Reforms introduce new challenges for gay refugees

Lesbian, gay, bisexual, and transgender claimants could lose out under a plan to speed up the refugee determination process, according to a leading immigration lawyer.

Michael Battista, a partner at Jordan Battista LLP who often deals with refugee claims based on the grounds of sexual orientation and gender identity, said plans to cut wait times for a hearing at the refugee protection division of the Immigration and Refugee Board to just 90 days from around 18 months will make it even more difficult for claimants to prove their case and get proper representation.

The changes are being implemented as part of the Balanced Refugee Reform Act that went into law in June 2010.

The new legislation also introduces a new interview to gather information to take place within 15 days of the asylum claim to replace a written form that could previously be returned within 28 days.

“My fear is the quality of decision-making will be undermined, and that’s a real challenge for us,” Battista told an audience at the Law Society of Upper Canada on June 23.

“Refugee decision-makers are constantly and relentlessly under pressure to deliver faster and faster decisions. There’s nothing wrong with speed, except at a certain point you get a bit concerned about the quality of decision-making. We’re not producing widgets here at a factory.

“And it’s going to compromise the fundamental right to legal counsel. They will proceed on these timelines regardless of whether the claimant’s counsel of choice is ready or not.

They’re going to go ahead and schedule the interviews or the hearings and say to the claimants it’s up to you to find someone or not.”

Battista was part of a panel discussing the legislation as part of Pride week celebrations in Toronto.

Lisa Gore, who provides services for newcomers at the 519 Church Street Community Centre, said that refugee claimants from countries like Iran, where persecution of lesbians and gays is well documented, may benefit from the new rules.

But she noted those from countries without such a clear record may need more time to put their case together.

A refugee claimant herself from Jamaica, her case took 18 months to reach the hearing stage. “I think we’ve gone to the other extreme, from 18 months to 90 days,” she said.

“For a claimant to assist an attorney making the case, they have to provide evidentiary proof of their personal persecution. That amount of time to put that all together is quite difficult.”

According to Battista, many claimants also struggle with convincing adjudicators that they do in fact fall into that category. “I think there’s paranoia around LGBT claims,” he said.

“It makes decision-makers very nervous because there’s no membership card, nothing that we can come forward with to show that we’re LGBT.”

Battista noted it’s not uncommon for clients to be asked for letters of support from groups such as the 519 community centre as the closest approximation to a membership card in the gay community.

“That’s a huge problem. It’s sort of a downloading of the decision-making responsibility onto a community agency. It’s a disturbing trend.”

Gore said the centre has formulated a policy for support letters in order to cope with the number of requests it receives. Now just one in 10 requests is successful.

“We are using a very stringent set of criteria to determine who gets a letter,” she said, noting her concern about how many claimants struggle to integrate themselves into the gay community quickly. Others may be unwilling to express themselves publicly if they’ve previously been the subject of abuse or torture on the basis of their sexuality.

Arsham Parsi, who runs the Iranian Railroad for Queer Refugees, said he’d like to see the refugee board crack down on false claimants.

He pointed to the experience in Britain, where there had been a large number of refugee claims on the basis of sexual orientation after 2000. But after a number of claimants were later found to be straight, virtually all cases citing sexual orientation were unsuccessful, Parsi noted.

“Right now, we have lots of gay people going to the U.K. and after a few weeks being rejected because of the previous reports. We don’t want to have these kinds of cases in Canada,” he said.

Sam Laredo, the interview working group leader at the refugee board, said interviewers and adjudicators will receive sensitivity training on issues related to lesbians and gays and factors to look out for in determining a case.

“The absence of those will not necessarily indicate the conclusion that the individual is not a gay or a lesbian,” he said. “It is very difficult. It’s always an assessment of credibility and it requires quite a bit of training and sensitization. That’s our challenge and we try to meet it.”

Laredo said the faster timelines would help tackle the board’s longstanding backlog of cases and enable meritorious claimants to get a speedier hearing so they can get on with their new lives in Canada.

“It’s absolutely horrendous to wait for a decision and put your life on hold. We as an organization have a vested interest in ensuring we can move these cases quickly through the system.”

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