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Sexual Orientation or Gender Identity Refugee Claims

The President of Uganda, Yoweri Museveni, announced on September 27, 1999 at a workshop for Members of Parliament from countries in east and southern Africa that all homosexuals would be arrested and charged by the Criminal Investigation Department (CID). I and the otherboard members went into hiding on October 29th when we learned about the President’s order...On October 6 at about 10:00 p.m. just after we finished our dinner and were discussing the situation, about eight armed soldiers raided the house...The doors of the main house were open since we knew the gate was locked and we were not expecting a raid. We later learned that there was a government informant in our group. The soldiers used a ladder to go over the high fence that surrounded the house, and they unbolted the gate. The soldiers handcuffed me, covered my face with a black piece of cloth and led me to a Landrover 110 parked outside the gate. I did not know what happened to the others. About 30 minutes later we arrived at our destination and they removed the black cloth, my shoes and my watch. I guessed that I was in the notorious headquarters for the Directorate of Military Intelligence on Kitante road near Fairway Hotel. For over six hours I was interrogated about my sexuality, the organization I led, who my donors are, and who my contacts are both inside and outside the country. A major conducted the interrogation in the presence of two soldiers. I was slapped twice by the major who thought I was not telling him enough of what he wanted to hear from me. Later that morning around five I was driven in a minibus to Mbuya Military Barracks. When the other inmates learned that I was not a soldier but a gay activist, they tortured me until I bled from my nose since that jail was meant for only soldiers or cases investigated by the army…

Excerpt from the Personal Information Form filed in VA0-00504 with the Immigration and Refugee Board.

While many countries in the world like Canada have made incredible strides the past few decades recognizing equality rights for LGBTQ people, other regions have seen a mounting tide of intolerance and violence. 75 countries criminalize same-sex relations; seven of those provide the death penalty. LGBTQ people are killed for family honour and beaten to death by mob violence.

Canada is a signatory to the United Nations Convention on Refugees and has an obligation to provide asylum to those with a well-founded fear of persecution. The Convention’s five grounds for claiming refugee status are incorporated into Canadian immigration legislation. While sexual orientation or gender identity (“SOGI”) are not specifically listed, the fifth ground of "membership in a particular social group" is an open-ended category.

The first case that found sexual orientation constituted membership in a particular social group was the 1992 Immigration and Refugee Board (IRB) decision of Jorge Inaudi. The leading case on whether sexual orientation constitutes membership in a particular social group is the Supreme Court of Canada decision Ward [1993] 2 S.C.R. 689 p. 732.

Gender identity has also been accepted as meeting the Ward test (see Gender Identity and Immigration). HIV status may also be a ground for claiming refugee status (see Canadian Immigration and HIV).

SOGI claims in Canada have steadily increased over the years. Canada is known as one of the most gay-friendly countries in the world and respects LGBTQ equality rights. The fact you are reading this demonstrates how access to the Internet has spread knowledge about SOGI refugee claims in Canada. Only a small fraction of the millions of persons throughout the world fearing SOGI-based persecution get to Canada to make a refugee claim. Firstly, most can’t afford to travel or obtain a visa. Visa applicant must show substantial ties with their home country. Secondly, the Safe Third Country Agreement between Canada and the USA severely reduces border refugee claims. Now, only non-US citizens or non-permanent residents of the US with a close family member in Canada can make refugee claims at a land border. It is still possible to make a refugee claim at an immigration office in an airport or ferry terminal. Claimants illegally crossing the border are eligible to make a refugee claim at an inland CIC office if they are not caught crossing.

A SOGI refugee claimant making a refugee claim at an overseas Canadian visa office faces formidable barriers. Canada is under no legal obligation to accept refugees outside Canada for resettlement. The claimant must be outside of their country of citizenship or habitual residence. They generally apply for refugee status through the United Nations High Commissioner for Refugees then are referred to the Canadian visa office for resettlement. Locally engaged staff in the visa office may share the same cultural and religious prejudices as persons in the claimant’s country. Claimants can wait years for processing and the Canadian visa office will not intercede with local immigration authorities to obtain temporary status while the application is processed.

A claimant refused by a visa office to immigrate to Canada has limited remedies compared to inland refugee claimants. Visa offices have no statutory obligation to consider whether a refugee claimant is a “person in need of protection” as in refugee hearings in Canada. There is no right of appeal of a visa office’s refusal. Failed refugee claimants require leave before they can have a hearing for judicial review in Federal Court. Most applications for leave are refused. If at all possible, it is preferable to make a claim in Canada rather than outside.

A refugee claimant need not have been out as gay or lesbian in their country or have previously experienced persecution to claim refugee status. The test is forward looking, that is, whether a claimant faces a serious possibility of persecution if they returned to their country.

Common issues in SOGI based claims are:

  • Identity
  • Credibility
  • State Protection
  • Internal Flight Alternative
  • Discrimination versus persecution

Identity and Credibility

It can be difficult for someone hiding their sexual orientation their entire life to prove they are queer at a refugee hearing. This is particularly challenging with the short time frames for the refugee process where someone could have a hearing within 45 days of making their claim. Consulting with a lawyer experienced in SOGI refugee claims at the earliest possible opportunity is essential.

Visibility frequently factors in SOGI refugee claims. While queer activists and transgender persons have little difficulty establishing they are identifiable, closeted gays or lesbians face more of a struggle convincing the IRB they face a serious risk of persecution. Bisexual claimants may have a harder time because the IRB often wrongly considers they can blend like chameleons into a heterosexual world and don’t consider the risks faced from homophobic persecutors perceiving them as queer. Generally, claimants out and active in the queer community have fared better than those remaining in the closet after they arrive in Canada. There are cases holding a queer claimant should not be expected to hide their sexual orientation to survive if they were returned to their country.

State Protection

The refugee claimant must prove their government is unable or unwilling to provide adequate State protection against persecution. Many countries may not have explicit laws criminalizing sexual orientation or gender identity or even have laws purportedly providing protection against discrimination, yet in reality have high levels of unchecked homophobic and transphobic violence.

Internal Flight Alternative (IFA)

The concept of IFA is complex but it basically means whether a refugee claimant can access protection in another area within their home country that is considered safe. For SOGI claimants the largest and most sophisticated cities in their country are usually assessed as to whether they are a reasonable IFA.

Discrimination versus Persecution

Persecution isn’t just imprisonment, torture, or death. Persecution is a serious human rights abuse. Serious systematic discrimination may be persecution. For example, restrictions on the right to earn a livelihood or access normally available educational facilities could amount to persecution. While Canada’s refugee determination decision-makers are generally sympathetic to LGBTQ persons facing persecution, this remains one of the most complex areas of immigration law. Planning and preparation are required to present the evidence and argument for a compelling case. This is particularly true with changes in the rules that set strict time frames for the process. A claimants needs to be guided as early in the process as possible by a lawyer experienced in representing SOGI clients.

The information presented is not legal advice, is not to be acted on as such, may not be current and is subject to change without notice.

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