Independent human rights documentation and sexual minorities: an ongoing challenge for the Canadian refugee determination process

Abstract

Sexual minorities must meet the same evidentiary burden as all other refugee claimants. Independent country information produced by international human rights organisations plays an important role in meeting this burden. However, in the case of gay, lesbian, bisexual, and transgender claimants, existing country documentation still fails to provide the kind of information refugees need to support their claims. This is due to the continual struggle of human rights organisations to properly document abuses against sexual minorities. Also, the legal questions most relevant to claims based on sexual orientation and gender identity have shifted over the last 15 years. Early cases turned on whether a claimant's fear of persecution was well founded or whether the claimants were able to prove their sexual orientation. Recent cases have focused on the distinction between persecution and discrimination, the availability of state protection, and possible regional contrasts in the treatment of sexual minorities within a country. The shift in legal issues requires evidence that is either not available or is not sufficiently focused or detailed to meet the legal requirements of the Canadian refugee determination process.

Keywords:

• refugee law
• human rights organisations
• sexual minorities
• sexual orientation
• gay and lesbian
• Canada

Acknowledgements

The author wishes to thank Marie-Clode LaRocque and Stephen Hug for their invaluable research contributions and their meticulous editing assistance. The author gratefully acknowledges the financial support of the Law Foundation of Ontario and the Faculty of Law of the University of Ottawa.

Notes

‘Gambia Gay Death Threat Condemned’, BBC News, 23 May 2008, http://news.bbc.co.uk/2/hi/africa/7416536.stm (accessed 29 November 2008); ‘President Plans to Kill off Every Single Homosexual’, Afrik.com, 19 May 2008, http://en.afrik.com/article13630.html (accessed 29 November 2008); Human Rights Watch, ‘Gambia: President Should Disavow Reported Homophobic Threats’, http://www.hrw.org/english/docs/2008/06/10/gambia19089.htm (accessed 29 November 2008).

Human Rights First, Homophobia: 2007 Hate Crime Survey (New York: Human Rights First, 2007), 5–6, http://www.humanrightsfirst.info/pdf/07601-discrim-hate-crimes-web.pdf (accessed 29 November 2008); IGLHRC, ‘IGLHRC Condemns the Violence at Moscow's Gay Pride Rally’, press release, 30 May 2007, http://www.iglhrc.org/site/iglhrc/section.php?id=5&detail=733 (accessed 29 November 2008); and Kent Coolen, ‘Moscow Pride Organizers Outwit Opposition’, Xtra!, 4 June 2008, http://www.xtra.ca/public/viewstory.aspx?Aff_TYPE=1&STORY_ID=4877&PUB_TEMPLATE_ID=1 (accessed 29 November 2008).

Human Rights Watch, ‘Kyrgyzstan: Halt Anti-gay Raids’, http://hrw.org/english/docs/2008/04/17/kyrgyz18570.htm (accessed 29 November 2008).

Human Rights Watch, ‘Jamaica: Shield Gays from Mob Attacks’, http://hrw.org/english/docs/2008/02/01/jamaic17957.htm (accessed 29 November 2008); Krishna Rau, ‘Fleeing for My Life’: Jamaican Activist Seeks Refuge in Canada’, Xtra!, http://www.xtra.ca/public/viewstory.aspx?AFF_TYPE=3&STORY_ID=4387&PUB_TEMPLATE_ID=2 (accessed 29 November 2008).

Amnesty International, ‘Uganda: Amnesty International Condemns Attacks against Lesbian, Gay, Bisexual and Transgender People’, http://www.amnesty.org/en/library/asset/AFR59/004/2008/en/6e4ca521-32e1-11dd-863f-e9cd398f74da/afr590042008eng.pdf (accessed 29 November 2008).

The expression ‘sexual minority’ will be used throughout this paper to refer to those whose minority status is a result of either their sexual or emotional conduct with another person of the same sex or their refusal to conform to social roles tied to their biological sex at birth. Thus, the notion of sexual minorities regroups gays, lesbians, bisexuals, and transgender persons who include transsexuals and transvestites. The author recognises, however, that the expression does not distinguish differences among sexual minorities. The terms ‘gay’, ‘lesbian’, ‘bisexual’, ‘transgender’, ‘homosexual’, and ‘same-sex’ will also be used in a partial attempt to address the inadequacies of the expression ‘sexual minority’.

For a survey of laws prohibiting same-sex sexual conduct, see Daniel Ottosson, State-Sponsored Homophobia: A World Survey of Laws Prohibiting Same-Sex Activity Between Consenting Adults (Brussels: ILGA, 2008), http://www.ilga.org/statehomophobia/ILGA_State_Sponsored_Homophobia_2008.pdf (accessed 29 November 2008).

Human Rights First, Homophobia: 2007 Hate Crime Survey, 5.8.Ibid.

The Guardian, ‘Cuba's First Gay Pride Parade Cancelled’, 26 June 2008, http://www.guardian.co.uk/world/2008/jun/26/cuba (accessed 29 November 2008).

See Sonia Katyal, ‘Exporting Identity’, Yale Journal of Law & Feminism 14 (2002): 97, 125–32; see also Re H.F.P. [1999] CRDD No. 188 ¶ 15 (QL); Re C.X.S. [1995] CRDD No. 134 (QL); Re U.F.S. [1999] CRDD No. 81 (QL); Re J.P.R. [1999] CRDD No. 182 ¶ 9 (QL); Re M.X.J. [2006] RPDD No. 113 ¶ 8 (QL).

See Re U.L.X. [1998] CRDD No. 83 ¶ 2 (QL); Re C.Y.T. [1998] CRDD No. 186 ¶ 2 (QL); Re V. (O.Z.) [1993] CRDD No. 164 (QL).

See Re C.X.S; Re P.L.Z. [2000] CRDD No. 97 ¶ 12 (QL).

See Re L. (M.D.) [1992] CRDD No. 328 (QL); Re P. (E.U.) [1992] CRDD No. 397 (QL); Re B.B.Y. [2003] RPDD No. 29 ¶ 8 (QL).

See Re L.(M.D.); Re G.J.M. [2002] CRDD No. 71 (QL); see also Marta Falconi, ‘Gay Italian Labelled as Disabled Wins Discrimination Case against Gov't’, CBC News, 14 July 2008, http://www.cbc.ca/cp/Oddities/080714/K071404AU.html (accessed 29 November 2008); BBC News, ‘Gay Counselling’ Call Rejected’, 6 June 2008, http://news.bbc.co.uk/2/hi/uk_news/northern_ireland/7439661.stm (accessed 29 November 2008); News 24, ‘Homosexuality Is a Disease’, 28 June 2008, http://www.news24.com/News24/World/News/0,,2-10-1462_2348827,00.html (accessed 29 November 2008).

See Nicole LaViolette, ‘Gender-Related Refugee Claims: Expanding the Scope of the Canadian Guidelines’, International Journal of Refugee Law 19, no. 2 (2007): 180.

IGLHRC, ‘First-Ever Asylum Granted to Persecuted Gay Man’, media alert, 3 August 1993; and IGLHRC, ‘Attorney General Supports Gay Asylum’, press release, 17 June 1994.

Brent Creelman, ‘Gay Iraqis Win Asylum in UK, but Process Still Too Tough for Most’, Xtra!, 20 September 2007, http://www.xtra.ca/public/viewstory.aspx?AFF_TYPE=1&STORY_ID=3622&PUB_TEMPLATE_ID=1 (accessed 29 November 2008); BBC News, ‘Gay Iranian Granted Asylum’, 21 May 2008, http://news.bbc.co.uk/2/hi/uk_news/7411706.stm (accessed 29 November 2008). For an analysis of UK decisions, see Jenni Millbank, ‘A Preoccupation with Perversion: The British Response to Refugee Claims on the Basis of Sexual Orientation, 1989–2003’, Social & Legal Studies 14, no. 1 (2005): 115.

Maryellen Fullerton, ‘A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group’, Cornell International Law Journal 26, no. 3 (1993): 505, 531–5.

Re GJ [1995] Refugee Appeal No. 1312/93 (Refugee Status Appeals Authority), where the New Zealand Appeals Authority granted asylum to a gay man from Iran.

David Tuller, ‘Political Asylum for Gays?’, The Nation 256, no. 15 (19 April 1993): 520; Christopher N. Kendall, ‘Lesbian and Gay Refugees in Australia: Now that “Acting Discreetly” Is No longer an Option, Will Equality Be Forthcoming?’, International Journal of Refugee Law 15, no. 4 (2003): 715.

IGLHRC, International Asylum, Fact Sheet, 20 April 1995.

Ibid.

Human Rights Watch, ‘Netherlands: Asylum Rights Granted to Lesbian and Gay Iranians’, press release, 19 October 2006, http://hrw.org/english/docs/2006/10/19/nether14428.htm (accessed 29 November 2008); Gay Times, ‘Dutch Government Grants Asylum to Gay and Lesbian Refugee’, April 1993.

For a general survey of countries that grant asylum to sexual minorities, see European Council on Refugees and Exiles, ‘ELENA Research Paper on Sexual Orientation as a Ground for Recognition of Refugee Status’, http://www.ecre.org/resources/research_paper/350 (accessed 29 November 2008). For a general discussion of the legal issues surrounding political asylum, see Nicole LaViolette, ‘The Immutable Refugees: Sexual Orientation in Ward v. Canada’, University of Toronto Faculty of Law Review 55, no. 1 (1997): 1; Suzanne B. Goldberg, ‘Give Me Liberty or Give Me Death: Political Asylum and the Global Persecution of Lesbians and Gay Men’, Cornell International Law Journal 26, no. 3 (1993): 605.

Ghassan Kassisieh, From Lives of Fear to Lives of Freedom: A Review of Australian Refugee Decisions on the Basis of Sexual Orientation (Sydney: Gay & Lesbian Lobby, 2008), 32.

James Hathaway, The Rights of Refugees under International Law (Cambridge: Cambridge University Press, 2005), 91–3.

1951 UN Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 150, Can. TS 1969 No. 7 (entered into force: 22 April 1954) [Convention].

1967 Protocol Relating to the Status of Refugees, 16 December 1967, 606 UNTS 267, Can. TS 1969 No. 6 (entered into force: 4 October 1967). The Protocol renders international protection for refugees universal, since the Convention covered only persons whose reason to flee was linked to an event that occurred in Europe prior to 1951.

Immigration and Refugee Protection Act, SC 2001, c. 27. The definition of ‘Convention refugee’ is as follows: ‘A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.’

Ward v. Canada (Attorney General) [1993] 2 SCR 689, reversing [1990] 2 FC 667, affirming (1988) 9 Imm. LR (2d) 48, 709. The agents of persecution can be authorities of the state as well as persons not attached to the government. According to Ward, it must be shown that the state is tolerating the persecution by non-state agents or is incapable of protecting the individual who is the target of the persecution. See Ward, 709, 713, 717, 720, 721, LaForest J.

Convention, Art. 33.

Adjei v. Canada (1989) 7 Imm. LR (2d) 169.

Ibid., 171, citing Immigration Appeal Board in its decision of 19 May 1988.

Ibid., 172. The court held that a claimant's fear of persecution would be well founded if there was a ‘reasonable chance’ that persecution would take place. This test requires that there need not be more than a 50% chance but there must be more than a minimal possibility: ibid., 173.

James Hathaway, The Law of Refugee Status (Toronto: Butterworths, 1991), 71. For a discussion of the subjective element of ‘well-founded fear’, see Michael Bossin and Laila Demirdache, ‘A Canadian Perspective on the Subjective Component of the Bipartite Test for “Persecution”: Time for Re-evaluation’, Refuge 22, no. 1 (2004): 108.

Hathaway, The Law of Refugee Status, 89. It is important to note that, because an individual need only fear a future risk of persecution, evidence of individualised past persecution is not necessary, but it is certainly an important indicator of the treatment awaiting the claimant if he or she should return home: ibid., 87.

Ibid., 84. The Federal Court of Appeal has stated that a claimant's testimony will be presumed to be credible if the applicant swears to the truth of the allegations.

Nurjehan Mawaani, ‘Evidentiary Matters at the Immigration and Refugee Board in an Age of Diversity’, Canadian Journal of Administrative Law & Practice 8, no. 1 (1994): 42.

Immigration & Refugee Act, s. 170(i).

Ibid., s. 170(g).

Ibid., s. 162(2).

Ibid., s. 170(h).

Re R. (U.W.) [1991] CRDD No. 50 (QL). My analysis of IRB decisions regarding sexual orientation is based on a review of all cases reported in writing by the Convention Refugee Determination Division, now known as the Refugee Protection Division (RPD), and some cases reported by the media. The IRB has a statutory requirement to provide written reasons only when it renders negative decisions. Because of the heavy workload of IRB adjudicators, positive decisions are usually delivered orally and rarely put down in writing unless otherwise requested by a claimant's lawyer: see Gerald H. Stobo, ‘The Canadian Refugee Determination System’, Texas International Law Journal 29 (1994): 391. My examination thus relies on a larger number of negative decisions than positive ones.

Marina Jimenez, ‘Gay Refugee Claimants Seeking Haven in Canada’, Globe and Mail, 25 April 2004, http://www.theglobeandmail.com/servlet/story/RTGAM.20040423.wrefugee24/BNStory/Front/?query=%22Gay+refugee+claimants%22 (accessed 29 November 2008).

Sean Rehaag, ‘Patrolling the Borders of Sexual Orientation: Bisexual Refugee Claims in Canada’, McGill Law Journal 53 (2008): 70.

Ibid., 71: Rehaag determined that ‘[t]he grant rates in sexual-orientation cases in 2004 were 49% overall, 48% for female claimants, and 50% for male claimants’ and that the average grant rate for the whole of refugee claims for the same period was 45%.

For an analysis of case law pertaining to the definition of ‘particular social group’ and sexual minorities, see LaViolette, ‘The Immutable Refugees’. For specific cases that raised this issue, see Re R. (U.W.) [1991] CRDD No. 501 (QL); Re N. (K.U.) [1991] CRDD No. 1140 (QL); Re N. (L.X.) [1992] CRDD No. 47 (QL); Re L. (M.D.), note 13 above; Re X. (J.K.) [1992] CRDD No. 348 (QL); Re V. (O.Z.), note 11 above; Re E. (Q. R.) [1993] CRDD No. 331 (QL); Re H. (Y.F.) [1994] CRDD No. 185 (QL); Re H.(Y.N.) [1994] CRDD No. 13 (QL); Re W.(U.K.) [1995] CRDD No. 123 (QL); Re F.I.N. [1995] CRDD No 151 (QL); Re N. (O.I.) [1995] CRDD No. 112 (QL); Re B. (W.B.) [1995] CRDD No. 108 (QL); Re C.X.S, note 10 above; Re U.Y.O. [1996] CRDD No. 163 (QL); Re J.K.D. [1997] CRDD No. 307 (QL); Re K.V.R. [1997] CRDD No. 312 (QL); Re B.Q.D. [1997] CRDD No. 308 (QL).

Ward v. Canada (Attorney General).

Even though Ward had a significant impact on sexual orientation claims, the facts in Ward did not revolve around a gay or lesbian claimant. Rather the case involved a member of the Irish National Liberation Army (INLA) who, after helping two hostages escape, was sentenced to death by the terrorist organisation. He fled to Canada, and sought refugee status based on his fear of persecution for membership in a particular social group, i.e. the INLA. In the course of deciding whether the INLA could be considered a ‘particular social group’, the Supreme Court of Canada set forth a definition of the concept that at the same time resolved the status of sexual minorities as a social group in Canadian refugee law.

Pizarro v. Canada (Minister of Employment and Immigration) [1994] FCJ No. 320 ¶ 5 (QL).

Sexual minority claimants have also founded their fear of persecution on political opinion: see Re U.L.X.. In addition, sexual minority claimants have founded their fear of persecution on membership in a particular social group based on gender: see Re C.L.Q. [1996] CRDD No. 145 (QL).

See R e W. (U.K.); Re I.O.D. [1995] CRDD No. 167 (QL); Re F.I.N. [1995] CRDD No. 151 (QL); Re N. (O.I.); Re B. (W.B.); Re C.X.S; Re C.D.H. [1996] CRDD No. 210 (QL); Re X.Q.P. [1996] CRDD No. 222 (QL); Re E.N.U. [1997] CRDD No. 67 (QL); Re G.P.E. [1997] CRDD No. 215 (QL); Re C.R.H. [1997] CRDD No. 178 (QL); Re G.W.M. [1997] CRDD No. 238 (QL); Re S.E.X. [1997] CRDD No. 277 (QL); Re K.V.R.; Re T.B.E. [1997] CRDD No. 304 (QL); Re J.M.E. [1998] CRDD No. 19 (QL); Re F.V.Y. [1998] CRDD No. 20 (QL); Re B.S.J. [1998] CRDD No. 32 (QL); Re T.Q.B. [1998] CRDD No. 101 (QL); Re C.Y.T.; and Re U.O.L. [1998] CRDD No. 166 (QL).

It is important to underscore that a claimant does not actually have to be a member of the particular social group. According to Ward, it is sufficient that the agents of persecution believe the person to be a member of the particular social group. This principle was applied by the Federal Court to claims based on sexual orientation in Dykon v. Canada (Minister of Employment and Immigration) [1994] FCJ No. 1409 (QL). The Federal Court held that ‘it is totally irrelevant … whether [the refugee claimant] was in fact a homosexual or not’ (para. 3). It is the beliefs of the persecutors that are important, and whether the individuals responsible for the persecution perceive the claimant to be a homosexual.

The IRB has conducted professional development training with its members on several occasions since 1995 to respond in part to concerns about the use of human rights documentation evidence in claims based on sexual orientation and gender identity. The author developed and presented these professional training seminars to RPD staff in 1995, 1999, 2003, and 2004; see Nicole LaViolette, ‘Sexual Orientation and the Refugee Determination Process: Questioning a Claimant about their Membership in the Particular Social Group’, in Asylum Based on Sexual Orientation: A Resource Guide, ed. Sydney Levy (San Francisco: IGLHRC, 1996). This particular training document was updated in 2004; see Nicole LaViolette, ‘Sexual Orientation and the Refugee Determination Process: Questioning a Claimant about their Membership in the Particular Social Group’ (on file with author). The training is also mentioned in Maria Jiménez, ‘Nicaraguan Wins Reprieve in Bid to Remain in Canada’, Globe and Mail, 10 February 2007; Jen Lahey, ‘Sweating Bullets: How Canada's Gay Refugees Get Stuck in Legal Limbo’, Capital Xtra, 20 February 2008, 14.

See Re H.F.P., ¶ 9; Re V.P.F. [1999] CRDD No. 191 ¶ 4 (QL); Re Y.J.E. [1999] CRDD No. 288 ¶ 6 (QL); Re P.L.Z. [2000] CRDD No. 97 ¶ 11 (QL); Re J.Q.U. [2001] CRDD No. 90 ¶ 3 (QL).

See Re U.O.D. [1999] CRDD No. 106 ¶ 10 (QL); Valdes v. Canada (Minister of Citizenship and Immigration) [2004] RPDD No. 140 ¶ 30 (QL); see also Re H.S.O. [2001] CRDD No. 19 ¶ 17–19 (QL) (where the RPD rejected a video that had been submitted by the claimant which showed the claimant having sex with another man, and stated that the ‘videotape was shot purposely to be used as evidence in the refugee hearing and the story about the claimant and xxxxx was a concoction to support his allegation that he was persecuted as a homosexual’).

See Re H.F.P.; Re G.J.M., ¶ 16; Re P.L.L. [2005] RPDD No. 21 ¶ 28; see also Re U.P.V. [1999] CRDD No. 145 (QL) (where a claimant's failure to provide corroborating letters from gay organisations he stated he was involved in led the adjudicator to conclude that he was not gay).

See R e W.X.S. [2004] RPDD No. 15 (QL) (where a Ugandan claimant filed a medical report in which a Ugandan doctor concluded that the claimant had been having regular anal sex. The claimant testified that this caused him to be expelled from school. The RPD accepted this document as credible in relation to establishing his homosexuality).

Matt Mills, ‘Nicaraguan Refugee Goes into Hiding’, Xtra!, 16 August 2007, http://www.xtra.ca/public/viewstory.aspx?AFF_TYPE=3&STORY_ID=3497&PUB_TEMPLATE_ID=2 (accessed 29 November 2008); Kevin Ritichie, ‘Queer Refugees Unfairly Rejected, Critics Say’, Xtra!, 11 October 2007, http://www.xtra.ca/public/viewstory.aspx?AFF_TYPE=3&STORY_ID=3717&PUB_TEMPLATE_ID=1 (accessed 29 November 2008).

Tracy J. Davis, ‘Opening Doors of Immigration: Sexual Orientation and Asylum in the United States’, Human Rights Brief 6, no. 3 (1999): 19.

Ibid.

See R e R. (U.W.); Re N.(K.U.) [1991] CRDD No. 1140 (QL); Re N. (L.X.); Re P.(E.U.); Re X. (W.B.) [1992] CRDD No. 549 (QL); Re J.(F.H.) [1993] CRDD No. 98 (QL); Re Q. (B.C.) [1993] CRDD No. 209 (QL); Re T. (F.N.) [1993] CRDD No. 326 (QL); Re H. (Y.F.); Re H. (Y.N.); Re I.O.D.; Re D. (C.J.) [1995] CRDD No. 86 (QL); Re C.L.Q.; and Re O.R.C. [1997] CRDD No. 66 (QL).

This section is based in part on a previous paper published by the author: Nicole LaViolette, ‘Proving a Well-Founded Fear: The Evidentiary Burden in Refugee Claims Based on Sexual Orientation’, in Asylum Based on Sexual Orientation: A Resource Guide, ed. Sydney Levy (San Francisco: IGLHRC, 1996). For an examination of evidentiary issues related to sexual orientation claims in both the Canadian and Australian refugee determination processes, see Catherine Dauvergne and Jenni Millbank, ‘Burdened by Proof: How the Australian Refugee Review Tribunal Has Failed Lesbian and Gay Asylum Seekers’, Federal Law Review 31(2003): 299.

James D. Wilets, ‘International Human Rights Law and Sexual Orientation’, Hastings International and Comparative Law Review 18, no. 1 (1994): 72. Amnesty International had been lobbied for 17 years before finally deciding to regard those imprisoned for their sexuality as prisoners of conscience.

For instance, it was only in 1994 that Human Rights Watch, a well-respected human rights organisation based in the United States, adopted a statement opposing human rights violations against gay men and lesbians; see Human Rights Watch, ‘Two Recent HRW Actions’, press release, 24 July 1995. The International Commission of Jurists incorporated sexual minority equality into its mandate in 1994; see John Fisher, ‘A Revolution that's Going Global’, Xtra!, 5 August 1994, 13. The first Canadian NGO report on human rights violations against gay men and lesbians was published in April 1996 by the Inter-Church Committee on Human Rights in Latin America (ICCHRLA): ICCHRLA, Violence Unveiled: Repression against Lesbians and Gay Men in Latin America (Toronto, 1996), http://www.choike.org/documentos/gays_violence.pdf (accessed 29 November 2008).

The resistance of the international NGO community was evident at the 1993 UN World Conference on Human Rights held in Vienna. A first draft of the report of the NGO forum to be presented to a Plenary Session of the World Conference made no mention of the sexual minority issues that were discussed in several workshops of the Forum. Only after extensive lobbying were gay men and lesbians mentioned in the Final Report: ILGA, The International Lesbian and Gay Association at the United Nations World Conference on Human Rights (Brussels: ILGA 1993).

UN Economic and Social Council, Commission on Human Rights, The Legal and Social Problems of Sexual Minorities, E/CN.4/Sub.2/1988/31, 1987.

Gay Times, ‘UN Briefed on Lesbian and Gay Human Rights’, October 1992.

Rex Wockner, ‘A Critical Mass’, Advocate, 17 October 1995, 20–1.

Re R. (U.W.).

Re P. (E.U.).

See Re X. (W.B.); Re Q. (B.C.); Re T. (F.N.); and Re H. (Y.F.).

Juan Pablo Ordoñez, No Human Being Is Disposable (San Francisco: IGLHRC, 1995), 65–6. Ordoñez had his life threatened for investigating abuses against sexual minorities and had to leave Colombia as a result.

Ibid., 9.

IGLHRC, The International Tribunal on Human Rights Violations against Sexual Minorities (New York, 1995), 8–9, http://www.iglhrc.org/files/iglhrc/reports/Tribunal.pdf (accessed 29 November 2008).

Re H. (Y.F.).

Ibid.

Re N. (L.X.).

Ibid.

Ibid.

Re H. (Y.F.).

Ibid. The same evidence was presented in an American asylum case when Dr Luis Mott, the sociologist who had investigated the murders, testified about his findings. The gay man from Brazil was granted asylum by an immigration judge in that case, who found that ‘based on the testimony and the documentation submitted … the respondent's fear of persecution … is objectively reasonable’; see Jin S. Park, ‘Pink Asylum: Political Asylum Eligibility of Gay Men and Lesbians under U.S. Immigration Policy’, UCLA Law Review 42 (1995): 1153.

Re H. (Y.N.).

Ibid.

For instance, IRB cited information from the Quaker Council for European Affairs on conscientious objectors in a National Documentation Package on the Ukraine: IRB, National Documentation Package – Ukraine, 19 March 2008, http://www.irb-cisr.gc.ca/en/research/ndp/index_e.htm?id=614 (accessed 29 November 2008). Information produced by Reporters Without Borders was included in a National Documentation Package on China: IRB, National Documentation Package – China, 19 March 2008, http://www.irb-cisr.gc.ca/en/research/ndp/index_e.htm?id=598 (accessed 29 November 2008). In a similar package about El Salvador, the IRB cited a report from the International Confederation of Free Trade Unions: IRB, National Documentation Package – El Salvador, 19 March 2008, http://www.irb-cisr.gc.ca/en/research/ndp/index_e.htm?id=605 (accessed 29 November 2008).

Amnesty International, letter to ILGA Members, ‘AI Members for Lesbian and Gay Concerns’, 28 June 1994.

Amnesty International members attended ILGA's international conference held in New York in June 1994.

Re H. (Y.F.).

Amnesty International USA, Breaking the Silence (New York: Amnesty International USA, 1994), 37.

Julie Dorf, ‘International Human Rights: Advocating for Gays and Lesbians’ (lecture, University of Ottawa, Ottawa, Canada, 15 March 1994).

El-Farouk Khaki, interview by Nicole LaViolette, Toronto, May 1995.

See Re H. (Y.N.).

Canadian Council for Refugees, Working Group on Refugee Protection, ‘Addressing Claims Based on Sexual Orientation’, policy statement, 1995, 4.

Amnesty International USA, Breaking the Silence; Amnesty International, Violations of the Human Rights of Homosexuals: Extracts from Amnesty International Action Materials (London, 1994); idem, Killings of Gay Men in Chiapas: The Impunity Continues (London, 1994); idem, Human Rights Are Women's Rights (New York, 1995), 169–210; see also Re N. (O.I.), n. 17 (which relied on a news story which that reported that Amnesty International feared that sexual minorities were being persecuted in Venezuela); Re J.J.Y. [1996] DSSR No. 50 (QL) (where information from Amnesty International was cited in relation to a Venezuelan claimant).

Committee to Protect Journalists, Double Jeopardy: Homophobic Attacks on the Press, 1990–1995 (New York: Committee to Protect Journalists, 1995).

ICCHRLA, Violence Unveiled.

In 1996, the Lawyers Committee for Human Rights criticised the United States Department of State's Country Reports on Human Rights Practices for 1993 for failing to report the persecution and murder of gay men in Mexico and the failure or lack of appropriate police investigations: see Re N.K.O. [1996] CRDD No. 238 ¶ 13 (QL).

Human Rights Watch, Free Expression Project, A Ruling by U.S. Anti-Pornography Activists is Used to Restrict Lesbian and Gay Publications in Canada (New York, 1994); Human Rights Watch/Helsinki, letter to the Russian Federation about the harassment of a gay journalist, 18 July 1995; Human Rights Watch/Americas, letter to the Salvadoran government about death threats to AIDS and gay groups, 6 July 1995; Human Rights Watch, Unsettled Business; Human Rights in Chile at the Start of the Frei Presidency (New York, 1994), 32-3; Scott Long, Public Scandals: Sexual Orientation and Criminal Law in Romania (New York: Human Rights Watch and IGLHRC, 1998), http://www.hrw.org/reports97/romania/ (accessed 29 November 2008); Re S.E.X. (citing information gathered by Human Right Watch in support of a claim from a Romanian gay man).

See, e.g., IGLHRC and Human Rights Watch, More than a Name: State-Sponsored Homophobia and Its Consequences in Southern Africa (New York: Human Rights Watch, 2003), http://www.hrw.org/reports/2003/safrica/safriglhrc0303.pdf (accessed 29 November 2008); see also Cynthia Rothschild and Scott Long, Written out: How Sexuality Is Used to Attack Women's Organizing (IGLHRC and Center for Women's Global Leadership, 2005), http://www.iglhrc.org/files/iglhrc/WrittenOut.pdf (accessed 29 November 2008); Long, Public Scandals.

Re H.F.P., ¶ 14–16.

Re G.J.M., ¶ 23.

Amnesty International, Crimes of Hate, Conspiracy of Silence: Torture and Ill-Treatment Based on Sexual Identity (London, 2001), 33, http://www.amnesty.org/en/library/asset/ACT40/016/2001/en/dom-ACT400162001en.pdf (accessed 29 November 2008).

Re F.C.B. [1999] CRDD No. 89 ¶ 19 (QL).

Re L.(O.V.) [1995] CRDD No. 4 (QL). The same report was cited in Re U.Y.O.; and Re Z.P.O. [1996] DSSR No 47 (QL).

Re W. (U.K.), n. 7; see also Re G.U.S. [1996] CRDD No. 239 (QL) (where a statement of Julie Dorf, then Executive Director of the IGLHRC, was cited in support of another Ukrainian claimant).

Re B. (W.B.); see also Re C.D.H.; and Re B.Q.D. (citing IGLHRC information in support of certain Chilean lesbian claimants).

Re W.R.O. [2000] CRDD No. 284 ¶ 10 (QL); but see Neto v. Canada (Citizenship and Immigration) 2007 FC 664, [2007] FCJ No. 893 (QL) (where the RPD accepted a report from ILGA provided by IRB as reliable, but rejected an ILGA report produced by the claimant because it did not come from a reliable and independent source).

Re Q.N.W. [1998] CRDD No. 38 (QL).

Re F.O.K. [1998] CRDD No. 228 ¶ 33 (QL).

Ibid., ¶ 32.

Stobo, ‘The Canadian Refugee Determination System’, 387.

The author reviewed responses of the Directorate entitled ‘Information Requests’, which represent answers to questions received from then Convention Refugee Determination Division Board adjudicators.

IRB, Research Directorate, Documentation, Information and Research Directorate, Question and Answer Series – Iran: Chronology of Events June 1989 – July 1994, August 1994, 3 and 18.

As a contractor with Human Rights Internet, the author researched and produced the bibliography and selection of articles that was published by the Documentation, Information and Research Branch of IRB in June 1996.

IRB, ‘Mexico: Treatment of Sexual Minorities’, issue paper, April 1999, http://www.irb-cisr.gc.ca/en/research/publications/index_e.htm?docid=108&cid=0&disclaimer=hide (accessed 29 November 2008).

IRB, Research Directorate, ‘Poland: Situation of Gays and Lesbians’, extended response to information request, 11 May 1999, http://www.irb-cisr.gc.ca/en/research/publications/index_e.htm?docid=32&cid=0 (accessed 29 November 2008).

IRB, Research Directorate, ‘Russia: Situation of Gays and Lesbians’, extended response to information request, 14 May 1999, http://www.irb-cisr.gc.ca/en/research/publications/index_e.htm?docid=34&cid=0 (accessed 29 November 2008).

See, e.g., IRB, Research Directorate, ‘Jamaica: Treatment of Homosexuals by Society and Government Authorities; Availability of Support Services (2004–2006)’, responses to information requests, 22 February 2007, http://www.irb-cisr.gc.ca/en/research/rir/?action=record.viewrec&gotorec=450935 (accessed 29 November 2008); IRB, Research Directorate, ‘Mongolia: The Treatment of Homosexuals by Authorities and by Society in General; Recourse Available to Those Who Have Been Harassed Based on Their Sexual Orientation (2004–March 2007)’, responses to information requests, 16 March 2007, http://www.cisr-irb.gc.ca/en/research/rir/index_e.htm?action=record.viewrec&gotorec=451031 (accessed 29 November 2008); IRB, Research Directorate, ‘Saudi Arabia: Treatment of Homosexuals by Authorities and by Society in General; Recourse Available to Those Who Have Been Targeted because of Their Sexual Orientation (2004–2007)’, responses to information requests, 19 March 2007, http://www.irb-cisr.gc.ca/en/research/rir/index_e.htm?action=record.viewrec&gotorec=451049 (accessed 29 November 2008).

Re L.L.R. [1999] CRDD No. 18 ¶ 31 (QL).

Ibid., ¶ 46.

Ibid., ¶ 49–56.

Re U.F.S.

The author developed and presented professional training seminars on sexual orientation claims to IRB staff in 1995, 1999, 2003, and 2004. For a discussion of professional development training at IRB: see François Crépeau and Delphine Nakache, ‘Critical Spaces in the Canadian Refugee Determination System: 1989–2002’, Journal of Refugee Law 20, no. 1 (2008), 50, 94–6.

In fact, the professional development workshop addressed another recommendation made by the Canadian Council for Refugees, which called on the Board to provide training for staff and RPD adjudicators on issues relating to documentation; see Canadian Council for Refugees, Addressing Claims Based on Sexual Orientation.

In their 2003 comparative study, Dauvergne and Millbank concluded that the Canadian tribunal developed better evidentiary practices in relation to sexual orientation claims than its counterpart in Australia: Dauvergne and Millbank, ‘Burdened by Proof’, 317–20. Similar findings are made in Kassisieh, From Lives of Fear to Lives of Freedom.

Hathaway, Law of Refugee Status, 84.

Re H. (Y.N.).

See Hathaway, Law of Refugee Status, 84, citing Thind v. Canada (Minister of Employment and Immigration) [1983] FCJ No. 939 (FCA).

Dauvergne and Millbank, ‘Burdened by Proof’, 309.

ARC International, ‘ARC Annual Report 2006’, http://www.arc-international.net/report2006.html (accessed 29 November 2008). The Yogyakarta Principles can be found at http://www.yogyakartaprinciples.org/ (accessed 29 November 2008).

ARC International, ‘About Us’, http://www.arc-international.net/about.html (accessed 29 November 2008).

United Nations High Commissioner for Human Rights (UNHCHR), ‘Discrimination on the Basis of Sexual Orientation’, http://www2.ohchr.org/english/bodies/chr/special/sexualorientation.htm (accessed 29 November 2008).

UNHCHR, Resolution on Extrajudicial, Summary or Arbitrary Executions, CHR Res. 2004/37, 55^th Mtg., UN Doc. E/CN.4/2004/127 (19 April 2004), ¶ 6.

ILGA, ILGA Files, ‘Supportive governments: 60 countries have publicly supported sexual orientation at the CHR/HRC between 2003 and 2008’, http://www.ilga.org/news_results.asp?FileCategory=61&ZoneID=7&FileID=583 (accessed 20 November 2008).

Louise Arbour, ‘Presentation of the Office of the United Nations High Commissioner for Human Rights’, presentation to the International Conference on LGBT (Lesbian, Gays, Bisexual and Transgender) Human Rights, Montreal, 26 July 2006), http://www.unhchr.ch/huricane/huricane.nsf/view01/B91AE52651D33F0DC12571BE002F172C?opendocument (accessed 29 November 2008).

Kassisieh, From Lives of Fear to Lives of Freedom, 38 (internal citations omitted).

IRB, ‘Mongolia’.

IRB, Research Directorate, ‘Turkey: Military and Societal Treatment of Homosexuals Who Have Been Deemed Unfit to Serve in the Military and/or Who Have Been Discharged from the Military Due to Their Sexual Orientation (January 2002 – September 2004)’, responses to information requests, 10 September 2004, http://www.cisr-irb.gc.ca/en/research/rir/index_e.htm?action=record.viewrec&gotorec=44449 (accessed 29 November 2008).

For instance, a search of Amnesty International's online library yields full-length country reports on only a handful of countries: Amnesty International, Poland and Latvia: Lesbian, Gay, Bisexual and Transgender Rights in Poland and Latvia (London, 2006), http://www.amnesty.org/en/library/info/EUR01/019/2006/en (accessed 29 November 2008); idem, Ecuador: Pride and Prejudice: Time to Break the Vicious Circle of Impunity for Abuses against Lesbian, Gay, Bisexual and Transgendered People (London, 2002), http://www.amnesty.org/en/library/info/AMR28/001/2002/en (accessed 29 November 2008); idem, Egypt: Torture and Imprisonment for Actual or Perceived Sexual Orientation (London, 2001), http://www.amnesty.org/en/library/info/MDE12/033/2001/en (accessed 29 November 2008). Human Rights Watch lists the following reports on their website: Human Rights Watch, ‘We Need a Law for Liberation’: Gender, Sexuality, and Human Rights in a Changing Turkey (New York, 2008), http://hrw.org/reports/2008/turkey0508/ (accessed 29 November 2008); idem, Hated to Death: Homophobia, Violence, and Jamaica's HIV/AIDS Epidemic (New York, 2004), http://hrw.org/reports/2004/jamaica1104/ (accessed 29 November 2008); idem, In a Time of Torture: The Assault on Justice in Egypt's Crackdown on Homosexual Conduct (New York idem, 2004), http://hrw.org/reports/2004/egypt0304/ (accessed 29 November 2008); idem, Uniform Discrimination: The ‘Don't Ask, Don't Tell’ Policy of the U.S. Military (New York, 2003), http://hrw.org/reports/2003/usa0103/ (accessed 29 November 2008); IGLHRC and Human Rights Watch, More than a Name; idem, Hatred in the Hallways: Violence and Discrimination against Lesbian, Gay, Bisexual, and Transgender Students in U.S. Schools (New York, 2008), http://www.hrw.org/reports/pdfs/c/crd/usalbg01.pdf (accessed 29 November 2008).

Mexico is apparently the largest source of refugee claimants generally in Canada; see Samantha Sarra, ‘New Hearing for Rejected Mexican’, Xtra!, 16 April 2008, http://www.xtra.ca/public/viewstory.aspx?AFF_TYPE=3&STORY_ID=4648&PUB_TEMPLATE_ID=9 (accessed 29 November 2008).

Ordoñez, No Human Being Is Disposable; Masha Gessen, The Rights of Lesbians and Gay Men in the Russian Federation (San Francisco: IGLHRC, 1994); Rachel Rosenbloom, Unspoken Rules: Sexual Orientation and Women's Human Rights (San Francisco: IGLHRC, 1995); Long, Public Scandals; and Luiz Mott, Epidemic of Hate: Violations of the Human Rights of Gay Men, Lesbians, and Transvestites in Brazil (San Francisco: IGLHRC, 1997).

IGLHRC and Human Rights Watch, More than a Name.

For instance, on 8 July 2008, the description for IGLHRC's programme in Africa did not appear to have been updated since 2003 when it announced the publication of More than A Name.

Ottosson, State-Sponsored Homophobia.

Garcia v. Canada (Minister of Citizenship and Immigration) [2005] FCJ No. 1008 (QL).

Ibid. ¶ 17.

United Nations Economic and Social Council, Commission on Human Rights, Report of the Special Representative of the Secretary-General on Human Rights Defenders, UN ECOSOC, 57th Sess., E/CN.4/2001/94 (2001), 24, http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/d6c1b351bf405ad3c1256a25005109bc/$FILE/G0110638.pdf (accessed 29 November 2008).

Arbour, ‘LGBT Human Rights’.

Ottosson, State-Sponsored Homophobia.

Human Rights Watch, ‘We Need a Law for Liberation’, 5.

Ibid., 5.

Human Rights Watch, Homophobia, 11.

Ibid.

Michael Battista, letter to Jean-Guy Fleury, Chairperson, IRB, 4 December 2002 (on file with author); see also Joel Dupuis, ‘Believe the Hype: Refuge Evaluated According to Tourist Info’, Xtra!, 9 January 2003, http://archives.xtra.ca/Story.aspx?s=14751297 (accessed 29 November 2008).

Battista, letter to Jean-Guy Fleury.

Dauvergne and Millbank, ‘Burdened by Proof’, 317–20.

But see Re V.P.F., para. 12 (where the ‘dearth of country conditions’ information available on sexual minorities in Mongolia did not prejudice the claimants’ case).

The RPD added, ‘It is reasonable to infer that if gays and lesbians were being persecuted then these reports would have said so because Amnesty reports makes a point of referring to violations of human rights.’ IRB, Reasons for Decision – File A99-01249, 28 June 2000, 3–4 (on file with author).

Canada (Minister of Citizenship and Immigration) v. Shwaba 2007 FC 80, [2007] FCJ No. 119 (QL).

Ibid., ¶ 20.

Kassisieh, From Lives of Fear to Lives of Freedom, 38, citing RRT Reference N04/49352 (unreported, O'Brien, 30 September 2004).

See Mirko Bagaric and Penny Dimopoulos, ‘Discrimination as the Touchstone of Persecution in Refugee Law’, International Journal of the Sociology of Law 32, no. 4 (2004): 303.

Ward v. Canada (Attorney General), 734.

Rajudeen v. Canada (Minister of Employment and Immigration) [1984], 55 NR 129, 133–4 (FCA).

Ibid.: the Federal Court of Appeal defined persecution thus: ‘[t]o harass or afflict with repeated acts of cruelty or annoyance … to afflict or punish because of particular opinions … a particular course or period of systematic infliction of punishment’.

See Chan v. Canada (Minister of Employment and Immigration) (1993) 20 Imm. LR (2d) 181, 208, [1993] 3 FC 675, 156 NR 279 (FCA), affirmed on other grounds (1995) 128 DLR (4th) 213; see also Thirunavukkarasu v. Canada (Minister of Employment and Immigration) (1993) 109 DLR (4th) 682 (FCA); Surujpal v. Canada (Minister of Employment and Immigration) (1985) 60 NR 73 (FCA).

Ranjha v. Canada (Minister of Citizenship and Immigration) 2003 FC 637, [2003] FCJ No. 901 ¶ 42 (QL); N.K. v. Canada (Solicitor General) [1995] FCJ No. 889 ¶ 21 (QL).

United Nations High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, UN Doc. HCR/IP/4/Eng/Rev.1 (1979), http://www.unhcr.org/publ/PUBL/3d58e13b4.pdf (accessed 29 November 2008).

Ibid., ¶54.

Sagharichi v. Canada (Minister of Employment and Immigration) [1993] FCJ No. 796 (FCA) ¶ 3.

Kaish v. Canada (Minister of Citizenship and Immigration) [1999] FCJ No. 1041 ¶ 9 (QL).

Sagharichi v. Canada (Minister of Employment and Immigration), ¶ 3. It is true also that identification of persecution behind incidents of discrimination or harassment is not purely a question of fact but a mixed question of law and fact.

Gutkovski v. Canada (Secretary of State) [1995] FCJ No. 566 ¶ 28 (QL).

Re D.C.J. [1995] CRDD No. 86 (QL); Re N.K.O. [1996] CRDD No. 238 (QL); Re U.Y.O.; Re C.L.Q.; and Re U.V.G. [1997] CRDD No. 250 (QL).

Kevin Ritchie, ‘Successful Refugee Claims Decrease: Burgeoning Queer Movements at Home May Work against Homos’, Xtra!, 17 January 2007, http://www.xtra.ca/public/viewstory.aspx?AFF_TYPE=3&STORY_ID=2556&PUB_TEMPLATE_ID=2 (accessed 29 November 2008).

Ibid.

Cuesta v. Canada (Minister of Citizenship and Immigration) [2003] RPDD No. 603 ¶ 34.

Re N.E.V. [2004] RPDD No. 225 ¶ 7 (QL).

Titus-Glover v. Canada (Minister of Citizenship and Immigration) [2006] RPDD No. 79 ¶ 25 (QL).

Re S.T.V. [2006] RPDD No. 11 ¶ 16 (QL).

For a discussion of how this has been an issue in Australian cases, see Kassisieh, From Lives of Fear to Lives of Freedom, 37.

A.J.M. v. Canada (Minister of Citizenship and Immigration) [2005] FCJ No. 142 ¶ 9 (QL).

Kassisieh, From Lives of Fear to Lives of Freedom, 38.

Amnesty International, Crimes of Hate, 27.

Kassisieh, From Lives of Fear to Lives of Freedom, 37.

Zakka v. Canada (Minister of Citizenship and Immigration) 2005 FC 1434, [2005] FCJ No. 1759 ¶ 11 (QL).

Birsan v. Canada (Minister of Citizenship and Immigration) [1998] FCJ No. 1861 (QL).

Ibid., ¶ 4.

Oviawe v. Canada (Minister of Citizenship and Immigration) 2006 FC 1114, [2006] FCJ No. 1421 ¶ 14.

Sagharichi v. Canada (Minister of Employment and Immigration), ¶ 3.

Inigo Contreras v. Canada (Minister of Citizenship and Immigration) 2006 FC 603, [2006] FCJ No. 763 ¶ 12.

Re J.Q.U.

Re E.K.G. [1999] CRDD No. 54 ¶ 13-14 (QL).

Ibid., ¶ 15.

Ibid., ¶ 12–15.

Re N.W.P. [1999] CRDD No. 3 ¶ 9 (QL).

Ibid.

Kassisieh, From Lives of Fear to Lives of Freedom, 34.

Ibid.

Sonia Katyal, ‘Sexuality and Sovereignty: The Global Limits and Possibilities of Lawrence’, William & Mary Bill of Rights Journal 14, no. 4 (2006): 1448.

De Seram v. Canada (Minister of Citizenship and Immigration) 2007 FC 1123, [2007] FCJ No. 1487 ¶ 25. The Federal Court of Canada concluded that RPD committed a reviewable error by not considering contrary evidence that the police harassed, assaulted, and extorted money from gay men. Ibid., ¶ 30.

Abdul Hameed v. Canada (Minister of Citizenship and Immigration) [2004] RPDD No. 256 (QL).

Re J.F.E. [2007] RPDD No. 6 ¶ 21 (QL).

Peiris v. Canada (Minister of Citizenship and Immigration) [2004] FCJ No. 1510 ¶ 10.

Ibid., ¶ 21.

Ibid.

Canada (Minister of Citizenship and Immigration) v. Flores Carrillo (2008) 69 Imm. L.R. (3d) 309 ¶ 17 and 20.

Ibid., ¶ 30.

Ward, Ward v. Canada (Attorney General), 724–5.

Ibid.

Canada (Minister of Employment and Immigration) v. Villafranca (1992) 18 Imm. LR (2d) 130 (FCA); Sampayo v. Canada (Minister of Citizenship and Immigration) [2004] RPDD No. 324 (QL); Valdes v. Canada (Minister of Citizenship and Immigration).

K.N. v. Canada (Minister of Citizenship and Immigration) [1996] FCJ No. 1376 ¶ 5 (QL).

See Re O.V.D. [2002] CRDD No. 364 (QL).

Re B.X.Y. [2003] RPDD No. 8 (QL). For a description of jurisprudential guides and the two decisions designated as such, see IRB, ‘Jurisprudential Guides’, http://www.irb-cisr.gc.ca/en/references/policy/juriguides/index_e.htm (accessed 29 November 2008).

Immigration & Refugee Act.

Shannon Minter, ‘Lesbians and Asylum: Overcoming Barriers to Access’, in Asylum Based on Sexual Orientation: A Resource Guide, ed. Sydney Levy (San Francisco: IGLHRC, 1996), IB/3, IB/5–6; see also Re D.A.K. [2000] CRDD No. 338 ¶ 23 (QL) (where the RPD noted that discrimination against lesbians in Mexico happened ‘usually only within the realm of private life’). An Amnesty International report confirmed that ‘[t]he imposition of such penalties for same-sex relations must be viewed in the context of the repression of other forms of consensual sexual behaviour which are seen to transgress strict religious or political codes, such as sexual relations between men and women outside marriage. Where gender discrimination is enshrined in law, women accused of any sexual activity outside marriage are particularly at risk of such penalties’: Amnesty International USA, Human Rights and Sexual Orientation and Gender Identity (New York, 2004), http://www.amnestyusa.org/outfront/document.do?id=9F25DB548B5696C680256E5C00688E96 (accessed 29 November 2008); Amnesty International, Crimes of Hate, 19.

Re U.J.Y. [2003] RPDD No. 23 (QL); Perez v. Canada (Minister of Citizenship and Immigration) [2004] RPDD No. 78 (QL).

Re F.I.N. [1995] CRDD No. 151 (QL); Re L.U.M. [1996] CRDD No. 193 (QL); Re O.P.K. [1996] CRDD No. 88 (QL); Re G.U.S. [1996] CRDD No. 66 (QL); Re O.R.C.; Re E.N.U.; Re U.V.G. [1997] CRDD No. 250 (QL); Re Q.N.W.; Re U.O.D.; Re V.P.F.. It was ironic that, in certain cases, a marriage or relationship of convenience was the only possible way to escape persecution: see Re L. (M.D.); Re P. (E.U.); Burgos-Rojas v. Canada (Minister of Citizenship and Immigration) [1999] FCJ No. 88 (QL); Re O.R.R. [2000] CRDD No. 122 (QL); Re C.R.N. [2001] CRDD No. 526 (QL).

Re L.U.M.: ‘Being unmarried and without children would always subject me to ridicule and detection as a homosexual, and therefore always at risk’); see also Re C.Y.T.; Re U.F.S.; Re K.V.T. [1999] CRDD No. 64 (QL).

Re A.M.A. [2000] CRDD No. 103 ¶ 4 (QL).

Re O.R.C.

For an extensive review of documentary evidence on state protection, see Re S.C.E. [2004] RPDD No. 8 (QL).

Re U.E.T. [2000] CRDD No. 66 (QL).

Ibid., ¶ 34–6.

Ibid., ¶ 34.

Ibid., ¶ 35.

Re J.M.Y. [2000] CRDD No. 506 (QL).

Ibid., ¶ 9.

Re E.K.G.

Ibid., ¶ 12.

Tamara Letkeman, ‘Gay Man Killed after Refugee Claim Denied’, Xtra!, 6 July 2007, http://www.xtra.ca/public/viewstory.aspx?AFF_TYPE=1&STORY_ID=3287&PUB_TEMPLATE_ID=2 (accessed 29 November 2008).

Ibid.

Kassisieh, From Lives of Fear to Lives of Freedom, 55.

Ibid., 57.

Amnesty International, Love, Hate and the Law: Decriminalizing Homosexuality (London: Amnesty International, 2008), 7, http://www.amnesty.org/en/library/asset/POL30/003/2008/en/d77ce647-4cd3-11dd-bca2-bb9d43f3e059/pol300032008eng.pdf (accessed 29 November 2008).

Kassisieh, From Lives of Fear to Lives of Freedom, 57.

Ibid., 37, citing RRT Reference 060931294 [2006] RRTA 229 (unreported, Jacovides, 21 December).

Amnesty International, Love, Hate and the Law, 8.

Kassisieh, From Lives of Fear to Lives of Freedom, 37.

Authors have expressed general concerns that ‘[m]any cases show little consideration for the documentary evidence provided by the counsel for the claimant, and often this evidence is not even mentioned in the reasoning for rejection of the claim’: Cécile Rousseau, François Crépeau, Patricia Foxen, and France Houle, ‘The Complexity of Determining Refugeehood: A Multidisciplinary Analysis of the Decision-Making Process of the Canadian Immigration and Refugee Board’, Journal of Refugee Studies 15, no. 1 (2002): 43, 56.

Re D.I.Z. [2000] CRDD No. 211 (QL).

Ibid., ¶ 17–18.

Ibid., ¶ 19.

Pitrowski v. Canada (Minister of Citizenship and Immigration) [2004] RPDD No. 449 (QL).

The case referred to the following report: LAMBDA Warsaw Association, Report on Discrimination on Grounds of Sexual Orientation in Poland (Warsaw, 2001).

Twenty-two per cent of respondents reported experiencing beatings, rapes, and physical assaults, and 51% experienced harassment; see Pitrowski v. Canada (Minister of Citizenship and Immigration), ¶ 94 and 98.

Seventy-seven per cent of those who experienced violence did not report it to the police for fear of reaction of law enforcement officers and related social implications and 93.5% of those who experienced harassment did not report it to the police. Pitrowski v. Canada (Minister of Citizenship and Immigration), ¶ 95, 98.

Ibid., ¶ 104.

Ibid., ¶ 106.

Re B.B.Y.

Re J.V.D. [2003] RPDD No. 237 ¶ 26–7 (QL): ‘In the circumstances, the panel is of the opinion that, despite some restrictions, it is possible for the claimant to live as a homosexual, as he apparently did during all of the last years he spent in Lebanon. The panel is of the opinion that using the Immigration and Refugee Protection Act is not the appropriate way to shield the claimant from the prejudices that the Lebanese government and Lebanese society allegedly still have against homosexuality.’

Garcia v. Canada (Minister of Citizenship and Immigration), ¶ 29; Re U.O.D., ¶ 14.

Human Rights Watch, Hated to Death, 2.

Re V.Z.D. [2001] CRDD No. 37 (QL).

Ibid., ¶ 26.

Re U.O.D., ¶ 23.

Re A.M.A., ¶ 10.

Re J.O.U. [2007] RPDD No. 18 ¶ 14 (QL).

Ibid., ¶ 13.

James C. Hathaway, ‘The Michigan Guidelines on the Internal Protection Alternative’, Michigan Journal of International Law 21, no. 1 (1999): 211.

Rasaratnam v. Canada (Minister of Employment and Immigration) [1992] 1 FC 706, [1991] FCJ No. 1256.

Thirunavukkarasu v. Canada (Minister of Employment and Immigration) [1994] 1 F.C. 589, [1993] FCJ No. 1172.

Rasaratnam v. Canada (Minister of Employment and Immigration), ¶ 4 and 6.

IRB, Legal Services, Interpretation of the Convention Refugee Definition in the Case Law, 31 December 2005, para. 8.3, citing Chauhdry v. Canada (Minister of Citizenship and Immigration) [1998] FCJ No. 1169.

Re Q.L.O. [2001] CRDD No. 471.

Ibid.

Candace Joseph, ‘Refugees: So Near and Yet So Far’, Xtra!, 5 July 2007, http://www.xtra.ca/public/viewstory.aspx?AFF_TYPE=3&STORY_ID=3259&PUB_TEMPLATE_ID=2 (accessed 29 November 2008).

Orozco Gonzalez v. Canada [2004] RPDD No. 120 ¶ 16–17.

Ibid., ¶ 17.

Re P.L.L., ¶ 48.

Human Rights Watch, ‘We Need a Law of Liberation’.

Gutierrez v. Canada (Minister of Citizenship and Immigration) [2005] RPDD No. 179 (QL).

IRB, ‘Notice of Revocation of Persuasive Decisions’, policy note, May 2008, http://www.irb-cisr.gc.ca/en/references/policy/polnotes/rev_ta417681_10800203_18833_e.htm (accessed 29 November 2008).

IRB, ‘Persuasive Decisions’, policy note, December 2005, http://www.irb-cisr.gc.ca/en/references/policy/polnotes/persuasive_e.htm (accessed 29 November 2008).

Ibid.

Re H.K.T. [2007] RPDD No. 28 ¶ 15 (QL).

Andrew Reding, Sexual Orientation and Human Rights in the Americas (New York: World Policy Institute, 2003), 55–62. The report was cited in Gutierrez v. Canada (Minister of Citizenship and Immigration), 3, n. 5.

Parrales v. Canada (Minister of Citizenship and Immigration) [2005] RPDD No. 326 ¶ 43–4 (QL); Re Z.C.J. [2007] RPDD No. 46 ¶14 (QL); Re F.Y.G. [2007] RPDD No. 44 ¶ 18 (QL); Martinez v. Canada (Minister of Citizenship and Immigration) [2005] RPDD No. 68 ¶ 22 (QL).

Letkeman, ‘Gay Man Killed after Refugee Claim Denied’.

Re H.K.T. [2007] RPDD No. 28, 15 (QL).

Ibid.

Re H.W.X. [2007] RPDD No. 4 ¶ 26 (QL).

IRB, ‘Treatment of Homosexuals and Availability of State Protection’, responses to requests for information, June 2006, http://www.cisr-irb.gc.ca/fr/recherche/rdi/index_f.htm?action=record.viewrec&gotorec=450264 (accessed 29 November 2008).

IRB, ‘Notice of Revocation of Persuasive Decisions’.