Last updated on November 29th, 2019
Sharalyn Jordan is an Assistant Professor in the Faculty of Education at Simon Fraser University. She works with with community agencies that support LGBTQ and refugee mental health as they develop and assess their counselling practices and programs.
In this episode we discuss how to overcome systemic barriers in LGBTQ asylum claims. Much of this episode is dedicated to establishing how LGBTQ asylum claimants must prove their sexual identity during their refugee claim. How does someone from a country where being gay is illegal and who has been a closeted homosexual for their entire life prove that they are gay? What do Immigration and Refugee Board members expect? How can counsel assist? Finally, we discuss whether LGBTQ asylum claimants should even be required to prove their sexual orientation as part of their asylum claim.
1:13 – Sharalyn provides an overview of the history of how Canada’s immigration and refugee system has restricted the ability of LGBT people to relocate to Canada.
5:12 – Canada’s immigration and refugee system often requires that people prove their sexual orientation. How can LGBT people prove their orientation?
20:00 – Are there circumstances in which an Immigration and Refugee Board member can reject a person’s claimed identity?
34:30 – What degree of membership in a LGBT community is required or the norm for an LGBT refugee claimant?
36:40 – What is the standard of persecution in the LGBT context?
44:10 – What changes does Sharalyn think need to be made to Canada’s refugee system?
53:30 – Steven expresses concerns with the idea of not questioning one’s identity, and has his concerns answered.
Post Show Notes
After listening to this episode one might want to see examples of decisions where the Refugee Protection Division engaged in reasoning that was not sensitive to LGBT issues.Read more ›
(As published in Policy Options)
On January 10, 2017, Prime Minister Justin Trudeau appointed Ahmed Hussen as the minister of immigration, refugees and citizenship. Hussen replaced John McCallum, who had been the minister since November 4, 2015.
This is the third time that I am weighing the good, the bad and the ugly about a Canadian immigration minister. It is in some ways the most difficult time, given that McCallum’s tenure was so short. My first assessment of an immigration minister was about Jason Kenney, who remains Canada’s longest-serving immigration minister, having held the role for 1,719 days. His successor, Chris Alexander, whom I also wrote about, led Canada’s immigration department for 826 days. John McCallum was Canada’s immigration minister for only 433 days.
To some extent, the busy nature of McCallum’s tenure made up for its short duration. He was the first immigration minister in Trudeau’s Liberal majority government, which assumed power after an election campaign in which refugee and citizenship issues were prominent. Because McCallum had also been the Liberal immigration critic during Canada’s previous Conservative government, and had also served as a cabinet minister in previous Liberal governments, he was able to hit the ground running in implementing his mandate. Nonetheless, the comparative lack of material to write about was noticeable as I prepared this article.
John McCallum’s biggest accomplishment as Canada’s immigration minister, and the one that he will definitely be most remembered for, was presiding over the resettlement of over 39,000 Syrian refugees in Canada. Given the numerous significant challenges associated with such a grand endeavour, it is doubtful that someone without McCallum’s previous cabinet experience would have been able to achieve what he did in such a short period.Read more ›
One of the confusing aspects of a judicial review practice is determining how many applications are needed.
In Chambers v. Canada (Citizenship and Immigration), for example, the applicant filed one judicial review to seek review of i) an immigration Officer’s decision to prepare a report pursuant to subsection 44(1) of the Immigration and Refugee Protection Act (the “IRPA“) to the Minister of Public Safety and Emergency Preparedness’ delegate, (ii) the decision of the Minister’s delegate pursuant subsection 44(2) of the IRPA to refer the applicant, to an admissibility hearing before the Immigration Division of the Immigration and Refugee Board, and (iii) the decision of the Immigration and Refugee Board to order the applicant’s removal from Canada.
The Department of Justice argued that this was improper. However, Justice Bell disagreed, writing that:
The Applicant counters that this same issue was raised in Clare v Minister of Citizenship and Immigration, 2016 FC 545,  FCJ no 513 [Clare]. In Clare, O’Reilly, J. disagreed with the Minister’s contention. He concluded that, “[w]hile it was open to Mr. Clare to seek judicial review of those other decisions, it was not necessary to do so in order to challenge the [Immigration Division’s] decision on admissibility”. While O’Reilly, J. acknowledged that in some cases applicants had challenged multiple decisions through separate applications, he did not interpret them as “requiring applicants to do so in order to challenge the ID’s decision on admissibility”.
Mr. Chambers contends this issue has already been disposed of by the judge who granted leave. I agree. Leave was granted on the application as filed, without any limitation. The question is therefore moot. However, by way of obiter, I would state that I agree with the approach adopted by O’Reilly,Read more ›
Efrat Arbel is Assistant Professor at the Allard School of Law at the University of British Columbia. She is an executive member of the Canadian Association of Refugee Lawyers. A list of Dr. Arbel’s recent publications can be found here.
During this podcast we talk about three areas that Dr. Arbel has recently focused her research on. These include the distinction between physical borders and legal borders in the refugee context, how interdiction works, and the Safe Third Country Agreement.
The Safe Third Country Agreement between Canada and the United States requires that persons seeking refugee protection must make a claim in the first country they arrive in unless they qualify for an exception to the Agreement. In other words, an asylum seeker who wishes to seek refugee status in Canada will typically be denied the ability to do so if they attempt to enter Canada by land from the United States.
This episode was recorded before President Trump’s recent Executive Order imposed a moratorium on asylum claims in the United States. President Trump’s decision has only intensified and magnified many of the issues that Dr. Arbel discusses in this podcast.
1:43 – Dr. Arbel explains different concepts of what a country’s border is, and the distinction between the physical border and the legal border.
4:10 – We discuss the Canada Border Services Agency’s multiple border strategy, the role of Canada Border Services Agency liaison officers, and interdiction.
16:15 – We briefly summarize Canada’s new Electronic Travel Authorisation.
19:00 – Dr. Arbel provides an overview of global refugee flows.Read more ›