Particular social group and the trafficking context and the Refugee Issues

As published by the UNHCR in relation to Particular social group and the trafficking context: In the context of trafficking women for the purposes of sexual exploitation, the category of membership in a particular group is often the only option available for victims seeking protection from trafficking related persecution. As explained previously, there may be situations where one of the additional four categories factors into the analysis; however, it is likely that the sex of the victim will be a crucial characteristic targeted by agents of persecution in the commission of this crime.

The UNHCR Trafficking Guidelines address the application of membership in a particular social group to victims of trafficking. In addition to the analysis regarding the inclusion of gender as a particular social group discussed above, the Guidelines provide examples of sub-groups of women, for example, “single women, widows, divorced women, [and] illiterate women,” which are relevant in the trafficking context.108 It may also be possible to include women who have been trafficked for sexual exploitation on the basis of the “unchangeable, common and historic characteristic of having been trafficked.”109 \

Further support for this supposition can be found in the UNHCR Guidelines on Particular Social Group and the decision of the Canadian Supreme Court in Ward, acknowledging that past experience may qualify as a characteristic of a particular social group where the characteristic is unalterable.110 Victims may be perceived as a specific group by society based on the fact that they have been trafficked, identifying them as targets of persecution.111

As stated previously, it is not possible to define a social group solely based on the persecution feared or suffered by its members; however, the Trafficking Guidelines explain that the historical fact of trafficking serves as a defining characteristic of the social group, distinct from fear of persecution in the form of “ostracism, punishment, reprisals or re-trafficking.”112 In light of the suggestions from UNHCR on the inclusion of victims of trafficking as members of a particular social group, an examination of national jurisdiction decisions on this issue provides valuable insight into the treatment of victims of trafficking in State practice.

Moldova, discussed above, deals squarely with the application of particular social group to victims of trafficking.113 In reaching its determination of whether the victim in this specific case should be considered to meet the requirements of membership in a particular social group, the Tribunal avoids gender entirely. It determines that by defining the particular social group to include “former victims of trafficking” and “former victims of trafficking for sexual exploitation,” it is able to avoid the previously outlined requirement for proof of generalized discrimination against women.114 The focus falls on the shared immutable characteristic of having been trafficked to satisfy the definitional requirements of membership in a particular social group.115

This is a very narrow option for female victims of trafficking for sexual exploitation. While it potentially includes those victims who have been trafficked in the past, it fails to provide protection for women and girls who have been threatened with trafficking or fear being trafficked but have not yet actually been subjected to trafficking. Presumably, those women would be required to provide evidence of broad-based gender discrimination in their country of origin before they would be considered to constitute a particular social group for purposes of refugee protection.

The Australian Federal Magistrates Court has also addressed the application of membership in a particular social group to victims of trafficking for sexual exploitation.116 This case involved a woman national of Thailand who had been deceived into traveling to Australia to work in prostitution.117 Upon arrival, the victim was locked in a small apartment with other women and forced to work in a brothel as a sex slave.118 She was found through a raid of the brothel conducted by law enforcement and later assisted in the prosecution of her traffickers in Australia.119

The victim sought review of a decision denying her a protection visa and the Court addressed the issue of membership in a particular social group with respect to women victims of trafficking under the 1951 Convention.120 The Court did not question the lower tribunal's decision that sex workers in Thailand constituted a particular social group, whereas being a sex worker is a characteristic that defines the group and distinguishes the group from the rest of society.121 However, the analysis provided by the Court did not provide significant insight into how this category might be applicable in other jurisdictions.

Immigration judges in the United States have struggled with the interpretation of particular social group with respect to victims of trafficking. They have endeavoured to interpret this category in compliance with the standard outlined in Acosta, while at the same time delineating limits on United States obligations for protection. The following are examples of particular social groups both accepted and rejected by immigration tribunals in the United States122 In one case, the judge accepted the group of “sex slaves from foreign countries who are brought to the U.S. under false pretences and forced at the threat of death and destruction to participate in sexual activities.”123 While this group is partially defined by the persecution feared, it is also defined by the immutable historical characteristic of having been trafficked for sexual exploitation. In a similar case, the immigration judge rejected the category of women from the victim's country of origin “forced into prostitution by the mafia who escape from sexual bondage.”124 This social group included three immutable characteristics: gender, nationality and the historical experience of being subjected to sexual exploitation.

Another United States immigration judge determined that a “woman who was opposed to prostitution, but was being forced to engage in it against her will” was the member of a particular social group.125 Again, this group is partially defined by the persecution suffered but also by gender and by a characteristic that could be argued to be fundamental to her conscience and, therefore, she should not be required to change. In contrast, a judge rejected the group of “young Albanian women who will not voluntarily enter a life of prostitution.”126 The judge stated that it was not a “cohesive, homogenous group to which the term 'particular social group' was intended to apply.”127 Despite the fact that this group is defined more narrowly than the group accepted above, it was rejected on grounds of over-broadness.128

The requirement for cohesiveness or voluntary association has been explicitly rejected by UNHCR, as well as by some national jurisdictions.129 The above cases reveal the inconsistencies in decisions regarding particular social group determinations in trafficking cases. The insufficiency of decisions at the appeals level, as well as the confusion of the definitional elements contained in the 1951 Convention which is apparent in existing decisions, has failed to provide immigration judges with sufficient guidance in determining the applicability of the category of particular social group to trafficking victims.



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