The Sunday drop-in lunch is a noisy event at The 519 Church St Community Centre in Toronto’s queer neighbourhood.
From behind the serving counter, Mahboob Ahmed smiles warmly. The 35-year-old fled his home in Pakistan last June and applied for refugee status here in Canada. He left behind his parents, wife and children, none of whom, he says, would accept his homosexuality.
He says his decision to flee came after rumours of his sexuality spread among his neighbours, he was attacked by a local militia group, and a religious cleric in his hometown issued a fatwa authorizing his death.
“This is my family now,” he says, of his friends at The 519. “My family back home does not support me. I live here and I will die here in my community. So I want to do something for my community here.”
Since arriving in Canada, Ahmed has become a member of The 519 and regularly attends meetings of a queer Muslim group. In a happy coincidence, he arrived in Toronto in the midst of last summer’s Pride celebrations and has a photo book of himself posing with various scantily clad street revellers. There’s also a series of photographs documenting his first ear piercing; something he was forbidden to do in Pakistan.
As a gay Muslim man from a country where homosexuality is criminal, Ahmed’s refugee claim has a good chance of being approved. But whether or not a claimant is awarded refugee status depends on a single hearing before a single adjudicator of the Immigration and Refugee Board (IRB). And in most cases, once the IRB has denied refugee status, a claimant has no avenue for appeal.
But if Bill C-280, tabled as a private member’s bill last year by Bloc Québécois immigration critic Meili Faille, becomes law, rejected refugee applicants will finally have the option to appeal IRB rulings to a proposed Refugee Appeals Division (RAD) of Citizenship and Immigration Canada.
In 2002, Jean Chrétien’s Liberal government drafted provisions for a RAD that would allow refugee claimants to appeal IRB decisions based on the facts and merits of their cases. The plan was included in proposed legislation that became the Immigration and Refugee Protection Act, but it was scrapped before the legislation became law.
The subsequent Liberal government argued that a RAD would have added five months of processing time and social benefits costs to each of the approximately 19,000 refugee claims that were rejected in 2004. That government also argued that so-called “genuine refugees” would be denied justice by a slower, backlogged system.
But advocacy groups believe a RAD will lead to greater consistency in how IRB decisions are made, which would help queer and trans refugees who happen to be assigned to unsympathetic adjudicators.
“There is homophobia out there. There are prejudices and different levels of awareness,” says Janet Dench, executive director of 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.”
Dench calls the current hearing process “a lottery for claimants” because the IRB works on an arbitrary case-by-case basis in which precedent plays no role. She believes a RAD would create greater consistency in the hearing process.
The absence of an appeals mechanism isn’t the only obstacle facing queer refugees looking for asylum in Canada.
The IRB has been admitting fewer refugees overall than it used to.
In 1989 Canada’s refugee acceptance rate was nearly 83 percent, but by last year that number had declined to 47 percent.
The rates for acceptance of refugees fleeing persecution because of sexual orientation or gender identity are unknown because the IRB does not keep statistics on claimants’ reasons for fleeing their native countries. But successful applications even from places such as Iran and Pakistan have also been in decline. Since 2000, the acceptance rate for Pakistani claimants has dropped to 41 percent from 61 percent.
Why the drop-off?
“There was this sense that something was wrong with our system because our success rate was higher than everybody else’s,” says El-Farouk Khaki, an immigration lawyer who specializes in refugee claims based on sexual orientation.
Khaki says the IRB tends to be more sympathetic to queer claimants, like Ahmed, from countries where homosexuality is illegal, but cases involving applicants from countries like Mexico are more tenuous.
While some Mexican cities have a thriving queer nightlife and the country allows same-sex civil unions, groups like Human Rights Watch and Amnesty International have criticized the Mexican government for falling short on enforcing its own human rights policies.
“We need to look beyond what social advances have been made to the overall human rights situation to see how rights have improved for gay people,” says Khaki. “Most Latin American countries have amazing constitutions, but that doesn’t mean [they are] enforced.”
In 1989 the acceptance rate in Canada for Mexican refugees was 67 percent. By the end of 2006 it had dropped to 28 percent.
IRB spokesperson Charles Hawkins says that for countries where laws and attitudes are becoming more progressive, a refugee claimant must prove he is likely to be exposed to serious harm if he were returned to his country of origin.
“In order for a refugee claim to be successful, the objective situation must be such that there’s a well-founded fear of persecution,” he says.