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LGBTQ asylum seekers persevere in the face of legal aid cuts in Ontario that are making a tough situation even worse
On January 11, Dennis Wamala took a taxi to Entebbe International Airport, just outside his hometown of Kampala. He had done the trip many times before – driven the same roads and arrived at the same terminal. But this was different. It would be his last trip to Uganda’s busiest airport.
Wamala, 34, was sweaty and anxious. A week earlier, he decided he had to leave his country.
“It was surreal. You have a return ticket but you know you’re not coming back,” he says. “Everything you see, you’re seeing for the last time.”
It was an uncharacteristically hurried decision, but his situation was deteriorating quickly.
As a prominent LGBTQ+ activist and bisexual, Wamala, who calls himself a human rights defender, had spent years at the forefront of a movement that is often targeted by the church, government and citizens of Uganda.
That day, Wamala joined the untold thousands forced to escape persecution because of their sexual orientation, many of whom come to Canada seeking asylum.
In 2018, the threats against Wamala’s life were intensifying. He started getting calls and texts from numbers he didn’t recognize. His office was raided by the Internal Security Organization, the counter-intelligence branch of the military.
He noticed he was being followed wherever he went – the licence plates would change but it was always the same two cars. “They were not even trying to hide it,” he recalls. He thought they would kill him.
When he asked them who “they” were and what they wanted, they told him, “You’ll find out when we get you.”
Wamala packed up what he could and went to stay at a friend’s house in another part of town.
One night his friend went to pick up some clothes for him and was confronted by two men. They wanted to know where Wamala was. They pushed his friend around while trying to pull him into their car. A neighbour broke it up before it got too violent.
Knowing he was endangering people he cared about was too much. “You feel like your whole world is crumbling down on you,” he says. “I genuinely felt like I was putting his life at risk.”
First, he had to come to terms with everything he was leaving behind: the pieces of a life that can’t fit into a suitcase and two carry-on bags. And he had to get through the security checkpoint.
“Where to, Dennis?” the agent asked.
“What’s good in Toronto?”
“I’m going for a meeting,” he said.
She scanned his fingerprints and handed him his passport. “Okay, have a nice flight.”
He couldn’t believe it. As he walked through the airport, he kept looking back over his shoulder, not yet ready to let his guard down.
At a bar near his gate, Wamala ordered a beer, finally able to relax. They called pre-boarding but he didn’t move. This is my last time in Uganda so I’m going to take my time, he thought.
He took a selfie – likely the last picture he would ever take on his country’s soil. Eventually airline employees told him he had to leave or he would miss his flight. He was the last to board.
While North Americans wave rainbow flags watermarked with corporate logos, it’s easy to forget that there are places where celebrating Pride is a matter of life or death, freedom or repression. And once in Canada, refugees can find themselves stuck in limbo, scrounging for work, a place to live and money to pay lawyers in the face of provincial cuts to legal aid.
Consensual same-sex relations are criminalized or illegal in 70 countries, according to statistics compiled in a 2019 report published by the International Lesbian, Gay, Trans and Intersex Association. And while many more countries may not outlaw same-sex relations, a further 55 countries offer no human-rights protections for LGBTQ+ people.
In Canada, there were 2,234 refugee claims based on sexual orientation between 2013 and 2015 – over 12 per cent of all claims during that period – according to a 2017 paper published in the Canadian Journal of Women and the Law. The same paper notes that women – particularly bisexual and lesbian women – are more likely to face violence from family members or spouses in their home countries. Of all the sexual-orientation-based claims, lesbians were the most successful and bisexual women were the least.
Overall, there has been a marked increase in refugees coming to Canada. As of March 31, there were 73,168 pending claims, up from 6,987 in 2013, a tenfold increase, according to Immigration and Refugee Board of Canada (IRB) statistics.
At a recent fundraiser hosted by Rainbow Railroad, a not-for-profit charity that has helped more 600 LGBTQ+ refugees come to Canada over four years, executive director Kimahli Powell told the crowd they received roughly 1,300 requests in 2018. He expects to surpass that number during Pride Month. Wamala was among the more than 200 people Rainbow Railroad brought to Canada last year.
In April, Premier Doug Ford’s government became the first in 15 years to cut funding to Legal Aid Ontario (LAO), slashing 30 per cent from the provincially funded agency that provides legal representation to low-income residents. The province also said LAO could not use provincial coffers for immigration and refugee cases. The agency now relies solely on federal funds, estimated at $13 to $16.5 million for this fiscal year, and will only help applicants fill out the initial paperwork known as a Basis of Claim form, and after that they’re on their own. Last year, the immigration and refugee program cost over $25 million.
Wamala made his claim just months before Ford’s cuts. He will be able to keep his lawyer.
The demands for LAO’s refugee services have been steadily increasing for years, according to their annual reports.
The Tories have previously called for the federal government to increase funding to Ontario for immigration and refugee services. According to 2018’s Auditor General report, the feds fund legal aid for refugee and immigration cases in other provinces at a higher rate than in Ontario.
Among Friends, the 519’s refugee and newcomer program, is the centre’s busiest program, says Becky McFarlane, senior director of programs and community services.
“The provincial government historically funded legal aid for refugees, and until they work out their business with the federal government… they should continue to fund it,” she says. “The consequence, in the meantime, is literally life or death for people.”
Demand is rising. The program saw 13 per cent more refugee claimants for one-on-one support between May 2017 and June 2018 and more than 8,90o people participated in settlement-related workshops and group sessions, nearly double than the year before.
On June 1, the federal government announced that it was expanding and extending the Rainbow Refugee Assistance Program, a cost-sharing program that aims to help with resettlement. Beginning next year, the Trudeau government will give up to 50 privately sponsored LGBTQ+ refugees start-up costs and three months of income per year.
This follows a proposal buried in the 2019 federal budget, which would bar refugees from making claims at the Canadian border if they had already made a claim in another country or had a previously unsuccessful claim in Canada.
Sean Rehaag, a leading expert in Canadian immigration and refugee law, says that this kind of logic – the “good refugee” who waits patiently for approval versus the “bad refugee” who shows up at our borders and ports – is common. The latter, he says, is viewed as a “threat to our sovereignty,” while the former is “someone who we want to help.”
“We [should] also be respecting international law and providing asylum to those who come here and request it.”
Rehaag says the provincial cuts will bog down the system with improperly filed claims. He has researched the success of lawyerless claims for years and they are significantly less likely to be successful than those with representation.
“We’re not saving any money. We’re just shifting where the money and resources go,” he says. “If you don’t have a lawyer, the process dramatically slows down.” He adds that the longer someone has to wait for their claim to be processed, the longer the government is on the hook for social services and housing.
Adrienne Smith, a Toronto-based immigration and refugee lawyer who specializes in LGBTQ+ claims, says cuts to legal aid is an age-old political tactic that turns refugees into pawns. There’s a patchwork of band-aid solutions, she says, but no one knows how the situation will turn out. Lawyers are scrambling to get new systems established – either pro bono or a pay-what-you-can arrangement (aka low bono).
“It’s terrifying to think that a refugee claimant who doesn’t know a lawyer who could provide low-bono representation or can’t get connected with the right community partners to get help is going to fall through the cracks and people will never hear about them.”
The real impacts of Ford’s cuts won’t be felt until this time next year, when the claims being filed now start being heard, she says. “You’re going to see a lot of unrepresented people next spring.”
In 1985, the Supreme Court of Canada ruled that refugees have a Charter right to justice and a hearing to determine their claim. But, unlike in criminal courts, there is no law that guarantees council in a hearing.
“The rights of refugee claimants are arguably more serious than someone facing criminal charges,” Smith says. “For our clients, they could be sent back to a situation of torture. Their life is at risk.”
“It’s such a visceral right that they’re asking for,” she says. “They’re asking for their life to be saved.”
Jose Luis Ruiz was stuck in legal limbo for six months while waiting for legal aid funding.>
His elementary teacher separated the girls from the boys in Cuautitlán Izcalli, a suburb north of Mexico City. When they stepped away, the boys circled 11-year-old Jose Luis Ruiz, saying, “You have a strange attitude.” They told him he wasn’t like the rest of them it was weird that he only played with girls.
They started touching his body and pulled down his shorts. “This is something you like,” they said. “This is something you want.” Ruiz was petrified, all he could do was cry.
After roughly five minutes, the teacher returned. She took his hands into hers. “This is your fault,” she said, before taking him to the principal’s office.
Every week for the next two years, Ruiz went to a psychologist on the recommendation of school administrators. Again, he was told that it was his fault that he needed to change. They said he was too feminine, gave him new toys and encouraged him to play with boys.
“It’s part of my life, yes, of course,” says Ruiz, now 34. “But, it’s okay, it’s in the past and that’s it.”
Riaz studied business administration in Mexico before coming to Canada on a one-year student visa in 2016 to improve his English.
Shortly after, he read about the 519. At the time he didn’t know it was a centre for the LGBTQ+ community. It was his first time being in one. It wasn’t long before he was a fixture there, spending time in workshops and volunteering.
Ruiz came out at the 519, something he never felt comfortable doing at home. “It was a very nice day for me,” he says.
Habibi Feliciano-Perez, a coordinator for the 519’s LGBTQ+ settlement program, says that he was drawn to Ruiz because of his personality and work ethic. “I just grew a really good connection with him.”
Before his visa expired, Ruiz applied for a work permit but was denied because he didn’t have a job offer. He had 90 days to decide what to do. It was a big decision: go home and hide his sexuality or try to stay in Canada and be himself. “I was scared,” he recalls. “If I take this process, I cannot go back to Mexico.”
Ruiz called his family to let them know his work permit was denied. He had never told them his orientation. Over the phone, 4,000 kilometres apart, Ruiz told his family he was gay.
“You are my son and your sexual orientation is not any problem for me, because you are my son as you are,” his mother said through tears.
Ruiz was also crying. Before telling them, he wasn’t sure how they’d react – if they’d be disappointed, sad or angry. “It was a beautiful moment,” he says.
Ruiz decided to make his claim and sought assistance from legal aid. He was told it would take five days to receive a decision.
Five days turned into two months. Two months turned into six.
“I was so sad,” he says. Without his family, stuck in bureaucratic purgatory, unable to work and illegal, he could do little more than wait.
Every two weeks, his parents called to ask the status of his application. The conversations were always the same. They’d ask if he was doing all right and send him money when they could. Riaz didn’t like taking their money, but there wasn’t much choice.
“I went out when I needed, not when I wanted,” he says. He had to save money and transit tokens for meetings with his lawyer or Feliciano-Perez.
It was “unbelievable” that Ruiz waited six months for his funding, says Feliciano-Perez, adding that he’s never seen anyone wait that long.
When people are in this type of limbo, they can be forced into the black or grey markets, explains Rehaag. And he says cuts to legal aid will only compound the problem. People still need money, even if they aren’t allowed to work until their claim is submitted. It can lead to greater victimization if they wind up owing the wrong people money.
“Refugee claimants don’t have access to the kinds of financial services many Canadians have,” Rehaag continues. “You can’t go to a bank and get a loan. If you’ve just arrived you don’t have any work experience, you don’t have a job, you don’t have any assets.”
After months of not knowing his fate, Ruiz was approved for legal aid funding last June. It kicked off a flurry of preparation – and more waiting.
On a rainy afternoon in May, 13 months after he decided to make a claim, Ruiz had a hearing at the IRB.
He was asked about his life in Mexico. Ruiz cried while recalling what happened in the schoolyard 23 years earlier, how he was blamed for it and the years of compulsory therapy. The adjudicator looked for a box of tissues. He asked Ruiz if he needed a break. “It was a good sign for me,” he says. “He’s a human, like me, because he was looking for a Kleenex. Not for him, for me.”
It’s not illegal to be queer in Mexico, and there are some legal protections, but the law’s application varies by jurisdiction. According to the U.S. State Department, many LGBTQ+ Mexicans face violence and sexual abuse at the hands of authorities.
After an hour and 15 minutes there was a break in Ruiz’s hearing. “At that moment, I didn’t understand very well what was going on,” Ruiz says.
When the adjudicator returned, he started checking Ruiz’s documents, letters from Mexico and statements from people at the 519. Then he wrote out Ruiz’s approval. “You’re a convention refugee,” he said.
Ruiz treated himself to a green tea from the Starbucks across the street while he waited for the written decision. Oh my goodness, he thought. This is real, I can stay here without stress. Now I need different goals because this goal is done.
Zizi Putra came to Canada as a refugee from Indonesia and is preparing to launch an app.>
Zizi Putra never told his mom his sexuality. He grew up in Bukittinggi, Indonesia, and came to Canada to study theatre in 2014, a pivot from the economics and computer science programs he studied at home. At school in North Bay, he finally felt comfortable enough to be honest about who he is.
Putra, 32, can’t go back to his home country. His mom got sick shortly after he was granted refugee status in July 2017. He had a crisis of conscience: give up his refugee status and go home to his dying mother and “be the son who people want to see, or “stay here so I can fulfill my life.”
Earlier this year, his mom died – without truly knowing her son. “I haven’t seen my mom’s grave,” he says. “That’s the most heartbreaking part for me.”
There is no federal law criminalizing LGBTQ+ people in Indonesia, but there is in Aceh province, where it is punishable by flogging under sharia law. But LGBTQ+ people face discrimination across the country. Many fear social repercussions associated with coming out. In Putra’s home province of West Sumatra, many cities have enacted legislation to outlaw being LGBTQ+. According to the U.S. State Department, queer Indonesians face violence, forced labour or therapy, or risk being confined to their houses by family.
One night after a party, one of Putra’s friends, after noticing he never talked with girls, casually said: “If you’re gay, you know I’m going to kill you, right?”
His survival instinct kicked in and he tried to joke around to shift his friend’s attention. “If you’re above the radar a little bit… if you’re not in the norm, people notice right away.”
Last October police started conducting raids and rounding up gay men in West Java province, where Putra went to university.
“When I moved [to Canada], I learned that you do have rights. You can love yourself the way you want,” he says. “I have to learn how to love myself – it’s kind of confusing at first.”
While many refugees struggle once approved to stay in Canada, Putra has thrived. He volunteers at the Hassle Free Clinic and he’s noticed an obvious problem: people never have their medical records.
He started asking the doctors he worked with if they noticed the same issue. (They had.) Now, he’s getting set to launch an app, Box Clinic, that allows people to keep vital medical documents in one place.
Putra was never ambitious in Indonesia. “I [was] afraid to become successful,” he says, adding he didn’t want to draw attention to his personal life and raise questions about marriage. “You become more popular in the singles market.
“Being a refugee also encouraged me to go bigger – to chase my dreams.”
It was cold when Wamala landed in Toronto.
“What brings you to Canada this time?” The customs officer asked.
“I’m here to stay.”
“What do you mean, you’re here to stay?”
“I’m here to seek refuge.”
The officer paused. “What does that look like?”
“You tell me,” Wamala answered.
After 45 minutes, the officer returned and said, “You know, I’ve been doing this a while and nobody has told me that. No one has come to me and told me, ‘I’m not going back.’”
They laughed at the situation: Wamala seeking refuge in Canada, and an officer who didn’t know what to do.
Wamala was interviewed, had his fingerprints recorded and his eyes checked he did a medical exam, got a caseworker and a lawyer. “Like a newborn baby,” he said.
As a bisexual man, Wamala may have a harder time in his hearing.
Bisexual people have the lowest success rate of all claims based on sexual orientation. A 2008 research paper written by Rehaag found bisexuals face “heightened scrutiny” at IRB hearings because they “present their sexual identities not as innate and immutable, but rather as flexible, fluid and contingent.”
Adjudicators have called bisexual folks “confused” or discounted their orientation entirely. In recent years, Rehaag says, the IRB has been given directives to avoid stereotypes and binaries, but there hasn’t been much direction on what they should be doing.
Researchers have tried to create tests to determine if someone’s being truthful about their orientation. None have worked, even in a clinical setting, Rehaag says. In a less-than-ideal laboratory, like a refugee hearing, the test results are abysmal. One such attempt was created by Stanford University researchers, who tried to use facial recognition software to determine someone’s sexual orientation, something that has been criticized for perpetuating stereotypes.
While none of the people we interviewed had difficulty finding housing, many refugees do. Scholarly research on the subject finds that affordability, especially after arrival, is a key factor in the success of a claim. One study found that about three-quarters of refugees in Toronto spend more than 50 per cent of their income on housing and 67 per cent reported being homeless (often staying with friends or some other type of support) at some point since arriving in Canada. Asylum seekers generally find it harder to find housing that privately sponsored refugees.
Those working in the field say that as claimants start choosing between paying for lawyers, rent or food, they may be forced into black markets or the shelter system.
Though many queer Ugandans like Wamala have been forced to leave the country, Kasha Nabagesera stayed. Nabagesera, who now runs a three-acre pig farm in addition to her advocacy, helped start one of the first -LGBTQ+ organizations in the country in 1999 and has become one of the de facto leaders of the movement.
She’s here visiting Wamala and to attend Pride in Toronto and New York City before heading home to ensure Pride in Kampala happens. There have been indications the government will crack down on any festivities. This year’s is especially significant – it is the 20-year anniversary of the movement.
For Nabagesera, a self-proclaimed “Pride fanatic,” the festival in North America is about unwinding and having fun. But, she says that it has strayed too far from its activist roots, from the fight against systemic oppression prevalent across the world.
There’s only one other person left in Uganda from the original group of activists. “It gets lonely.”
“Many activists who we invested in had to leave the country,” she says. “It caused a lot of space – a gap – in the movement. The damage, we are still feeling it up until today.”
Since moving to Canada, Wamala has made himself visible for the refugee cause. Like on June 1, at Rainbow Railroad’s $100-per-ticket Freedom Party fundraiser, and in May, when he spoke at the 2019 OPSEU Convention. He is featured in Am I Wrong To Love?, a photo exhibition on the LGBTQ+ refugee experience at Daniels Spectrum running to July 31.
People often thank him for the sacrifices he’s made. He doesn’t see them as sacrifices.
“I belong to the community, so I’m literally fighting for myself,” he says. “If you find yourself in a lake, the only option you have is to swim your way to the surface or die. It’s not courage, it’s survival.”