FAQ: LGBT issues in Canada’s Immigration and Refugee System
Important Note: This FAQ is intended to provide general information on LGBT issues in Canada’s refugee and immigration system, and should not be treated as legal advice. You should seek the assistance of a lawyer for immigration or refugee applications. Some free legal clinics in Canada provide assistance with filing a refugee application.
Can I claim refugee status based on sexual orientation or gender identity?
The UN Convention Relating to the Status of Refugees is the basis for refugee law in Canada. Convention refugees are people who are outside their home country or the country where they normally live, and who are unwilling to return because of a well-founded fear of persecution based on race, religion, political opinion, nationality, or membership in a ‘particular social group.’ To be accepted as a refugee, an asylum seeker must demonstrate that they face persecution based on one of these grounds. Internationally, sexual orientation and gender identity have been protected under social group, political opinion, and religious persecution in some jurisdictions. The United Nations High Commissioner for Refugees has also recognized them as protected grounds of persecution.
The Supreme Court of Canada has ruled that sexual orientation is a ‘social group’ within the context of determining convention refugee status (Canada v. Ward,  2 S.C.R. 689). This means that someone with a well-founded fear of persecution based on their sexual orientation can seek asylum in Canada. The court defined a “particular social group” as: (1) groups defined by an innate, unchangeable characteristic; (2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and (3) groups associated by a former voluntary status, unalterable due to its historical permanence. The Ontario Women’s Justice Network provides a detailed overview of refugee status in Canada.
Canada generally accepts claims based on sexual orientation at a similar rate to other refugee claims. In Valoczki v. Canada ( F.C.J. No. 612 (QL)) the Federal Court held that decision makers should not only consider whether a claimant is homosexual or heterosexual, but should also consider whether a claimant is bisexual. However, in practice, bisexual claimants are far more likely than other claimants to have their refugee status rejected (Rehaag, Patrolling the Borders of Sexual Orientation: Bisexual Refugee Claims in Canada, (2008) 53 McGill L.J. 59). One reason for this has been use of an understanding of sexual orientation as “innate” by some Immigration and Refugee Board (IRB) members. This view of sexual orientation has been linked to the difficulties experienced by bisexual claimants, such as suspicion that their claims are fraudulent because they have had former opposite-sex relationships. However, recent decisions in the Federal Court have recognized that many people enter same-sex relationships after being in an opposite-sex relationship (NKL v Canada (Minister of Citizenship and Immigration), 2011 FC 28 at par. 18). This understanding has been important to the recognition and protection of bisexual refugee claimants.
The supreme court of Canada has not yet clarified whether gender identity persecution is persecution based on social group, political opinion, or religion. However, Canada’s lower courts have taken on cases that deal with gender identity in refugee law. Appeals from the IRB are heard at Canada’s Federal Court, whose decisions set rules for future IRB cases. In Hernandez v. Canada ( F.C.J. No. 1665), the Federal Court held that the IRB had erred in failing to consider that the claimant was transgender, or that she may face discrimination on the basis of her gender identity if forced to return to her country of origin. This decision was also important because the court noted that the claimant was hesitant to acknowledge her gender identity to immigration officials for fear of persecution. This is a common barrier for transgender and gender nonconforming claimants from countries where persecution is common. This issue is also covered in IRB guidelines for vulnerable persons (see below). Hernandez is an example of a case in a lower court that supports gender identity as a social group. A law professor at the university of Ottawa has prepared a report for the IRB on sexual orientation, gender identity, and refugee law in Canada, which is an excellent source of more detailed information on the topic.
What does persecution mean in refugee law? What constitutes a well-founded fear of persecution?
One requirement to be labeled a convention refugee is that an asylum seeker must demonstrate a well-founded fear of persecution. Persecution can come from state actors, such as police or the military, or from non-state actors, where the state is unwilling or unable to provide protection. Asylum seekers must prove that they have been or will likely be persecuted because of their sexual orientation or gender identity if forced to return to their country of origin. Demonstrating that they are discriminated against is not enough. The definition of persecution used in Canada was outlined in the case of Canada v Ward ( 2 S.C.R. 689).
Even if asylum seekers have not faced persecution in the past because they hid their sexual orientation or gender identity, their claim is still valid if they would experience persecution were they to live in their identity in their country of origin. In some nations, such as the US, refugees have been asked to “be discrete” about their sexual orientation when possible, to avoid persecution. However, the Canadian courts have not only rejected this approach, but also found the requirement to conceal one’s identity to be a form of persecution itself. In Sadeghi-Pari v Canada ((Minister of Citizenship and Immigration), 2004 FC 282, at par. 29), the Federal Court held that “expecting an individual to live in such a manner could be a serious interference with a basic human right, and therefore persecution” while referring to an IRB recommendation that a woman conceal her sexual orientation to avoid persecution. Cases like this one suggest that a refugee coming to Canada will not be expected to hide his or her sexual orientation or gender identity so as to return safely to the country of origin.
The United Nations High Commissioner for Refugees (UNHCR) plays an important role in the Canadian refugee system. Its mandate is to coordinate international efforts to protect refugees, and it directly refers many refugees to Citizenship and Immigration Canada, including LGBT refugees. As the official UN body interpreting the convention, it is an authority taken into account by Canadian courts. In recent years, the UNHCR has published information addressing the rights and needs of refugees seeking protection from persecution on the basis of their sexual orientation and gender identity. The UNHCR has created specific guidelines for claims based on sexual orientation and gender identity under that convention. These guidelines are not legally binding on the Canadian IRB, but do carry persuasive weight.
The UNHCR guidelines have articulated the difference between persecution and discrimination of LGBT people in employment, saying “[w]hile being dismissed from a job generally is not considered persecution, even if discriminatory or unfair, if an individual can demonstrate that his or her LGBTI identity would make it highly improbable to enjoy any kind of gainful employment in the country of origin, this may constitute persecution” (par. 25). Similarly, the UNHCR guidelines state that well-documented discrimination in such areas as child custody, freedom of expression, and pensions, and well-documented community ostracism might cumulatively constitute persecution (par. 24).
The guidelines warn that many asylum seekers coming from countries where they face persecution have not lived openly in their sexual orientation or gender identity, and that decision makers should not rely on whether claimants conform to stereotypes to assess the validity of claims. The guidelines recognize the importance of cultural differences in understanding sexual and gender identity. They state that “[n]ot all applicants will self-identify with the LGBTI terminology and constructs as presented above or may be unaware of these labels. Some may only be able to draw upon (derogatory) terms used by the persecutor. Decision makers therefore need to be cautious about inflexibly applying such labels as this could lead to adverse credibility assessments or failure to recognize a valid claim” (Par. 11). These points are important as they address common problems in assessing claims based on sexual orientation and gender identity.
The UNHCR has also reported that many countries that accept refugees also discriminate against individuals on the basis of their sexual orientation and gender identity. Additionally, Canada’s Immigration and Refugee Board has made use of the UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity.
Can I claim family members who cannot accompany me at the time I arrive in Canada?
Canada’s refugee and immigration programs allow refugee claimants and immigrants to list family members who are not able to accompany them at the time they enter Canada, but will be joining them after the fact. This allows them to link their applications and expedite the process. The CIC provides more information here.
However, Canada’s refugee and immigration system creates very specific barriers for LGBT families as it relies on recognition of family bonds by the country that families are coming from. Canada allows refugees and immigrants to list their spouses as non-accompanying family members, but does not allow common-law partners to do so. The effect of this is that Canada will not recognize partnerships where couples have not been able to access same-sex marriage. A couple fleeing a country due to persecution based on sexual orientation usually does not have access to marriage equality in their country of origin, and is unlikely to have been able to travel to another country to obtain a marriage license. The result is that same-sex partners who must travel to Canada separately will most often be unable to take advantage of the one-year window that Canada offers spouses.
Canada’s refugee and immigration programs also allow claimants to list dependent children who will not be able to travel with them. This can occur when families are separated due to the persecution that led to their refugee claim. However, Canada’s system creates specific barriers for LGBT families who are forced to travel separately. Most governments worldwide do not allow individuals to adopt their same-sex partner’s biological child, or allow same sex partners to jointly adopt. As a result, Canada will not recognize that many parents in same-sex relationships are parents to their children, and as a result, they will not be able to access the resources available to parents who are in opposite sex relationships.
Are there any Immigration and Refugee Board Guidelines about LGBT refugee claimants?
Under the Immigration and Refugee Protection Act, the Chairperson of the Immigration and Refugee Board of Canada (IRB) may set guidelines for the IRB. Although these guidelines are non-binding, the Supreme Court of Canada has ruled that during an appeal, violations of guidelines can be proof that the original decision was unreasonable (Baker v. Canada (Minister of Citizenship and Immigration),  2 S.C.R. 817). As a result, guidelines do have practical authority over decision makers. There are no guidelines specific to the needs of LGBT refugee claimants. However, several general guidelines may require the IRB to take special precautions to recognize needs that are unique to LGBT refugee applications.
Guideline 8 (Guideline on procedures with respect to vulnerable persons appearing before the IRB) provides special support for individuals identified as ‘vulnerable persons’ while they are before the IRB. The definition of ‘vulnerable persons’ within the act includes those disadvantaged due to their sexual orientation or gender identity. The guidelines encourage decision makers to consider how membership in a vulnerable group affects a person’s ability to provide evidence and testimony, and allow decision makers to use modified procedures during the hearing to accommodate vulnerable persons. This is useful because LGBT claimants have often experienced persecution by state actors in their countries of origin, and accommodative procedures may help them to feel safe providing personal information to the IRB. However, these adjustments are made for procedural accommodation alone, and will not necessarily lead to a particular decision for the claimant. Where appropriate, vulnerable persons may also receive scheduling priority, and the IRB may request additional expert testimony. Section 16 of the Guideline reiterates the importance of including LGBT persons among the list of vulnerable persons.
(Women refugee claimants fearing gender-related persecution) does not explicitly state that it applies to lesbian, bisexual, or transgender women. However, it can still be a useful tool to address gender-related persecution faced by LBT women. This is supported by the fact that in many areas of the world, LBT women are at a heightened risk for sexual violence, a form of gender persecution recognized within the guideline, because of their LBT status. More explicitly, the guideline provides that women are part of a gender defined social group as a “consequence of failing to conform to, or for transgressing, certain gender-discriminating religious or customary laws and practices in their country of origin.” This is consistent with IRB decisions that recognize the link between gender-nonconformity and persecution of LBT women (see, for instance, C.L.Q. (Re),  C.R.D.D. No. 145, T94-06354 (CRDD)), and with UNHCR Guidelines on Gender-Related Persecution (see para. 16). The guideline also makes reference to the decision in Canada v. Ward ( 2 S.C.R. 689), which held that sexual orientation was a recognizable social group. Guideline 4 provides necessary support to LBT women as it acknowledges forms of persecution uniquely targeted at women, such as forced marriage, “corrective” rape and genital mutilation, and acknowledges the special needs of claimants who have suffered sexual violence.
How does Bill C-31 affect LGBT claimants?
On 28 June 2012, Bill C-31, the Protecting Canada’s Immigration System Act, was given royal assent. The Act amended the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act, the Marine Transportation Security Act and the Department of Citizenship and Immigration Act. The effects of these amendments may be significant for lesbian, gay, bisexual and trans refugee claimants. The following analysis summarizes the pertinent changes and their potential implications.
Summary of Changes
Under the new legislation, the Minister of Citizenship and Immigration has the power to designate a country as a “safe country of origin.” Refugee claimants from countries that have been designated as safe will lose certain rights:
- Refugee claims from designated countries are done in an expeditious fashion, taking place sooner than claims made by persons from other countries. The changes enacted by Bill C-31 reduce the processing time from 171 days to 45 days, in comparison to the 216 days allotted for countries that are not designated as safe. This will result in significantly less time to prepare the claim.
- Refugees from “safe countries” are barred from appealing a negative decision to the Refugee Appeal Division (which conducts an independent review of the merits of the decision), an avenue that is available to claimants from other countries. This removes a claimant’s ability to appeal a decision for further review by the courts prior to removal.
- Under the new legislation, the removal of a failed refugee is stayed pending judicial review of the decision. However, this stay of removal does not apply if a failed claimant is from a designated safe country. This means that failed claimants from these countries will be removed from Canada more quickly than other claimants.
Implications for LGBT Claimants
The lesbian, gay, bisexual and trans community stands to be disproportionately affected by the changes because some of the countries that produce the largest number of claims based on sexual orientation have been considered safe. Mexico, for instance, has come under fire for producing high numbers of “bogus” refugee claims and has been determined to be a safe country. However, in recent years, Mexico represented the largest number of claims brought before the IRB that were based on sexual orientation. For more information, see Egale’s issue paper on LGBT persecution in Mexico and Canada’s Refugee Program.
In addition, researchers at Simon Fraser University have stated that, because of the difficulty of documentary evidence required in proving claims based on sexual orientation and gender identity, the reduced filing window will have a particularly harmful effect on LGBT claimants.
There is also cause for concern in regard to Humanitarian and Compassionate Applications. Previously, claimants whose refugee claim was rejected could apply immediately to remain in Canada because of humanitarian and compassionate considerations. This was particularly important for LGBT asylum seekers because many could demonstrate that they faced discrimination in their country of origin, but were rejected as they failed to demonstrate that this discrimination was enough to be persecution. The discrimination and harassment they faced was sometimes enough to support a Humanitarian and Compassionate Application. Under the new legislation, a failed refugee claimant cannot make a Humanitarian and Compassionate Application concurrently with a refugee claim nor will a failed refugee claimant be permitted access to a Humanitarian and Compassionate Application for 12 months following a final negative decision of the IRB (more info). Given the expedited process for persons from designated counties, this would effectively remove access to a Humanitarian and Compassionate Application for some refugee claimants.