Gay refugees have difficulty proving they're gay
By Tiffany Crawford
Canwest News Service
Published: Saturday, March 15, 2008
The Canadian Refugee Board needs to establish clearer guidelines on sexual orientation to help adjudicators avoid stereotyping gay and lesbian refugees who have little proof they are gay, say legal experts.
Last week MP Thomas Mulcair exploded at hecklers in the Commons and later shed tears at a news conference after Immigration Minister Diane Finley refused to allow Canada's latest gay refugee claimant Kulenthiran Amirthalingam stay in the country on compassionate grounds. He later told the Montreal Gazette that he had seen a disturbing video depicting the kind of brutal punishment gay men receive in Malaysia, including strapping a naked man until raw flesh was exposed.
Amirthalingam, who is now back in Malaysia where he spent time in jail for being gay, was declared not credible by the one-adjudicator panel. He joined a growing list of refugee claimants who have been rejected because they can't prove they are gay.
Amnesty International is keeping an eye on Amirthalingam but a spokeswoman says even if he is thrown back in jail the odds of him getting help from Canada are slim.
“Where a person is being persecuted for their very identity they should be granted protection, but it often is not the case here,” said Gloria Nafziger, a refugee co-ordinator for the organization. “If the testimony is not credible everything goes out the door.”
Michael Battista, a Toronto lawyer who has expertise in dealing with gay and lesbian refugee claims, says the problem is there is no consistency of analysis. If claimants have pictures of themselves at a gay pride parade, proof of participating in online gay-chat rooms or witnesses who can testify they have had gay partners, then the adjudicator has some evidence.
But there are no clear guidelines to follow if the applicant has little proof.
“We have guidelines for gender (and) race, but for the last 17 or so years that (gay and lesbian) claimants have been seeking refugee status there have been no guidelines for sexual orientation,” said Battista.
Battista said he has seen cases rejected because the person had children or was married.
“Saying that this is not how a gay or lesbian person would behave is a stereotype,” he said.
For decades gay and lesbian Canadians have held splashy pride parades and won rights to marry their same-sex partners. But for others in the more oppressive parts of the world, open displays of affection for someone of the same sex could find them jailed, tortured and even killed.
For these people this expected punishment leads to a lifetime spent covering their tracks.
Those who flee to Canada to seek refuge face one very tough question in Canada: How can you prove that you are gay?
With no witnesses, photographs, love-letters or other documents indicating a gay lifestyle, refugees are often left showing up before the refugee board acting flamboyant or acting on other gay stereotypes.
“This is silly and demeaning,” says Suhail Abualsameed, who works with Supporting Our Youth, an organization that helps young gay immigrants and refugees in Toronto. “Not all (gay people) are like this,” he said.
Social workers send Abualsameed young refugees and he helps them get involved in the gay community by meeting people and having relationships to build a portfolio of documented proof.
“I was at a refugee hearing and the judge was grilling me saying how do you know he is gay? And I say I have seen him go to gay activities.”
“How do I know, short of me having sex with them? I can only tell them what I see.”
But often witnesses and letters are dismissed as hearsay and claimants are accused of fabricating lies to stay in Canada.
Abualsameed has been working with Alvara Orozco, 22, a gay Nicaraguan youth who is still in hiding in Toronto after losing his last bid to stay in Canada.
Orozco fled Nicaragua, which outlawed homosexuality in 1992, after fearing for his life. He says he was violently abused by his father because of being gay.
Orozco was ordered deported Oct. 4, 2007, but has been hiding out with friends in the Toronto area.
The adjudicator said that Orozco was not gay and accused him of lying about his sexual orientation to stay in Canada. He was told his case was not credible because he had no significant relationships while he was in the U.S.
Orozco fled at the age of 12. He said it was difficult to have a relationship in his early teenage years because he was so young. He also says that he was homeless and found refuge in Catholic missions where he had to hide his sexuality for a fear that severely dogmatic church leaders would turn him away.
He is pleading for Finley to step in on compassionate grounds.
“He is so depressed,” said Abualsameed. “There is very little hope.”
Rarely are appeals on compassionate grounds successful. Many experts feel that one adjudicator with no judicial appeal system, particularly in cases where homophobia might be a problem, is unfair. A failed refugee claimant can pursue a judicial review, in which a Federal Court judge determines if there were any legal mistakes but not whether the board member came to the right decision.
“I've seen (adjudicators) who are very clearly homophobic,” said Abualsameed. “They are trained to be unbiased but they don't always adhere to the principles we expect.”
A spokesman for the Immigration and Refugee Board insists that adjudicators are trained to minimize stereotypes.
“Our training makes members aware that they must avoid stereotypes or mannerisms or types of speech,” said Stephane Malepart.
“It's difficult because there is no uniform way they act on their sexual orientation.”
Malepart could not say why sexual orientation did not have its own set of guidelines but rather falls under “other particular social group.”
“I can't comment on that because it would mean that the law needs to be changed.”
In Canada a refugee falls into categories grouped as religion, nationality or membership of a particular social group or political opinion.
It is the “particular social group” that experts feel should be expanded to a separate category for sexual orientation.