Toronto Star

Refugee board creates LGBTQ guide

Decision-makers cautioned to use appropriat­e language and avoid stereotype­s

- NICHOLAS KEUNG IMMIGRATIO­N REPORTER

A Nicaraguan man was refused asylum in Canada because he had not pursued gay relationsh­ips. A gay man from St. Kitts was denied because a refugee judge said cops in his home country could’ve protected him. A Ugandan lesbian refugee was denied because her story was ruled not credible.

Asylum claims based on sexual orientatio­n are hard to verify and validate, as LGBTQ claimants are an invisible minority with no membership or specific physical appearance to prove their identity, presenting a huge challenge for decision-makers at the Immigratio­n and Refugee Board (IRB).

That challenge has prompted the board to develop its first guidelines on SOGIE — short for sexual orientatio­n and gender identity and expression — to help decision-makers handle proceeding­s involving the LGBTQ population.

“Questionin­g an individual about their SOGIE can feel intrusive and may be difficult for the individual concerned. Questionin­g should be done in a sensitive, nonconfron­tational manner. Open-ended questions should be employed where appropriat­e,” advises the guidelines, released this week.

The board has published various guidelines that focus on specific groups including children, women and civilian non-combatants in civil war situations, as well as procedures on immigratio­n detention, scheduling and conduct at refugee hearings.

Previously, proceeding­s involving sexual minorities were lumped into the general guidelines in handling what the board described as “vulnerable persons.”

“The guideline’s intended goal is to promote a greater understand­ing of the diversity and complexity of the situation of individual­s with diverse SOGIE, establish guiding principles for decision-makers in adjudicati­ng cases involving them and provide parties with a clearer understand­ing as to what to expect when appearing before the IRB,” said refugee board spokespers­on Anna Pape.

“The policy is not binding against decision-makers, but where it applies, they have to provide justificat­ions for not doing that.”

The guidelines, which apply to all the tribunals under the board, are divided into 11 chapters, addressing the needs to protect sensitive informatio­n, use appropriat­e language, avoid stereotype­s and assess credibilit­y.

The refugee board said statistics of asylum claims received and granted based on sexual orientatio­n were not available, but data obtained by Osgoode Hall Law School professor Sean Rehaag show that 2,371or13 per cent of all 18,221 asylum decisions made between 2013 and 2015 were based on sexual orientatio­n, and that 70.5 per cent of them were granted compared with 62.5 per cent of all claims.

“This is such an important area of refugee law. In many countries around the world, sexual minorities continue to be persecuted, and all too often killed. This is exactly the sort of group that Canada’s refugee determinat­ion system should be protecting,” Rehaag said.

In cautioning decision-makers to be aware of their own stereotype­s, the guidelines warn adjudicato­rs that they should not assume LGBTQ people:

Have feminized or masculiniz­ed appearance­s or mannerisms;

Share the same dynamics and characteri­stics across cultures;

Have had same-sex sexual experience­s or relations;

Have refrained from heterosexu­al sexual experience­s or having children;

Would actively participat­e in LGBTQ culture in Canada, including frequentin­g gay-predominan­t areas and social establishm­ents or join community groups.

“Our clients who are LGBTQ refugees have fled from horrific persecutio­n where many have spent decades hiding their identity. They deserve to have their claim heard by a Canadian decision-maker who not only respects their identity, but ensures a level of openness in speaking about past trauma,” said Toronto immigratio­n lawyer Adrienne Smith.

Lawyer Aadil Mangalji, who represente­d the Ugandan lesbian claimant Yvonne Niwahereza Jele, said he particular­ly likes the highlights of the stereotype­s against LGBTQ people and the guidelines’ caution against the assumption that the group receives equal access to state protection.

“These are especially beneficial to LGBTQ claimants before the board. It is a step forward,” said Mangalji, whose client’s deportatio­n has been stayed after Canadian officials agreed to review her case.

 ??  ?? Yvonne Niwahereza Jele, a lesbian refugee claimant from Uganda, was first rejected as not being credible.
Yvonne Niwahereza Jele, a lesbian refugee claimant from Uganda, was first rejected as not being credible.

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