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ADDRESSING CLAIMS BASED ON SEXUAL ORIENTATION
ADOPTED BY THE WORKING GROUP ON
Persecution directed against individuals because of their real or presumed sexual orientation is a human rights issue, as is any persecution. Torture, extrajudicial execution, arbitrary arrest and denial of freedom of expresssion and of association are examples of violations of fundamental human rights suffered by gay men and lesbians because of their sexual orientation.
Those with a well-founded fear of persecution on the basis of their sexual orientation meet the Geneva Convention refugee definition as interpreted by the Supreme Court of Canada in Ward and by the UNHCR in an advisory opinion prepared for a case in the US. Both the Supreme Court and the UNHCR recognized that people with a shared sexual orientation can form a particular social group. Some claims will also be based on one or more of the other grounds, particularly political opinion and religion.
Claims based on sexual orientation raise some specific issues for determination, but it should also be recognized that they are not fundamentally different from other claims.
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Past and continuing homophobia has resulted in a failure in Canada and elsewhere to ensure adequate protection of people fleeing persecution on the basis of sexual orientation. The same prejudices that contribute to the persecution play a role in the denial of protection to refugees. For some claimants in Canada these prejudices have resulted in:
- bad advice and lack of support from NGOs;
- poor representation by counsel;
- inappropriate treatment by immigration officials;
- shortage of documentation on human rights abuses against gay men and lesbians, as well as on the other realities of their lives;
- disregard of existing documentation, sometimes because it is dismissed as "unbalanced" or "biased";
- misapplication of the refugee definition by decision-makers;
- shortage of relevant precedents.
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To ensure that claimants whose claims are based on sexual orientation receive as a matter of course a fair hearing on their claim, without favour or prejudice, receive protection if they need it and are in any case treated respectfully throughout the process.
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FACTORS AT PLAY
The following are factors to take into consideration in dealing with claims based on sexual orientation:
- There may be a delay in making a claim or in referring to sexual orientation because of bad advice or fears resulting from past experiences.
- For gay men and lesbians who have come out only since their arrival in Canada, there are often particular difficulties in substantiating the claim, since documentation (often scarce) from the country of origin must be relied upon.
- The universality of homophobia is sometimes used as an argument against accepting gay men and lesbians as refugees. "Since gay men and lesbians are discriminated against in Canada too, why should they be given refugee status here?"
- The implication of laws on homosexuality is not necessarily self-evident.
- Laws prohibiting homosexuality are prima facie evidence of persecution, but are sometimes used as a basis for arguing claimants are being prosecuted rather than persecuted.
- Laws which do not directly refer to homosexual activity may be used against gay men and lesbians (e.g. China's law on hooliganism).
- Laws which are not being enforced may still have significant impact because their existence gives an air of illegality to the lives of gay men and lesbians, with the consequence that state agencies may refuse protection to gay men and lesbians.
- Gay men, lesbians and bisexuals may enter into heterosexual marriages as a cover to hide their sexual orientation. Gay men and lesbians may also have been in genuine marriages before they came to terms with their sexual orientation.
- Documentation on human rights violations against members of sexual minorities is inadequate for a number of reasons.
- Many gay men and lesbians do not report human rights violations they have suffered because the authorities condone or participate in the abuses. In fact reporting abuses may lead to further victimization.
- In some countries some associations of sexual minorities will not speak out on abuses or will even deny that they occur because of fears for the consequences.
- Few human rights organizations have a well-established tradition of reporting on abuses suffered by sexual minorities and some organizations actually refuse to report these abuses or recognize them as significant human rights violations. Amnesty International included sexual orientation in its mandate only recently. Gay men and lesbians may not have sufficient trust of such organizations to report abuses to them.
- The experiences of members of sexual minorities may differ signficantly between socio-economic classes. In many cases there may be better documentation on the realities of the upper classes, who are likely to be less vulnerable to persecution.
- There are significant differences between the ways in which gay men and lesbians are treated. For example, in some countries forced psychiatric "treatment" is used against lesbians in particular, while in some countries sodomy laws are directed against men rather than women.
- Board Members may be uncertain about how to test a person's claim that he or she is a member of a sexual minority.
- Board Members' personal values and beliefs or discomfort with the issues discussed may compromise gay and lesbian claimants' right to a fair hearing. Therefore Members should be encouraged to decline to hear claims which they believe they will not be able to decide fairly.
The Chairperson of the IRB should develop and adopt Guidelines for the determination of claims of persecution on the basis of sexual orientation. The Guidelines should include a discussion of the kinds of question that can appropriately be asked to test the credibility of gay and lesbian claimants. The discussion on credibility should emphasize the need for discretion and sensitivity towards the claimant's feelings when asking them to answer potentially embarassing questions.
- The IRB should provide training for staff (including RHOs and interpreters) and IRB members. Training should cover questioning of gay and lesbian claimants, including the need for discretion, integrity and sensitivity in hearings of this type, issues relating to documentation, and country-specific sessions, particularly for countries from which a significant number of gay and lesbian claimants come.
- There should also be sessions on confronting personal homophobia.
- Gay and lesbian groups should be involved in the planning and giving of training sessions.
- Citizenship and Immigration Canada, lawyers' associations and NGOs should be encouraged to organize training for their staff/members.
- The IRB should research and make widely available information on the culture and human rights status of gay men and lesbians in each part of the world from which claimants come. Potential sources would include individuals and groups with general country-specific expertise who may be able to provide relevant information if asked.
- The value of documentation and expertise of gay and lesbian groups should be recognized.
- More consistent recognition should be given to the expertise of gay and lesbian rights specialists and human rights workers generally when they appear before the Board as expert witnesses.
- NGOs and lawyers collecting documentation should ensure that information relevant to gay men and lesbians is included.
- The IRB should review written decisions and transcripts to monitor for homophobia.
- Within the context of processes for making complaints, the IRB and the Immigration Department should ensure that complaints on possible homophobia are received, properly investigated and acted upon.