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  • Writer's pictureMichigan Journal of Gender & Law Online

An Intersectional Approach to the Internal Protection Alternative for Asylum

By Rebecca Garfinkel

In April 2006, the Refugee Protection Division of the Immigration and Refugee Board of Canada considered the asylum case of Erika Cardenas Parrales, a lesbian from Mexico who suffered years of persecution due to her sexuality.[1] Ms. Parrales was attacked by a group of men in Querétaro, her hometown, in a beating so brutal it required reconstructive surgery. Two years later she was attacked by a group of policemen. She moved to Monterrey, where she began a relationship with a woman. As Ms. Parrales and her partner left a bar one night, she was sexually assaulted by policemen while her partner was held at gunpoint. Ms. Parrales continued to receive threats in Monterrey, including from her ex-partner’s fiancé, a high-ranking police official, before returning to Querétaro; after her life was threatened again, she fled. At her hearing she testified that if forced to return to Mexico she would live in constant fear.

The Board denied asylum to Ms. Parrales on the grounds that she could safely relocate to Mexico City.[2] The internal protection alternative (IPA) inquiry is an essential element of the refugee definition: if it is shown that an asylum applicant can escape persecution by relocating within his or her country of origin, this obviates the need for international protection and thus the applicant is not entitled to refugee status.[3] Yet cases of intersectional persecution suggest the common approach to IPA is seriously flawed and must be rethought.

An IPA analysis usually places the burden on the applicant to prove he or she does not have an IPA elsewhere in his or her country. The analysis proceeds with a two-prong test: first, the applicant must show there is a “serious possibility”[4] of further persecution upon relocation, and second, that “in all the circumstances”[5] it would be unreasonable to relocate to the proposed IPA. This approach is used in Canada and the US, among other jurisdictions.[6]

The two-prong test is highly problematic. It is subjective, vulnerable to error, and punishes applicants who are more privileged or resourceful than applicants who are less well-situated. This deficiency is on clear display in Parrales, where the IRB observed that Ms. Parrales “‘appeared to be in good health’, is well-educated and is a capable, resourceful, young woman.”[7] Moreover, the reasonableness inquiry elides the necessary analysis of whether protection for the asylum applicant is actually on offer, instead placing the burden on the applicant to establish that she faces persecution country-wide.

This is devastating in practice, especially for vulnerable individuals who face multiple layers of persecution. Courts tend to focus on the most obvious grounds for persecution – here, Ms. Parrales’ sexual orientation—without considering how the intersection of those grounds with additional persecuted identities—here, her gender—might hinder protection elsewhere in the country of origin. If the Board had looked further, it would have found that while Mexico City is a haven for gay men, discrimination and violence against women of all sexual orientations is widespread.[8] Ms. Parrales would have been no safer in Mexico City than in Querétaro or Monterrey, for the simple fact that she was a woman.

For asylum applicants facing intersectional persecution, courts would do better to focus not on the absence of persecution in the proposed IPA, but the presence of affirmative state protection. This approach is best demonstrated in New Zealand, which has rejected the reasonableness test in favor of an analysis grounded in the 1951 Convention on the Status of Refugees, which guarantees a litany of rights to persons who meet the refugee definition.[9] For an IPA to meet the state protection requirement, it must guarantee at least those rights that a refugee would have access to in a potential asylum state under the Convention. Only then would the IPA truly obviate the need for protection. Thus, the analysis considers what Convention rights are actually on offer in the proposed IPA and whether the applicant could access these rights on a non-discriminatory basis.[10]

This approach is more principled, precise, and above all, faithful to the object and purpose of the Convention: to limit protection to those without a real chance at safety within their own country. It focuses the IPA analysis on the claimant’s real chance to establish a dignified life elsewhere in her country. It guarantees that refugees who have made a prima facie claim for asylum are met with at least the same rights as they would receive in a potential asylum country. And it allows a fair and targeted assessment of rights for claimants facing persecution due to multiple aspects of their identity.

[1] See Parrales v. Canada (Minister of Citizenship and Immigration), [2006] F.C. 504, ¶ 1 (Can.) [hereinafter Parrales]. [2] On appeal, the Canadian Federal Court remanded to the IRB for further consideration of the reasonableness of Ms. Parrales relocating to Mexico City given her personal circumstances and experiences, namely, her sexual assault at the hands of Mexican police. Id. [3] See James c. Hathaway & Michelle Foster, The Law of Refugee Status 332 (2d ed. 2014). [4] Rasaratnam v. Minister of Employment and Immigration, [1991] 140 N.R. 138 (Can.). [5] Id. [6] Singh v. Whitaker, 914 F.3d 654, 659 (9th Cir. 2019). [7] Parrales at ¶ 11. [8] See X (Re), 2002 IRB 52644 (Can.). [9] These rights include “freedom of religion (Article 4), rights to property and work (Articles 13-15, 17-19), social welfare assistance (Articles 23 & 24), access to housing and education (Articles 21 & 22), access to the courts (Article 16) and mobility rights, including identity papers and travel documents (Articles 26-28)”. Refugee Appeal No. 76044 [2008] NZAR 719, ¶ 140 (NZRSAA) (N.Z.). [10] See Hathaway, supra note 3.


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