Effective date: May 1, 2017
Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act
This Chairperson's Guideline is dedicated to the late Nicole LaViolette, Professor, Faculty of Law, University of Ottawa, whose work informed and inspired the development of the Guideline.
1.1 The purpose of this Guideline is to promote greater understanding of cases involving sexual orientation and gender identity and expression (SOGIE) and the harm individuals may face due to their non-conformity with socially accepted SOGIE norms. This Guideline addresses the particular challenges individuals with diverse SOGIE may face in presenting their cases before the Immigration and Refugee Board of Canada (IRB) and establishes guiding principles for decision-makers in adjudicating cases involving SOGIE.
1.2 This Guideline applies to all four divisions of the IRB, namely, the Immigration Division (ID), the Immigration Appeal Division (IAD), the Refugee Protection Division (RPD), and the Refugee Appeal Division (RAD).
1.3 This Guideline applies to decision-makers and other IRB personnel who are involved in the processing or adjudication of cases before the Board.
1.4 This Guideline provides guidance on the following themes:
- Understanding the unique challenges faced by individuals with diverse SOGIE in presenting evidence pertaining to SOGIE;
- Using appropriate terminology and language in both proceedings and reasons for decision when referring to individuals with diverse SOGIE;
- Protecting sensitive information in reasons for decision;
- Avoiding stereotyping and inappropriate assumptions when making findings of fact;
- Assessing credibility; and
- Increasing awareness of circumstances unique to individuals with diverse SOGIE that may affect findings of fact and findings of mixed fact and law in each of the four divisions.
2.1 This Guideline refers to individuals with diverse sexual orientations and gender identities and expressions (SOGIE), who are individuals with, or who are perceived to have, a sexual orientation or gender identity or expression that does not conform to socially accepted norms. Such individuals include, but are not limited to, lesbians, gay men, and bisexual, trans, intersex and queer individuals. This Guideline also refers to cisgender individuals and/or heterosexual individuals who may not conform, or who may not appear to conform, to socially accepted SOGIE norms.
2.2 Gender: Gender refers to the characteristics, attitudes and behaviours that are socially or culturally associated with a person's sex. The categories and specific characteristics associated with gender may vary culturally. An individual's gender includes gender identity and expression, both of which can be fluid and flexible. An individual's gender identity and expression may or may not conform to the socially accepted gender norms of their culture.
2.3 Sex: Sex is a status assigned at birth based on biological markers of sex, including reproductive and sexual anatomy and chromosomes. Sex is typically designated as male or female. Sex can also refer to intersex.
2.4 The IRB recognizes that gender identity and gender expression are distinct, but interrelated, concepts.
Gender identity: Each person's internal and individual understanding of their gender. It is their sense of being a woman, a man, both, neither, or being anywhere along the gender spectrum. A person's gender identity may be the same as, or different from, their birth-assigned sex. A person's understanding of their gender may change.
Gender expression: How a person expresses or presents themselves in ways that may be associated with gender, including how a person is perceived in relation to gender. This can include behaviour and outward appearance such as dress, hair, makeup, body language, mannerisms, gait, and voice. A person's chosen name and pronoun are also common ways of communicating gender. How a person expresses their gender may change.
2.5 Sexual orientation: A person's physical, romantic and/or emotional attraction to, and/or intimate relations with, individuals of a different gender, the same gender, no gender, or more than one gender. A person's understanding of their sexual orientation may change.
2.6 There is no standard terminology that adequately captures the diversity within and between the evolving concepts of sexual orientation and gender identity and expression across cultures and societies.
2.7 While the following concepts are commonly used, this acronym and list are not exhaustive and may change over time. Persons appearing in proceedings before the IRB may not be familiar with or identify with these concepts. Individuals may self-identify with concepts other than those listed below.
2.8 LGBTIQ+: An acronym that combines concepts of sexual orientation, gender identity and expression, and intersex, and that refers to, but is not limited to, lesbians; gay men; and bisexual, trans, intersex and queer individuals:
- Lesbian: An individual who identifies as a woman and whose physical, romantic and/or emotional attraction is primarily to other individuals who identify as women.
- Gay man: An individual who identifies as a man and whose physical, romantic and/or emotional attraction is primarily to other individuals who identify as men. Some women use gay to describe their same-sex attraction.
- Bisexual: An individual who is physically, romantically and/or emotionally attracted to more than one gender. Some bisexual individuals may also identify as pansexual; these are individuals who may feel physical, romantic and/or emotional attraction to people of any gender or sex.
- Trans: An umbrella concept that refers to any individual whose gender identity or gender expression differs from the sex they were assigned at birth. This concept includes, but is not limited to: individuals who have made bodily changes using surgical, medical or other means, or who plan to make bodily changes to align their sex characteristics with their gender identity; individuals whose gender identity does not align with their sex assigned at birth but who have no wish to change their physiology; people who identify as having multiple genders or as not having a gender; individuals whose gender identity changes from time to time; or people with any other gender identity that is not in line with socially accepted norms of expected behaviours based on gender. Gender identity is different from sexual orientation, and a trans individual may be heterosexual, gay, lesbian, bisexual, or asexual.
- Intersex: A concept that refers to individuals whose physical sex characteristics, such as their reproductive or sexual anatomy or chromosome patterns, do not conform with typical notions of female or male sex. These patterns may become apparent at birth, may develop later (i.e. at puberty or in adulthood), or may remain unrecognized.
- Queer: An umbrella concept that refers to a person whose SOGIE does not conform to socially accepted SOGIE norms, and may include individuals who are lesbian, gay, bisexual, trans or intersex.
2.9 Cisgender: An individual whose gender identity aligns with the sex they were assigned at birth.
3. Understanding the challenges faced by individuals with diverse SOGIE in establishing their SOGIE
3.1 Depending on factors such as race, ethnicity, religion, faith or belief system, age, disability, health status, social class and education, individuals with diverse SOGIE recognize and act on their SOGIE differently.Note 1 An individual's self-awareness and self-acceptance of their SOGIE may present as a gradual or non-linear process. There is no standard set of criteria that can be relied upon to establish an individual's identification as an individual with diverse SOGIE.
3.2 An individual's testimony may be the only evidence of their SOGIE where, in a given case, corroborative or additional evidence is not reasonably available.
3.3 Many individuals with diverse SOGIE conceal their SOGIE in their country of reference out of mistrust or fear of repercussion by state and non-state actors, or due to previous experiences of stigmatization and violence. These circumstances may manifest themselves as an individual being reluctant to discuss, or having difficulty discussing, their SOGIE with a decision-maker based on a fear or general mistrust of authority figures, particularly where intolerance or punishment of individuals with diverse SOGIE are sanctioned by state officials in an individual's country of reference.
3.4 Individuals with diverse SOGIE who have been in immigration detention while in Canada may face additional challenges due to the particular difficulties individuals with diverse SOGIE may face in detention.
3.5 The intersection of SOGIE with additional marginalization factors such as race, ethnicity, religion, faith or belief system, age, disability, health status, social class and education may create both an increased risk of harm as well as distinct and specific risks of harm. The intersection of these factors, which are non-exhaustive, may impact an individual's access to state protection or an internal flight alternative (IFA).
3.6 Individuals with diverse SOGIE may face a heightened risk of experiencing mental health challenges, often stemming from a history of social isolation, mistreatment and lack of social support in their countries of reference.Note 2 Individuals with diverse SOGIE may experience internalized homophobia, sexual stigma or oppression. They may also have depression, post-traumatic stress disorder relating to past physical or sexual violence, anxiety, suicidal tendencies, dissociation, decreased capacity for trust, and other trauma based on their SOGIE.Note 3 These issues may manifest themselves in a variety of ways and can have an impact on an individual's ability to testify in a proceeding before the IRB.Note 4
3.7 Some individuals with diverse SOGIE may be particularly vulnerable due to mental health issues or traumatic circumstances experienced because of their SOGIE. To help enable an individual to present their case before the IRB, the need for procedural accommodations may arise, pursuant to the Chairperson's Guideline 8: Procedures With Respect to Vulnerable Persons Appearing Before the IRB.Note 5 Accommodations under Guideline 8 should be considered by the decision-maker, whether requested by a party or on the decision-maker's own initiative, wherever it is appropriate to do so.
3.8 Country condition information on the treatment of individuals with diverse SOGIE in some countries can be limited or even non-existent.Note 6 This under-reporting may be more pronounced for individuals who face marginalization and a further risk of under-reporting due to the intersection of race, ethnicity, religion, faith or belief system, age, disability, health status, social class and education.
3.9 In some circumstances, individuals with diverse SOGIE may be part of joint claims or appeals that inhibit their ability to disclose their sexual orientation or gender identity or expression. When a decision-maker becomes aware that the individual wishes to assert an independent claim or appeal based on sexual orientation or gender identity or expression, the claims or appeals should, where appropriate, be separated.
3.10 In some circumstances, a designated representative other than a parent or guardian may need to be appointed for a minor with diverse SOGIE.
4. Use of appropriate language
4.1 All participants in proceedings before the IRB have a responsibility to be respectful toward other participants. Part of this responsibility includes the use of appropriate language by all participants. Appropriate language is defined as language that reflects that person's self-identification and avoids negative connotations. Individuals should be addressed and referred to by their chosen name, terminology, and pronouns. Decision-makers should address any issues about a participant's conduct in a proceeding, including tone and demeanour, or any misunderstandings about the use of appropriate language, as soon as they arise. Note 7
4.2 Terminology used to refer to individuals with diverse SOGIE may have negative connotations, and the use of this terminology may create difficulties for the person concerned during the proceeding. It is important for participants to be aware of, and sensitive to, the cultural nuances in terminology employed in the proceeding.
4.3 In addition to providing objective and impartial interpretation services, interpreters have a responsibility to be respectful of all hearing room participants. This includes using the chosen terminology, names, or pronouns requested by the individual concerned. Decision-makers should address any misunderstandings about the use of appropriate language and terminology, or the interpreters' expected conduct, as soon as they arise.
5. Protection of sensitive information
5.1 While proceedings before the RPD and the RAD are private, proceedings at the ID and the IAD are generally public,Note 8 and sensitive information concerning an individual's SOGIE could be accessed by the public. Additionally, even though proceedings before the RPD and the RAD are private, if a case is before the Federal Court for judicial review, the information in the Federal Court file pertaining to the case becomes publicly accessible.
5.2 As a result, additional safeguards for the protection of sensitive information may be considered, upon request by the parties or on the initiative of a decision-maker, to limit public dissemination of this information. Decision-makers may, pursuant to section 166 of the Immigration and Refugee Protection Act, order that particularly sensitive information be treated as confidential where the factors under section 166 have been met. In such cases, a decision-maker may make a confidentiality order to further protect the information in question.Note 9
5.3 Additionally, in drafting reasons for decision, decision-makers should, wherever possible, avoid the use of personal identifiers or sensitive information that is not necessary to explain the reasoning in the decision.Note 10
6. Avoiding stereotyping when making findings of fact
6.1 Decision-makers should not rely on stereotypes or inappropriate assumptions in adjudicating cases involving SOGIE as they derogate from the essential human dignityNote 11 of an individual. Examples of stereotypes that should not be relied on in adjudicating cases involving SOGIE include, but are not limited to, the following:
- Individuals with diverse SOGIE have feminized or masculinized appearances or mannerisms;Note 12
- Individuals with diverse SOGIE do not participate in cultural or religious customs or traditions;Note 13
- Romantic or sexual relationships share the same dynamics and characteristics across cultures;Note 14
- An individual knew they were an individual with diverse SOGIE at a young age, or became sexually active at a young age;Note 15
- Trans individuals will seek to have surgical or physiological treatment if they have access to that treatment;
- Individuals with diverse SOGIE are promiscuous or sexually active and do not engage in exclusive relationships;Note 16
- Individuals with diverse SOGIE have had same-sex sexual experiences or relations;Note 17
- Individuals with diverse SOGIE would not have had heterosexual sexual experiences or relations;Note 18
- Individuals with diverse SOGIE would not voluntarily enter a heterosexual marriage or have children;Note 19
- An individual's SOGIE can be determined by an individual's occupation;Note 20 and
- Individuals with diverse SOGIE would actively participate in LGBTIQ+ culture in Canada, including frequenting LGBTIQ+-predominant areas and social establishments, or be involved in community organizations and groups.Note 21
7. Establishing principles for assessing credibility and evidence pertaining to SOGIE
7.1 While an individual's experiences and behaviours related to their SOGIE may be expressed in both the private and public spheres, an individual's testimony may, in some cases, be the only evidence of their SOGIE.Note 22
7.2 Corroborative evidence
7.2.1 Corroborating evidence from family or friends may not be available in cases involving SOGIE.Note 23 An example of when this type of corroboration may not be available is when an individual has concealed their SOGIE because of perceived stigma or risk of harm.Note 24
7.2.2 Similarly, medical evidence that serves to corroborate an individual's account may not be available in cases involving SOGIE. An example is that it is not always reasonable to expect an individual to have sought medical treatment following an assault where they have been forced to conceal their SOGIE. Where this evidence is available, it can be presented by the individual for the decision-maker to consider.
7.2.3 An individual with diverse SOGIE may not have participated in LGBTIQ+ culture, organizations or events in their country of reference, nor do so once in Canada. However, evidence of such participation may be presented by the individual for the decision-maker to consider.Note 25
7.2.4 It is not expected that an individual establish their SOGIE through the use of sexually explicit photographs, videos or other visual material.Note 26
7.3 Questioning an individual
7.3.1 Questioning an individual about their SOGIE can feel intrusive and may be difficult for the individual concerned. Questioning should be done in a sensitive, non-confrontational manner. Open-ended questions should be employed where appropriate.
7.4.1 Cases involving individuals with diverse SOGIE are no different from other cases before the IRB in that decision-makers may draw a negative inference from material inconsistencies or contradictions in the evidence that have no reasonable explanations.Note 27 Decision-makers should examine whether there are cultural, psychological or other barriers that may reasonably explain the inconsistency. For instance, it may be difficult for an individual who has concealed their SOGIE to disclose and discuss it with government authorities at a port of entry, which may give rise to an inconsistency between information from the port-of-entry interview and testimony at a hearing.Note 28 Decision-makers also need to be careful that the inconsistencies are not based on stereotypes or inappropriate assumptions.Note 29
7.5 Implausibility findings
7.5.1 Implausibility findings must not be based on stereotypes. For example, it may be plausible that an individual with diverse SOGIE has engaged in heterosexual encounters.Note 30 It may also be plausible that an individual with diverse SOGIE has engaged in activity that might put them at risk in their country of reference.Note 31
7.6.1 Testimony about same-sex relationships that is vague and lacking in detail may support a negative credibility inference;Note 32 however, decision-makers should examine whether there are cultural, psychological or other barriers that may explain the manner in which the testimony is delivered. When making a vagueness finding in a case involving an individual with diverse SOGIE, a decision-maker must, as in other cases, provide specific reasons to support a finding that the testimony is not comprehensive or fulsome.Note 33
7.7 Material omissions
7.7.1 Omissions from testimony of significant events or details relating to the life of an individual with diverse SOGIE may, as in other cases, support a negative credibility assessment if there is no reasonable explanation for the omission.Note 34 Decision-makers should examine whether there are cultural, psychological or other barriers that may reasonably explain the omission.
8. Persons appearing in proceedings before the Refugee Protection Division and the Refugee Appeal Division
8.1 This Guideline addresses the following issues that decision-makers face when determining claims based on SOGIE:
- To what extent can an individual with, or who is perceived to have, diverse SOGIE successfully rely on any one, or a combination, of the five enumerated grounds of the Convention refugee definition?
- Is the type of treatment to which an individual with, or who is perceived to have, diverse SOGIE may be subjected a serious interference with a basic human right, such that it gives rise to a well-founded fear of persecution in the particular circumstances of a case?
- What particular issues are raised for an individual with, or who is perceived to have, diverse SOGIE when seeking state protection or an IFA?
8.2 Convention ground: membership in a particular social group
8.2.1 In Ward, the Supreme Court of Canada recognized that sexual orientation can be characterized as a particular social group.Note 35 This extends to gender identity and expression.
8.3 Perceived or imputed SOGIE
8.3.1 Individuals may be subjected to persecution by reason of their perceived or imputed SOGIE. Note 36 Examples may include:
- Individuals who do not fit stereotypical appearances or conform to socially accepted SOGIE norms may be perceived as individuals with diverse SOGIE when they are not;
- Those advocating for, or reporting on, SOGIE rights may be perceived to be individuals with diverse SOGIE; and
- Individuals who provide support for individuals with diverse SOGIE—for example, partners who remain with individuals with diverse SOGIE through, for instance, gender reassignment surgeries—may be perceived to be individuals with diverse SOGIE.
8.3.2 The fear of family members of an individual who is, or is perceived to be, an individual with diverse SOGIE may also have a nexus to the Convention ground of membership in the particular social group of the family.Note 37
8.4 Other Convention grounds
8.4.1 The fears of individuals with diverse SOGIE may also have a nexus to one or more of the other Convention grounds—namely race, religion, nationality or political opinion—in addition to membership in a particular social group. Examples may include:
- Political opinion: In addition to their status as an individual with diverse SOGIE, political activism by an individual to promote SOGIE rights may put that individual at increased risk of persecution;Note 38
- Religion: An individual may face persecution based on religion if their SOGIE is viewed as diverging from the teachings of that particular religion;Note 39 or
- Race or Ethnicity: Individuals with diverse SOGIE may face persecution based on race or ethnicity if they belong to a particular ethnic group that is targeted in their country of reference.Note 40
8.4.2 Where an individual with diverse SOGIE has a claim that is not based on their SOGIE, this Guideline is nonetheless applicable in evaluating credibility and in assessing the availability of state protection or an IFA.
8.5 Establishing a well-founded fear of persecution
8.5.1 Concealment of SOGIE as persecution
184.108.40.206 It is well established in law that being compelled to conceal one's SOGIE constitutes a serious interference with fundamental human rights that may therefore amount to persecution, and a claimant cannot be expected to conceal their SOGIE as a way to avoid persecution in their country of reference.Note 41
220.127.116.11 Some individuals with diverse SOGIE may face differential risk due to additional factors such as race, ethnicity, religion, faith or belief system, age, disability, health status, social class and education. Where appropriate, these intersectional factors should be considered when determining whether an individual has established a well-founded fear of persecution.
18.104.22.168 Individuals with diverse SOGIE may face additional risks because of their gender, including domestic violence, forced marriage, sexual trafficking, honour crimes, as well as discrimination with respect to housing, employment, education, health and social services.
22.214.171.124 Decision-makers need to be mindful of the overlap or complementing relationship that gender, sexual orientation, and gender identity and expression share, and consequently may need to consider the application of both this Guideline and the Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related PersecutionNote 42 where appropriate. For instance, a lesbian may be vulnerable to risk as a woman and as a lesbian. Similarly, a trans or intersex individual may be vulnerable to risk as a woman and as a trans or intersex individual.Note 43
8.5.3 Bisexual individuals
126.96.36.199 Bisexual individuals may face risks of mistreatment similar to those faced by gay men or lesbians.Note 44 However, bisexual individuals may also face specific types of discrimination or mistreatment.
8.5.4 Trans and intersex individuals
188.8.131.52 Trans and intersex individuals may be particularly vulnerable to systemic discrimination and acts of violence due to their non-conformity with socially accepted norms of gender presentation. Trans and intersex individuals may face additional risks because of the lack of legal recognition of their gender identity or status in many countries.
184.108.40.206 Trans and intersex individuals may face elevated risks of physical and sexual violence and may experience discrimination in employment, access to health care and medical treatment, and receipt of social services.
220.127.116.11 Trans and intersex individuals may, in particular, be at risk while in detention, for instance, due to the placement of such individuals in solitary confinement or in a single-sex inmate population that does not correspond to the gender with which they identify.
18.104.22.168 Gender-related inconsistencies may be found in the personal identity documents of trans or intersex individuals, and caution should be exercised before drawing negative inferences from discrepancies in gender identification documents involving trans or intersex individuals.
22.214.171.124 A minor who identifies as an individual with diverse SOGIE may be particularly vulnerable to harm. An intersex minor may face an elevated risk of harm. Examples of harm that may amount to persecution for a minor with diverse SOGIE include sexual and physical violence; forced medical procedures such as surgery, hormonal therapy, or sexual orientation conversion interventions; or forced confinement. Examples of discriminatory treatment experienced by a minor with diverse SOGIE that may cumulatively amount to persecution in the particular circumstances of a case include sustained family rejection, social ostracism, denial of education, expulsion from school, harassment in school and bullying.
126.96.36.199 Decision-makers may need to consider the application of the Chairperson's Guideline 3: Child Refugee Claimants—Procedural and Evidentiary IssuesNote 45 in a case involving a minor with diverse SOGIE.
8.5.6 Criminal laws and laws of general application
188.8.131.52 The existence of laws that criminalize or suppress non-conforming sexual orientations, sexual behaviours, or gender identities or expressions may be indicative that a claimant has a well-founded fear of persecution if the laws are enforced.Note 46 Further, even if such laws are not enforced, their existence may create a climate of impunity for perpetrators of violence and contribute to societal discrimination against individuals with diverse SOGIE as they may reinforce negative societal attitudes against this population.Note 47 The existence of such laws, even though unenforced, may also be used by state actors and private individuals to threaten individuals with diverse SOGIE.Note 48
184.108.40.206 Where legislation exists that criminalizes same-sex sexual activity between men, this will likely mean that such legislation applies to same-sex sexual activity between women or other individuals with diverse SOGIE.
220.127.116.11 The existence of laws of general application that are used to target individuals with diverse SOGIE are important to consider. Even where same-sex relations or sexual or gender non-conforming behaviours are not criminalized, laws of general application, such as public morality or public order laws, that are selectively applied and enforced against individuals with diverse SOGIE in a discriminatory manner may amount to persecution in the particular circumstances of a case.Note 49
18.104.22.168 Individuals with diverse SOGIE may have a well-founded fear of persecution in their country of reference even if they have not been personally targeted in the past. An individual's profile may be sufficient to demonstrate a well-founded fear of persecution in their country of reference given conditions that may include discriminatory laws or an atmosphere of intolerance and repression.
8.5.7 Absence of legislation
22.214.171.124 The absence of laws that criminalize or discriminate against individuals with diverse SOGIE in a country does not signify a lack of discrimination in that country, nor does it indicate that state protection is available.
126.96.36.199 The absence of laws allowing same-sex marriage or spousal economic benefits does not, on its own, amount to a serious violation of a fundamental human right that would constitute persecution.Note 50
8.5.8 Forced medical treatment
188.8.131.52 Individuals with diverse SOGIE may be forced to undergo medical treatment including "corrective" sexual violence, non-consensual medical and scientific experimentation, forced sex-reassignment or "corrective" surgery, forced traditional cleansing rituals or religious exorcisms, forced institutionalization, forced psychotherapy, forced electroshock therapy, and forced drug injection and hormonal therapy.Note 51 Such treatment violates an individual's security of the person and is persecutory.
8.5.9 Cumulative discrimination amounting to persecution
184.108.40.206 Individuals with diverse SOGIE may also face instances of harassment or discrimination that cumulatively amount to a well-founded fear of persecution.Note 52 The following non-exhaustive scenarios could, on a cumulative basis, constitute persecution in the particular circumstances of a case:
- Restrictions on access to employment;Note 53
- Restrictions on access to education;
- Restrictions on access to health care;Note 54
- Restrictions on access to housing;Note 55
- Restrictions on access to social services;
- Reliance on sex work where the individual has been denied reasonable access to other means of financial support;Note 56
- Being the target of repeated acts of intimidation;
- Systematic harassment from police; or
- Military hazing.Note 57
8.5.10 Country condition information
220.127.116.11 Reliable, relevant and up-to-date country condition information on individuals with diverse SOGIE in some countries can be scarce, incomplete or general in nature.Note 58 A lack of available information may be more pronounced for certain individuals. For example, country condition information about the situation of individuals with diverse SOGIE in a given country may focus on gay men and may not include specific information about, for instance, lesbians, trans or intersex individuals.Note 59 A lack of information may be further exacerbated for certain individuals with diverse SOGIE who are, for example, racial minorities or persons with disabilities.
18.104.22.168 This lack of information may not be indicative of a lack of persecution or a lack of problems within the country of reference. A scarcity of reporting on the situation of individuals with diverse SOGIE in a country may be due to the stigmatization or illegality of these individuals in that country.Note 60 In such cases, decision-makers may wish to consider the circumstances in the country of reference that may have informed the absence of documentation of the treatment of individuals with diverse SOGIE, including fear of reporting abuses to authorities by individuals, stigmatization or marginalization of individuals in the country of reference resulting in under-reporting, the lack of a free press, or the non-existence of non-governmental support organizations operating in the country.
22.214.171.124 An individual with diverse SOGIE may reasonably delay making a claim for refugee protection based on SOGIE out of a fear of reprisal for themselves or family members. A reasonable delay may also arise out of an individual's reluctance to reveal their SOGIE to a spouse or other family member, or in their realizing or accepting their SOGIE.
8.5.12 Sur place claims
126.96.36.199 An individual with diverse SOGIE may develop a well-founded fear of persecution after leaving their country of reference. Sur place claims can arise in situations where there is a change in an individual's SOGIE, such as when an individual realizes that they are an individual with diverse SOGIE, or accepts themselves as such, after leaving their country of reference. An example of such a situation may be a claimant who was a minor at the time they exited their country of reference who may only realize their SOGIE later on. Sur place claims can also be based on a change of circumstances in the claimant's country of reference or a change in the claimant's activity since leaving their country of reference, such as deciding to express their SOGIE publicly in their country of refuge or becoming politically involved in SOGIE issues in that country. In such cases, claimants may not have personally experienced persecution based on their SOGIE in their country of reference.Note 61
8.6 State protection
8.6.1 As in all cases, in considering whether state protection is available to an individual with diverse SOGIE, decision-makers must focus on the personal circumstances of the claimant, in conjunction with a fact-based analysis of the operational adequacy and effectiveness of state protection in the country of reference.Note 62
8.6.2 When examining the personal circumstances of a claimant, it is important to consider that individuals with diverse SOGIE may face differential protection or uneven access to state protection based on additional factors including their race, ethnicity, religion, faith or belief system, age, disability, health status, social class and education.
8.6.3 Where individuals with diverse SOGIE do not disclose their SOGIE or report incidents of violence out of fear of further reprisal from the state or non-state actors, it may be unreasonable for an individual with diverse SOGIE to approach the state for protection.Note 63
8.6.4 The existence of laws criminalizing non-conforming sexual orientations, sexual behaviours, or gender identities or expressions and the enforcement of these laws by the state may be evidence that state protection is inadequate.Note 64 Even if irregularly enforced, the criminalization of the existence or behaviours of individuals with diverse SOGIE may create a climate of impunity for perpetrators of violence and normalize acts of blackmail, sexual abuse, violence, and extortion by state and non-state actors.
8.6.5 The decriminalization of same-sex relations or sexual or gender non-conforming behaviours, or the introduction of a new law, program or other government actionNote 65 designed to improve the situation of individuals with diverse SOGIE in a country, need to be carefully assessed to determine whether state protection is adequate at the operational level. In these cases, decision-makers need to examine the degree of actual implementation, the effectiveness, and the durability of these legislative or other improvements in light of how state actors and general society continue to treat individuals with diverse SOGIE.Note 66
8.6.6 Evidence about the availability of state protection for individuals with diverse SOGIE in some countries can be scarce or non-existent. This scarcity may be due to the stigmatization of individuals with diverse SOGIE in a given country and a consequent under-reporting or fear of reporting abuses to authorities by individuals, all of which may indicate a lack of state protection. In such cases, decision-makers may wish to consider the circumstances in the country of reference that may have informed the absence of documentation on the availability of state protection for individuals with diverse SOGIE, including the lack of a free press, or the non-existence of non-governmental support organizations operating in the country.
8.7 Internal flight alternative (IFA)
8.7.1 It is well-established in law that an IFA is not viable if an individual with diverse SOGIE must conceal their SOGIE in order to live in that location.Note 67
8.7.2 The following non-exhaustive factors may impact whether a proposed IFA is reasonable for an individual with diverse SOGIE in the particular circumstances of a case:
- The ability to secure employment;Note 68
- The ability to secure housing;
- Access to medical treatment, including access to treatment for individuals with HIV,Note 69 as well as treatment related to the transition process for trans individuals, or medical treatment to delay puberty for minors who have not yet decided on transitioning;
- Equal access to social services; and
- The existence of family or social support networks for those whose age, physical or mental health, or other intersectional factors indicate such a need.Note 70
9. Persons appearing in proceedings before the Immigration Division
9.1 In the application of the non-exhaustive factors in Section 248 of the Immigration and Refugee Protection Regulations (IRPR), consideration should be given by the ID to the particular challenges faced by individuals with diverse SOGIE.
9.2 The LGBTIQ+ community, and organizations that support it, may be considered in evaluating the existence of strong ties to a community in Canada under Section 245(g) of the IRPR.
9.3 When the ID decides to order the release of an individual with diverse SOGIE following a detention review, the ID may consider any particular challenges raised related to the individual's SOGIE in setting terms and conditions of release.
10. Persons appearing in proceedings before the Immigration Appeal Division
10.1 Ascertaining the genuineness of a spousal or conjugal relationship in a sponsorship appeal may be difficult in situations where the sponsor, foreign national, or both identify as individuals with diverse SOGIE and are from a country that criminalizes, stigmatizes or does not recognize same-sex relationships.Note 71 The sponsor, foreign national, or both may not be able to display their relationship in public or disclose the relationship to their friends and family members. It can therefore be disproportionally difficult to corroborate the relationship with the indicators commonly used to evaluate a genuine spousal or conjugal relationship. These indicators include shared shelter, personal behaviours, social activities, economic support and the societal perception of the couple.Note 72
10.2 Relationships involving individuals with diverse SOGIE may not evolve along the same trajectory as non-SOGIE relationships; therefore, preconceived notions about how partners should behave with one another, or with their friends and family, should be avoided when evaluating the genuineness of the relationship. For example, a person in a relationship with a trans or intersex partner may decide not to disclose the gender identity of the partner to friends and family. As set out under section 6, decision-makers are to avoid relying on stereotypes regarding individuals with diverse SOGIE or drawing comparisons with non-SOGIE individuals.
10.3 Individuals with diverse SOGIE may face unique circumstances that ought to be taken into consideration when assessing humanitarian and compassionate grounds in sponsorship appeals. Generally, the IAD will measure the compassionate and humanitarian aspects of an individual's case in relation to the legal obstacles to admissibility. For example, an individual with diverse SOGIE who is sponsoring a parent may be fearful of visiting that parent if the country is intolerant of individuals with diverse SOGIE. In such a case, it will be a particular hardship to the sponsor if the parents are inadmissible and the sponsor cannot visit them. Similarly, an individual with diverse SOGIE who is being sponsored may be living in isolation, and the emotional support and security that can be provided by the sponsor is an important factor to consider.
10.4 In exercising their ability to grant discretionary relief on humanitarian and compassionate grounds in a removal order appeal, decision-makers should take into account the particular hardship that an individual with diverse SOGIE might face if they are removed from Canada.Note 73 Indicators of hardship may include concealment to avoid harm, harassment, ostracism from the family and community, and discrimination in access to social services and employment opportunities. Consideration should also be given to particular vulnerabilities due to intersectionality and mental health. Additionally, community ties, family support and establishment in Canada may be difficult to establish where the individual is isolated from their family and community or faces challenges by reason of their SOGIE. These considerations would apply as well in a Minister's appeal from an ID decision not to issue a removal order against an individual with diverse SOGIE.
10.5 In exercising their ability to grant discretionary relief on humanitarian and compassionate grounds in a residency obligation appeal, decision-makers should take into account the particular hardship that an appellant with diverse SOGIE might face in their country. Indicators of hardship may include concealment to avoid harm, harassment, ostracism from the family and community, and discrimination in access to social services and employment opportunities. Consideration should also be given to particular vulnerabilities due to intersectionality and mental health.
10.6 In exercising their discretion to consider humanitarian and compassionate grounds in a removal order appeal involving a misrepresentation pertaining to the identity of an individual with diverse SOGIE, decision-makers should also take into account the particular circumstances that gave rise to the misrepresentation, including conditions in the individual's country of reference such as the existence of laws permitting a change of gender at the time of the misrepresentation.Note 74
10.7 In all appeals, the best interests of a child with diverse SOGIE, or who is the child of an appellant or applicant with diverse SOGIE, is a factor to consider.
For more information, please contact:
Director, Policy, Outreach and Engagement Directorate
Policy, Planning and Corporate Affairs Branch
Minto Place - Canada Building
344 Slater Street, 14th Floor
Ottawa, Ontario K1A 0K1
signed Mario Dion