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Queer refugees face lottery system

Rejected refugee applicants will be able to appeal negative decisions if a private member’s bill calling for the implementation of a refugee appeals division (RAD) becomes law.

Advocacy groups believe the bill would lead to greater consistency in how decisions are handed down, which could help queer and trans refugees who have been assigned to unsympathetic adjudicators.

“There is homophobia out there, there are prejudices and different levels of awareness,” says Janet Dench, executive director of Montreal-based lobby group The Canadian Council For Refugees. “If you happen to get an adjudicator who is not so sensitive, with a refugee appeals division you’d have some chance to correct that wrong.”

Bill C-280, tabled last year by Bloc Québécois immigration critic Meili Faille, is expected to go up for second reading in Parliament this month. Bloc and NDP MPs are expected to support the bill, but the legislation’s survival will ultimately depend on the Tories or the Liberals; neither party has announced a firm policy on an RAD yet.

In 2002 Jean Chrétién’s Liberal government initially included a refugee appeals division in the proposed legislation that became the Immigration And Refugee Protection Act. The division was supposed to balance out the move to cut the number of adjudicators on individual hearings to one from two, but the provision was scrapped before the legislation became law. Subsequent promises by then-immigration minister Denis Coderre to revive an appeals process were not kept.

The previous Liberal government has argued that implementing the RAD would be costly and time consuming. For the approximately 19,000 claimants rejected in 2004, for example, it would add five months on to the process to allow for appeals, and force the government to pay health benefits for failed applicants during that period, increasing the strain on social assistance budgets. That government also argued “genuine refugees” would be denied justice by a slower, backlogged system.

Amnesty International and the UN High Commissioner For Refugees have since criticized Canada for not allowing refugees to appeal negative decisions on merits.

As proposed by Bill C-280, the RAD would be a “paper-only” process and would not involve a hearing. Decisions would be reviewed for factual or legal mistakes. No new information would be introduced.

Dench calls the hearing process “a lottery for claimants” because the Immigration And Refugee Board deals with applicants on a case-by-case basis without referring to precedents. If an appeals division is established, she believes it would create greater consistency in the hearing process.

Leonardo Zuniga, a 24-year-old gay man from Mexico, applied to become a refugee in Canada in 2005 on the grounds that he would face persecution for his sexuality if he returned to his country of origin. He was denied refugee status last year after the adjudicator decided he had an “internal flight alternative” — that is, he could move to Mexico City and live openly without fear of discrimination.

Zuniga rejects the characterization of Mexico’s capital as a gay-friendly haven; an appeals process would give him another chance to stay in Canada as a refugee.

But because the appeal process would establish precedents, it could also work against him and any other gay Mexicans applying for refugee status.

“If the appeals process says there is always a protection mechanism for gay people in Mexico, then future claimants would be up against that,” says Dench.