Letter to Immigration Minister Hon. Jason Kenney

The Honourable Jason Kenney
Minister of Citizenship and Immigration
Ottawa, Ontario

April 23, 2010

Re: Proposed changes to the Immigration and Refugee Protection Act

Dear Hon. Minister:

Rainbow Refugee Committee is a Vancouver based community group that has been supporting and advocating on behalf of refugee claimants who have fled persecution based on sexual orientation or gender identity (SOGI) since 2000. We are writing to request a meeting with you in order to discuss the proposed Bill C-11 reforms to Canada’s refugee determination system.

Some aspects of Bill C-11 are promising. We welcome the long-awaited implementation of the Refugee Appeal Division. We will be pleased to see concrete steps towards adequately funding the refugee determination process. We agree with Bill C-11’s goal of reducing the time claimants spend in uncertainty.

However, based on a decade of on the ground experience with refugees who are making SOGI-based claims, we are deeply concerned about other aspects of the proposed legislation. 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—increasing costs and leaving claimants in uncertainty longer.

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.  The proposed reforms, to be effective, must ensure reasonable access to legal council.
We are also concerned about the impact preventing the RAD from considering humanitarian concerns while also banning failed claimants from submitting an H&C application or PRRA for 12 months. Humanitarian consideration is an important means of protecting people who are in danger, but whose circumstances do not meet the criteria of Convention Refugee.  This is often the case 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.

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.

These are some of our concerns with the proposed Bill C-11. We therefore request a meeting with you to express our concerns in more detail and suggest some amendments to Bill C-11. We join other organizations like the Canadian Centre for Victims of Torture and the Canadian Bar Association in  urging you to send the Bill to the Parliamentary Standing Committee on Citizenship and Immigration for consultations so that other organizations can make suggested changes to the Bill.

Honourable Minister, we appreciate your efforts to improve Canada’s refugee determination system. We also urge you to take the perspectives of organizations that work closely with refugees into consideration in your reform efforts. Failing to consult with organizations with on the ground experience could result in unworkable policies that undermine your goals of fairness, effectiveness and efficiency.
We look forward to your response.

Sincerely,

Rainbow Refugee Committee

@Qmunity, 1170 Bute St

Vancouver BC

info@rainbowrefugee.ca

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