Rejecting Refugees on the Basis of Sexual Orientation

From the January 31, 2008, XTRA!, page 20, an editorial about the rejection of refugees because they fear for their safety because of their sexual orientation:

REJECTING REFUGEES

Editorial

Julia Garro

Imagine you are a queer born in a country where homophobic discrimination and violence are commonplace. If you have the chance to leave, wouldn't you choose to immigrate to a country that offers queers protection under the law and recognizes same-sex relationships?

Canada is the victim of its own successful queer-rights campaigns, in as much as it can be considered a bad thing that the country attracts hundreds if not thousands of queer immigrants and refugees every year. And I have no doubt that this is exactly the way Harper's Conservatives see things. Hell, they have enough trouble with their homegrown homos, they're not exactly going to fall over themselves to welcome more of us, are they?

It is too easy for legitimate refugee claimants to fall through the cracks. It's too easy for one immigration and Refugee Board (IRB) member's opinions or misconceptions about homosexuality to result in negative decisions. As it stands today Canada's refugee system offers limited options for appealing bad decisions (although there is a private member's bill working its way through parliament that could soon change that).

When an individual claims refugee status on the grounds of sexual orientation they must prove that they really are queer and that they really are experiencing persecution in their homeland as a result of their queerness. For those coming from countries where gay sex is criminalized outright this second criteria is relatively easy to establish. What is far more difficult are the cases of those individuals coming from countries where laws exist to protect queers from discrimination but where the state's ability or willingness to enforce these laws is lacking; where the dominant culture allows homophobia and homophobic violence to flourish.

In several well-published cases the IRB has ruled that queers coming from Latin America are not eligible for refugee status on the grounds that the situation for queers there isn't all that bad. These decisions point to democratic governments, human rights laws and burgeoning queer movements as proof. In some cases the decisions have cited "internal flight options," which is to say that queers within countries where gay ghettos exist ought to move to those ghettos and enjoy greater protection afforded by greater numbers. In other cases booming gay tourist industries in those same countries have been put forward as evidence that local culture accepts homosexuality, neglecting the glaring complicating factor of tolerance for economic gain.

The trouble with these metrics is that they don't adequately capture what things are like on the ground for real human beings. It's all well and good to say that homophobic violence is technically illegal in a given country, but if queers are afraid of reporting violence against them for fear of abuse from local police then those laws mean nothing. Moreover the laws are cold comfort to its citizens if a state can't adequately protect them from becoming victims of these crimes.

Take for example the case of Mexican refugee claimant Jose Arturo Contreras Hernandez. In 2008 the IRB ruled that his fear of persecution based on his sexual orientation was not well-founded that despite being thrown out of his home at age 14, beaten by his father, attacked by coworkers in his place of work and kidnapped and threatened with a gun after leaving a club, he has nothing to worry about in being returned to Mexico.

Hernandez was recently granted a second hearing by a federal justice (see page 19 for more), but in two other cases - those of Mexican Leonardo Zuniga and Nicaraguan Alvaro Orozco - the claimants are rapidly running out of options that would allow them to avoid being deported to countries where they fear for their safety. In these cases appeals have been made to Diane Finley, Minister of Citizenship and Immigration to step in. As yet her office has been silent on these cases, in spite of appeals from fellow MPs, petitions and media pressure. (You can contact Finley at Minister @cic.gc.ca.)

As long as Harper's Conservatives are in power the ultimate fail-safe machanism in our flawed refugee system - the ability for the Minister of Citizenship and Immigration to step in and grant a ministerial permit in individual cases - cannot be expected to work in our favour.

Julia Garro is Xtra's associate editor.