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Imagine spending your life fearing you’ll be imprisoned for your sexual orientation or that a mob will grab you on the street and beat you senseless.
Then you hear that Canada offers asylum. Now picture some Canuck ’crat looking at your refugee claim and pronouncing you not quite gay enough.
Yup, it actually happens. How many times? No one’s quite sure. Egale Canada has filed an access-to-information request for numbers of refugee claims based on sexuality, but for now it’s a mystery.
We do know, says the org’s exec director, Helen Kennedy, that there have been cases where “gay men have been denied [refugee status] because they were not effeminate enough.”
Every case, says refugee lawyer and founder of Salaam (a gay Muslim support group) El-?Farouk Khaki, still comes down to establishing the applicant’s credibility. He speculates that there have been hundreds of claims by gays and lesbians, and while many succeed, he sees the refugee situation getting gloomier.
For example, says Khaki, “Six years ago, the average [success rate of] Mexican refugee claims based on sexual orientation was 50 to ?60 per cent. Today it’s 9 per cent.”
It’s certainly been a story of heartbreak for Nicaraguan Alvaro Orozco, whose claim was denied by tele-?conference and whose deportation was ordered. He’s still fighting for Canada’s Immigration and Refugee Board (IRB) to recognize he’s queer.
“I have Alvaro sitting here,” says Khaki. “Everyone knows he’s gay, but the Refugee Board said, ‘We don’t believe you.’”Certainly, Canada gives every appearance of intending to provide refuge for those threatened by homophobia. We are a signatory to the UN Convention Relating To The Status Of Refugees, which protects those who have a well-?founded fear of persecution because of race, religion, nationality, political opinion or “membership in a particular social group.”
In 1993, the Supreme Court ruled that that latter phrase covers sexual orientation, gender and gender identity.
But between the judicial desire and the refugee-system reality lies a chasm. Lawyers for LGBTs at risk say the Immigration and Refugee Board lacks the wherewithal to make decisions about who is and isn’t queer.
IRB spokesperson Charles Hawkins denies that board members are incapable of making such distinctions. “Our members receive proper training in order to make sure their decisions comply with the Immigration and Refugee Protection Act,” he says. Hawkins sends along a 21-?page document used to train IRB members. It warns against stereotyping, assumptions and includes tips on questioning claims. But Khaki isn’t impressed.
“You don’t overcome homophobia in a one-hour training session. Homophobia is entrenched in patriarchy, and we’re still reeling from millennia of its effects,” he says.
He also worries that LGBT people trying to flee persecution are suffering because of the Safe Third Country agreement, which allows Canada to turn claimants away at the Canada-?U.S. border.
“That resulted in a 40 per cent drop in refugee claims here,” Khaki says. (Hawkins points out that Mexicans and a handful of others are excluded from the terms of that law.)Then there’s the fact that the Canadian government is issuing few visas to those fleeing the biggest violators: Mauritania, Nigeria, the United Arab Emirates, Sudan, Iran, Saudi Arabia and Yemen – places where you can face death for same-sex behaviour.
“If you don’t issue people visas, they can’t come and ask for your protection,” says Khaki.
The situation, he says, will only get worse with enactment of Bill C-?50, which will allow the immigration minister to exercise greater selection powers and limit the number of newcomers, in hopes of reducing the grand total backlog of 900,000 immigration applications.
Those lucky enough to make it to an IRB hearing may face questions like the one asked recently of a Kenyan client of Khaki’s: “Why can’t you go back and be discreet?”“People shouldn’t have to hide who and what they are to be safe,” says Khaki, who wonders if the IRB is forgetting why Canada signed the UN convention in the first place. “Do you have to be discreet if you’re Jewish?”
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