Refugees’ rights advocates say a law proposed by the Harper government will increase the likelihood that gay asylum seekers will be rejected, deported or imprisoned.
“C-31 is designed to make Canada quite an unattractive option for people seeking protection. And it certainly will make it very difficult for anyone, whether or not they have good grounds for protection, to have their claim fully and thoroughly assessed,” says Lesley Stalker, a former legal officer for the United Nations Commissioner for Refugees, who addressed a May 30 forum on the bill in Vancouver.
Under the new process, claimants from designated “safe” countries of origin would face accelerated timelines and be denied the right to appeal a decision. Sharalyn Jordan, of the Rainbow Refugee Committee, decries the designated country provision as profoundly unsafe for queer refugee claimants.
“A list cannot accommodate the current complexity and flux in protection and persecution for LGBTQ people,” she says. “For example, the Ukraine has an elected parliament, an independent judiciary, and civil society organizations. Based on Bill C-31, it could be designated, and yet this week its parliament is considering a law banning speech or writing that promotes homosexuality, and neo-Nazis are attacking LGBTQ people in the streets of Kiev.”
A country may be designated for rapid processing without appeal if the minister of citizenship and immigration believes it has an independent judicial system, recognizes basic democratic rights and freedoms, and makes available a mechanism for redress, and if civil society organizations exist.
“South Africa recognizes same-sex marriages, yet there are 10 cases a week there where lesbians have been targeted for corrective rape and police have done nothing to investigate,” Jordan says. “It’s precisely when country conditions appear safe on paper that LGBTQ decisions are the topics and the safety net and appeal is most critical.”
“A life-or-death decision should never rest in one person’s hands,” she adds, questioning the lack of appeal proposed by the new bill.
Expected to pass by the end of June, Bill C-31 would amend four existing pieces of legislation to provide faster protection to those believed by the government to genuinely need it, while deporting ”bogus” refugees more quickly.
C-31 would give claimants 45 to 60 days from their initial screenings to their final hearings, depending on their countries of origin, and at most 50 days to submit all corroborating evidence 10 days before their final hearings. Currently there is no time limit on the process.
Jordan stresses that it is very difficult for gay claimants in particular to prepare and corroborate evidence within this timeframe. She notes that proving a claim often involves tracking down ex-lovers for letters, as well as obtaining medical and police records from countries and societies that may be very hostile to gay people. She also says it can take time for gay refugees to divulge traumatic life experiences to government officials.
“Undertaking an asylum application entails accessing and working within a refugee system that was not designed with lesbian, gay, bi, trans or queer refugees in mind — requiring claimants to prove an often hidden and stigmatized identity and to disclose experiences that are often traumatizing and deeply private,” Jordan says.
“Bill C-31 will benefit genuine refugees who are persecuted because they are a LGBTQ person, as they will receive Canada’s protection in a matter of a few short months, compared to the current system in which they must wait an unacceptable two years,” counters Ana Curic, spokesperson for Immigration Minister Jason Kenney.
“It is also important to note that under Bill C-31, the independent IRB [Immigration and Refugee Board] has the ability to delay a hearing if they feel that a claimant requires more time to prepare for their hearing,” Curic points out.
Bill C-31 would also place restrictions on asylum seekers the minister deems “irregular,” including people suspected of human smuggling or affiliation with a criminal organization or a terrorist group. If the government is unable to establish a claimant’s identity in a timely manner, they would also be deemed “irregular” and sent to detention.
“The detention would be for a period of 14 days,” Stalker says. “They would have a detention review and would then presumably [be] remanded back into detention because nobody is going to get out after 14 days under the circumstances. We are looking at massive detentions, and detention takes place in correction facilities in British Columbia. In some cities, Montreal and Toronto, they have facilities specifically for migrants.”
“The idea of establishing identity is an added burden and one that most particularly, I would argue, most impacts queer and trans refugees,” says Harsha Walia, of No One Is Illegal, who also spoke at the forum. “For queer and trans folks, within two weeks, somehow miraculously from jail, they are going to have to procure all these identity documents. Particularly for trans folk it will be incredibly hard to obtain these documents.”