.  It asserted that M.E.N. had simply referred to articles 1, 2(c), 2(d) and 3 of CEDAW, instead of explaining which specific rights it had violated.  It also suggested that article 14 on rural women, which M.E.N. had mentioned in her communication, was not relevant in the circumstances.

CEDAW Committee’s decision on admissibility

A majority of the CEDAW Committee concluded that M.E.N. had failed to exhaust domestic remedies and declared the communication inadmissible.  A minority of the Committee declared the communication admissible and found violations of articles 2(c), 2(d) of CEDAW, read in conjunction with articles 1 and 3. 

Majority (inadmissible)

A majority of the CEDAW Committee concluded that M.E.N. had failed to exhaust domestic remedies, as required by article 4(1) of the Optional Protocol, and declared the communication inadmissible.   The majority noted that “the alleged rape was not raised as a ground per se in support of her application for asylum” and, on this basis, concluded that the State Party “clearly had no opportunity to consider her gender-based allegations, which [were] at the heart of her communication….”

While the majority decided not to address the remaining grounds of inadmissibility raised by the State Party, it did address States Parties’ responsibilities under CEDAW in situations in which a State Party extradites, deports, expels or otherwise removes an individual to a country where she claims that she would suffer a violation of her rights under CEDAW.  In doing so, the majority affirmed that the obligations in CEDAW apply to citizens and non-citizens and States Parties are “responsible for all their actions affecting human rights, regardless of whether the affected persons are in their territories.” It also rejected the State Party’s argument that CEDAW does not deal with removal to torture or other serious threats to the life and security of a person.  It reiterated that gender-based violence against women is a form of discrimination covered by article 1 of CEDAW, which can also impair or nullify women’s enjoyment of other rights, including the right to life, the freedom from torture or to cruel, inhuman or degrading treatment or punishment, the right to liberty and security of the person and the right to equal protection under the law.

The majority also clarified that CEDAW does have extraterritorial effect.  It explained:

under article 2 (d) of the Convention, States parties undertake to refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation.  This positive duty encompasses the obligation of States parties to protect women from being exposed to a real, personal and foreseeable risk of serious forms of gender-based violence, irrespective of whether such consequences would take place outside the territorial boundaries of the sending State party: if a State party takes a decision relating to a person within its jurisdiction, and the necessary and foreseeable consequence is that that person’s rights under the Convention will be violated in another jurisdiction, the State party itself may be in violation of the Convention. For example, a State party would itself be in violation of the Convention if it sent back a person to another State in circumstances in which it was foreseeable that serious gender-based violence would occur.  The foreseeability of the consequence would mean that there was a present violation by the State party, even though the consequence would not occur until later.  What amounts to serious forms of gender-based violence will depend on the circumstances of each case and would need to be determined by the Committee on a case-by-case basis at the merits stage, provided that the author had made a prima facie case before the Committee by sufficiently substantiating such allegations.

As the majority had determined that M.E.N.’s communication was inadmissible, it did not examine the extraterritorial application of CEDAW in her case.

Minority (admissible and violations)

CEDAW Committee member Šimonović issued an individual (dissenting) opinion – joined by Committee members Halperin-Kaddari, Neubauer and Pimentel – in which she declared the communication admissible and concluded that the State Party had violated articles 2(c), 2(d) of CEDAW, read in conjunction with articles 1 and 3.       

The minority concluded that M.E.N. had exhausted domestic remedies, as required by article 4(1) of the Optional Protocol.  Contrary to the view of the majority, the minority concluded that M.E.N. had raised in substance a sex discrimination claim relating to political persecution at the domestic level.  It noted that M.E.N. had raised the fact that she had been raped with the State Party and that this was sufficient for the State Party to have had an opportunity to “consider sex-based discrimination with regard to political persecution and to rape as a form of sexual violence that is recognized as a form of gender-related persecution and as a form of discrimination against women, together or separately.”  The minority took the view that M.E.N. did not need also to make explicit reference to rape as a form of discrimination against women.  It explained:

The pertinent question in the present case is whether the author raised sex-based discrimination, whether intersecting other grounds of persecution or alone, as the basis for her claim during the asylum procedure.  That the author mentioned during her asylum proceedings that she fled Burundi owing to political persecution, and that she had been raped by three men while fleeing, should be sufficient for the State party to consider rape to be a form of discrimination against women and gender-related persecution, whether alone or intersecting with alleged political persecution.  The author should not be required to make explicit reference to rape as a form of discrimination against women but to raise the substance of her claim, which is what she did.  Sexual violence and rape is universally accepted as a form of gender-based violence against women and a form of discrimination against women falling under article 1 of the Convention, as elaborated in the Committee’s general recommendation No. 19, which has clearly placed violence against women within the ambit of discrimination against women by stating that gender-based violence is a form of discrimination against women and includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty.

In addition, the minority concluded that M.E.N. had sufficiently substantiated her claim, as required by article 4(2)(c) of the Optional Protocol to CEDAW.  It explained that, “for the purposes of admissibility, the author needs to sufficiently substantiate that she has a well-founded fear of being persecuted under the 1951 Convention relating to the Status of Refugees.”  The minority Committee members took the view that M.E.N. had done this

by explaining facts relating to her political persecution as a member of the Front national de libération (FNL), the opposition party, whose members were expelled and killed; that her home town, where many FNL members lived, was bombarded by the Government of Burundi…; that she was raped by three men armed with knives while she was fleeing; and that she was unable to seek justice because [of] the attack by government forces.

The minority members also concluded that the communication was admissible under article 4(2)(b) of the Optional Protocol to CEDAW because its subject matter was compatible with CEDAW.

Finally, the minority members concurred with the majority’s view about the extraterritorial application of CEDAW and declared the communication admissible under article 2 of CEDAW. 

Šimonović, joined by the other dissenting CEDAW Committee members, concluded that the State Party had violated articles 2(c), 2(d) of CEDAW, read in conjunction with articles 1 and 3.  In doing so, they clarified that article 2(c) of CEDAW:

  • “establishes a positive duty … to ensure the effective protection of women against any act of discrimination” during the entire asylum process;
  • requires States Parties to ensure that their asylum systems have “a thorough understanding of the particular forms of persecution and human rights abuses that women and girls experience because of their sex or gender;”
  • requires States Parties to ensure “women are not discriminated against and that gender-related forms and grounds of persecution are addressed during the asylum procedure.”  

The minority members also clarified that article 2(d) of CEDAW “requires States parties to refrain from engaging in any act or practice of discrimination” during the asylum process.  In addition, they explained that articles 2(c) and 2(d) require States Parties to “put in place asylum procedural safeguards to ensure that women’s claims are properly heard and assessed.”

The minority members of the CEDAW Committee recognised that asylum seekers are required to provide relevant factual information to substantiate their claim of discrimination based on sex/gender-related persecution, but concluded that it “should not be incumbent upon the asylum seeker to use in her asylum claim words such as ‘discrimination based on sex’ and/or ‘gender-related persecution’.”  Rather, they explained, the decision maker should “ask further relevant questions and apply this information to the legal framework.”  They took the view that M.E.N. had provided relevant information to the State Party that should be sufficient for the State Party to assess her discrimination claim fully.

The minority was critical of the Refugee Appeals Board’s decision that M.E.N. would not be at risk of assault if returned to Burundi because political activities were of a limited nature.  The minority expressed concern that State Party had ignored the “fact that women are, in general, underrepresented at the high level of political parties and that women’s political activity may not always look like male political activity or may not be equally valued in the male-dominated political environment.”  It also expressed concern that the State Party had “failed to assess in a non-discriminatory manner the risk of the author’s future political persecution or gender-related persecution or whether the author could benefit from State protection, taking into account all relevant facts relating to her claim of political persecution and sexual violence….”

The minority explained that although the State Party did not dispute that M.E.N. had been gang raped at knifepoint, it did dispute that the rape constituted a ground for persecution under CEDAW or the Refugee Convention.  The minority responded:

Rape is the most notorious form of sexual violence directed against women because of their sex or gender. It constitutes a gender-related form of persecution under the Refugee Convention and sex/gender-based discrimination and violence against women under [CEDAW].  Rape is considered to be brutal when it is gang rape, such as in the present case, but was completely neglected by the State party.  Rape inflicts severe mental and physical pain and suffering and is also tearing apart social units.  For that reason, it has been acknowledged as a particularly effective tool of genocide, as a crime against humanity, as a war crime and as a human rights violation.  Rape has been used as a form of persecution by State and non-State actors and various country guidelines on refugee claims specifically list rape and fear of rape as a form of persecution [citations omitted.

Turning their attention to the facts of the communication, the minority concluded:

the State party found the gang rape perpetrated by three man armed with knives unrelated to the author’s asylum claim and ignored its links with the overarching violence and impunity created by the conflict when it occurred.  In so doing, the State party failed to adequately consider the environment surrounding the rape, including impunity for the crime.  The State party failed to recognize the rape of the author as a separate or intersecting form of gender-related persecution and sex-based discrimination.  In so doing, it failed to afford the author protection under [CEDAW] and to exercise its positive duty to protect the author from being exposed to a real, personal and foreseeable risk of serious forms of gender-based violence if returned to Burundi.

Communication No. 35/2011, UN Doc. CEDAW/C/55/D/35/2011 (19 August 2013)

Decision