Envisioning LGBT Refugee Rights in Canada: The Impact of Canada’s New Immigration Regime June 2014 Acknowledgements This report was written by Rohan Sajnani. It is an initiative of Envisioning Global LGBT Human Rights in partnership with, and with support from, the Ontario Council of Agencies Serving Immigrants and Rainbow Health Ontario. This project has been made possible by a Community University Research Alliance Grant of the Social Sciences and Humanities Research Council of Canada and through the generous support of Envisioning Global LGBT Human Rights partners. Special thanks to Erika Gates-Gasse and Nick J. Mulé, co-chairs of the Canada Research Team, and Envisioning’s Principal Investigator, Nancy Nicol This report was truly a group effort. Thanks to all members of the Canadian Research Team Asylum Working group: Nick Mulé, Erika Gates-Gasse, Kathleen Gamble, Anna Travers, Phyllis Waugh, Nancy Nicol and Paulina Wyrzykowski. The author would also like to thank the experts who were interviewed for this report: Michael Battista, Aamer Esmail, Neil Grungras, Michaela Hynie, Nicole LaViolette, Rupert Raj, Jothi Ramesh and Sean Rehaag. Thanks to Envisioning’s Canada Research Team partners: Africans In Partnership Against AIDS, Alliance For South Asian AIDS Prevention, Black Coalition for AIDS Prevention, Egale Canada, Ontario Council of Agencies Serving Immigrants, Rainbow Health Ontario, The 519 Church Street Community Centre. Report: http://envisioninglgbt.blogspot.ca/p/publicationsresources.html Envisioning Global LGBT Human Rights Centre for Feminist Research, York University Email: [email protected] Website: envisioninglgbt.com Table of Contents Introduction . 4 Canada’s International Obligations . 6 1951 Convention and 1967 Protocol Relating to the Status of Refugees ........................... 6 2007 Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity ..................................................... 7 2008 United Nations General Assembly Declaration supporting LGBT Rights ..................... 7 2011 United Nations Human Rights Council Resolution .......................................... 7 UNHCR 2008 Guidance Note leading to 2012 Guideline on International Protection No. 9 ......... 8 General Principles and Jurisprudence Relating to LGBT Asylum Seekers in Canada . 10 Canadian LGBT Refugee Jurisprudence . 10 Legal Test: Well-Founded Fear on the Basis of an Enumerated Ground ...........................11 The Effect of “Particular Social Group” as the Predominant Established Ground for LGBT Asylum Claims .....................................................................11 Recent Federal Court Jurisprudence ............................................................12 The 2012 Changes to Canada’s Immigration Regime and Their Impact on LGBT Asylum Seekers . 13 Generally Anti-Refugee for All ..................................................................13 Bill C-31’s Legislative History and Impact .......................................................13 Criminality ....................................................................................14 “Irregular Arrivals” and Designated Foreign Arrivals ...........................................14 Designated Countries of Origin .................................................................15 Shorter Timelines and Proving Identity ........................................................17 New Refugee Appeals Division .................................................................18 Humanitarian and Compassionate grounds and Pre-Removal Risk Assessments .................20 Decision Makers, Stereotyping and Credibility Assessment .....................................21 Legal Aid . 23 Resettlement and Sponsorship . 24 Types of Resettlement Sponsorship .............................................................25 Resettlement Barriers for LGBT Asylum Seekers ................................................26 LGBT Resettlement, Community and Wider Asylum Advocacy ...................................27 Refugee Health Care . 29 2012 Interim Federal Health Program Cuts .....................................................29 Provincial Coverage in 2013 ....................................................................29 The Right to Health ............................................................................30 Mental Health .................................................................................31 Mental Health Trends Among LGBT Asylum Seekers ............................................31 Conclusion / Recommendations / Information Sheets . 33 Works Cited . 35 Envisioning LGBT Refugee Rights in Canada: The Impact of Canada’s New Immigration Regime 3 Introduction This report is an initiative of Envisioning Global agencies serving LGBT refugees. It discussed the LGBT Human Rights, an international research experiences of clients and the challenges they project involving 31 community partners face with the refugee determination process and in 12 countries, working to advance social accessing services. One “Action Item” arising from justice, equality and global human rights for the roundtable called for a better understanding lesbian, gay, bisexual and transgender (LGBT) of the impact of changes to Canada’s immigration people. Envisioning is focused on research and and refugee policy (Envisioning Global LGBT analysis of the criminalization of LGBT people Human Rights, p. 12-13). The present report in Commonwealth countries and resistance to attempts to address this “Action Item”. The 2012 criminalization, one aspect of which is to seek document anticipated the legislative changes in asylum elsewhere. The project also confronts the Act, while the present document examines legal barriers and strictures to the advancement and responds to them. of human rights for LGBT individuals and communities. Envisioning emphasizes the The report begins with an examination of Canada’s international obligations, regarding and developing research goals and the co- both asylum seekers and LGBT persons. productioninvolvement of of knowledge. community Envisioning partners in is defining housed International standards bear particularly at the Centre for Feminist Research, York heavily on this issue due to the nature of refugee University, Toronto, Ontario, Canada and is law, as it pertains to inter-state forced migration, supported by a Community University Research and the polarization regarding the rights of Alliance grant from the Social Sciences and non-traditional sexual and gender expressions Humanities Research Council of Canada and around the world. Second, the report examines through the generous support of partners. This Canadian refugee jurisprudence and standards report is also jointly funded by the Ontario regarding LGBT asylum seekers. These claims Council of Agencies Serving Immigrants and have a history of relying on certain notions Rainbow Health Ontario, who are community of sexuality and gender identity, notions that partners of Envisioning. animate and underpin many of the latent issues in this area of law and policy. Third, the report This report focuses on the impact on LGBT examines the changes to Canada’s refugee laws asylum seekers in Canada of Bill C-31, which under the new Act, and the particular impact took effect in December 2012, now in force as of these changes on LGBT asylum seekers. the Protecting Canada’s Immigration System Act This analysis understands the new regime as (“the Act”). The analysis is based on research decidedly anti-immigrant and anti-refugee gathered between October 2013 and June 2014, on the whole. Moreover, certain mechanisms as well as information from interviews with key within it pose particular problems for LGBT informants, including lawyers, academics and asylum seekers owing to their unique cultural service providers who specialize in LGBT asylum position, identity processes including erasure, issues. This report follows Envisioning’s June and widespread marginalization. Fourth, the 2012 preliminary report entitled “Envisioning report examines resettlement and sponsorship LGBT Refugee Rights in Canada: Exploring of refugees who are unable to reach Canada Asylum Issues,” written by Nick Mulé and Erika without support. This examination reveals Gates-Gasse. (Envisioning Global LGBT Human the ability of government sponsorship, but Rights, 2012). That report was based on a not private sponsorship, to provide certain roundtable with a diverse group of Toronto-based benefits, such as mental health coverage; this Envisioning LGBT Refugee Rights in Canada: The Impact of Canada’s New Immigration Regime 4 ability should inform government sponsorship Terminology with regard to sexual orientation grants. It also exposes the present Conservative or gender identity is complex, with historical, government’s disingenuous use of the regional, cultural, class and activist implications. resettlement program to off-load governmental This report, in line with the Envisioning project responsibility to provide international and many activists and human rights workers protection onto civil society. Finally, the report internationally, uses the terms lesbian, gay, examines refugee health care and the recent bisexual and transgender (LGBT). “Queer” and cuts to the Interim Federal Health Program. “sexual and gender minorities” also appear as There are serious human rights implications umbrella words. The use of LGBT/sexual and of these cuts, including maternal