We have almost a decade of experience with QLGBT refugee claims. From this we see potential positives and problems with the reforms proposed under Bill C-11.
Some aspects of Bill C-11 are promising.
- We welcome the long-awaited implementation of the Refugee Appeal Division.
- We are pleased to see a willingness to fund the refugee processing system after many years of underfunding.
- We agree with Bill C-11’s goal of reducing the time claimants spend in uncertainty.
We are deeply concerned with other aspects of the reform.
68 day time-line is unrealistic, and may undermine fairness.
Our members have fled countries where they have been under surveillance, arrested, imprisoned, extorted, and for some, tortured, because of their sexuality or gender identity. Many have been physically and/or sexually assaulted, often by police or other officials charged with maintaining religious or morality laws. Survival has required keeping silent, being vigilant and remaining hidden.
Asking people who have left these conditions to tell their story to an anonymous government official within eight days, and then holding a hearing within 60 days undermines their chance for a fair decision. People who have lived a stigmatized identity and who have experienced trauma, need time and trust before they can speak about their experiences. Without adequate time or trust, applicants may leave out information that is critical to their case because shame or fear prevent them from speaking about their experience. We are worried that claimants will be unfairly prejudiced under these conditions.
Fair and effective refugee decisions require good evidence. Proving a sexuality that you have kept secret in order to survive is extremely challenging. Documenting sexuality-based claims requires retrieving records and photos that are often difficult to track down. It requires asking for letters from former partners who may be reluctant to write an official letter naming their own sexuality. Proving a gender-identity based claim requires providing extensive psychological and medical reports. We know people who have been sent back to harm because they have been unable to prove their sexual orientation or gender identity. Two months is nowhere near enough time for claimants to produce sufficient documentation. We fear the vast majority of SOGI-based claimants will be inadequately prepared for hearings, resulting in poor decisions and unfair rejections. Holding hearings with insufficient evidence will result in more appeals. This undermines the goal of faster processing times—
Access to good legal council is critical for fair decision-making for all claimants. It is particularly important for SOGI-based claims because no standard guidelines exist for how to prove an LGBT identity. We have seen claimants rejected because they lacked adequate representation, and unrealistic standards of proof were applied. With current Legal Aid systems, 8 days is not enough time to obtain a lawyer. For those that do have council, the reforms leave it unclear what role they will have at the 8 day interview.
Independent Decision Making is potentially compromised.
Currently refugee decision makers are appointees. Under C-11 the Immigration and Refugee Board will be staffed by civil servants. We are concerned that this undermines independent decision making. We agree that the current appointment process is cumbersome and ineffective, but C-11′s solution potentially politicizes refugee decision-making.
Not allowing Humanitarian and Compassionate consideration undermines fairness.
Currently, claimants have the option to make a Humanitarian and Compassionate application either before or after a negative refugee decision.C-11 takes the option of an H&C application away. At the same time, it prevents the Refugee Appeal Division from considering Humanitarian and Compassionate factors.
Humanitarian consideration is an important means of protecting people who are in danger, but whose circumstances do not meet the criteria of Convention Refugee. The threshold for refugee protection is very specific: to be granted refugee protection people have to demonstrate a well-founded fear of persecution. They must show that they cannot be safe in another part of their country, and that their state government is unwilling or unable to protect them.
The Humanitarian and Compassionate application has been an important safety net for people fleeing homophobic or transphobic violence in countries where protection for LGBT persons is uneven and hard to access. Preventing humanitarian reasons from being considered will result in people being sent back to very real harms.
The safe country list undermines fair access.
Finally, we are wary of the provision for a safe country list. Extreme forms of homophobic and transphobic violence often co-exist with constitutional protection for LGBT people on paper, particularly in newer democracies. In these situations, a person’s socioeconomic status and social networks determine whether protection is viable. Denying access to a full process based on country of origin alone undermines fairness. Mexico is a country that has been mentioned as a potential country on the safe country list. Issues of state protection in Mexico are complex–yes, in Mexico City same-sex marriage is legal, but this does not necessarily protect a trans person or lesbian woman from a poor family from police harassment or gang violence. QLGBT claimants need access to a full hearing and appeal regardless of nationality.