The alternate refuge concept: a source of systematic disadvantage to sexual minority refugee claimants.

Author:Young, Jessica

    The availability of alternate refuge is considered at various stages of the Canadian refugee determination process. In the context of refugee law, alternate refuge refers to the analysis undertaken by refugee-receiving states regarding the availability of protection for refugee claimants outside their own borders. Under Canadian refugee law, the two main applications of the alternate refuge concept are the safe third country rule and the internal flight alternative (IFA).

    This paper analyzes the procedural and substantive elements of the alternate refuge requirement and determines their impact upon individuals seeking protection on the basis of their sexual orientation or gender identity, namely gay men, lesbians, bisexuals and transgendered people (sexual minorities) (1) In doing so, the analysis examines how Canadian refugee law determines in individual cases if protection is available to refugees in a safe third country or within their home states by way of an internal flight alternative. The study reveals that alternate refuge measures systematically disadvantage sexual minority claimants. This negative impact could be alleviated, however, if decision-makers applied a more nuanced analysis to such claims. Decision-makers must consider the particular circumstances of sexual minority claimants in a consistent manner and refine their evaluations of country conditions, in order to reduce the disadvantage perpetuated by the current methods of analysis.

    The research paper is structured in four parts. Part I provides the reader with an overview of Canada's legal obligation toward refugees and discusses the fundamental principle of non-refoulement. Part I then outlines the parameters of Canada's refugee determination system and explains how claims asserted on the basis of sexual orientation and gender identity have been addressed within it. Part II of the research paper focuses upon the safe third country rule and analyzes its impact upon sexual minority claimants. This section examines the procedural and substantive elements of the concept, specifically how the opportunity to claim refuge in a third country can affect the ability of individuals to make successful refugee claims within Canada. The Safe Third Country Agreement (STCA) between Canada and the United States (U.S.), (2) relevant Federal Court decisions, and the issue of credibility are examined in this part.

    Part III of the research paper explores the nature of IFA findings and how they affect sexual minority claimants. This section focuses on the legal principles developed by the Federal Court and the Federal Court of Appeal and the principles applied by the Immigration and Refugee Board (the Board), whereby the availability of refuge within other regions of a claimant's home state affects the viability of his or her refugee claim. Part III focuses on refugee determinations involving Mexican claimants. Part IV draws out commonalities between the issues explored in the previous parts and argues that sexual minority claimants are systematically disadvantaged by the application of the alternate refuge requirement to their claims.

    1.1 The Canadian Refugee Determination Process

    Canada is a signatory to both the Convention relating to the Status of Refugees (the Refugee Convention) and the Protocol relating to the Status of Refugees. (3) These international instruments constitute the primary source of Canada's legal obligations toward refugees; their objectives have been incorporated domestically in the Immigration and Refugee Protection Act (IRPA) and its regulations. (4) Of particular interest to the current study is the obligation found in Article 33(1) of the Refugee Convention: (5)

    No Contracting States shall expel or return ("refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership in a particular social group or political opinion. The principle of non-refoulement is a cornerstone of international refugee law. (6) Pursuant to this principle, which is also enshrined in Article 3 of the Convention against Torture and other Cruel Inhuman or Degrading Treatment or Punishment (CAT), (7) receiving countries may not, whether directly or indirectly, return refugees to a country where they face a serious risk of persecution.

    The prohibition against refoulement is not absolute. Article 33(2) of the Refugee Convention provides that where there are reasonable grounds for believing that a refugee is a danger to the receiving country, he or she may not benefit from the principle of non-refoulement. (8)

    The alternate refuge concept is directly connected to the principle of nonrefoulement. Requiring a refugee claimant to seek protection outside of Canada, whether from a third country or a different region of his or her home state, involves determining whether he or she faces a risk of refoulement or persecution in the country to which he or she is being deported. This determination requires close analysis on the part of the decision-maker of both the claimant's personal circumstances and the country conditions he or she might face outside Canada.

    Refugee claims made from within Canada or at the Canada-U.S. land border are subject to findings regarding the availability of alternate refuge. (9) The inland refugee determination process begins when an individual advises an immigration official of his or her desire to claim refugee status. The officer then proceeds to interview the claimant and makes a threshold determination regarding the eligibility of his or her claim. Claims may be ineligible if the person: has refugee status in Canada or elsewhere, is a failed refugee claimant, traveled through a safe third country prior to entering Canada, or is a serious security/criminality risk. (10) The exclusion of refugee claimants on the basis of their passage through the U.S. is discussed in Part It.

    Eligible claims are then referred to the Refugee Protection Division of the Immigration and Refugee Board for determination. Once the claimants file their Personal Information Form (PIF), the Board may hear their claim via the fast-track or full hearing process. (11) Issues involving access to a safe third country or the availability of an IFA are addressed in the context of the hearing process. Failed refugee claimants may seek judicial review of the Board's decision with leave from the Federal Court. An application for judicial review is not equivalent to an appeal. The judicial review process involves an assessment of the Board's decision based upon administrative law principles. (12) If the application for judicial review is allowed, the claim is usually sent for re-determination by a different member of the Board. Further appeals may be sought from the Federal Court of Appeal and the Supreme Court of Canada, subject to leave requirements. (13)

    1.2 Refugee Claims Based on Sexual Orientation or Gender Identity

    In a journal article published in 1993, Suzanne Goldberg described the persecution experienced by sexual minorities throughout the world as follows:

    Their persecution takes the form of police harassment and assault, involuntary institutionalization and electroshock and drug "treatments", punishment under laws that impose extreme penalties including death for consensual lesbian or gay sexual relations, murder by paramilitary death squads, and government inaction in response to criminal assaults against lesbians and gay men. (14) Fifteen years later, sexual minorities continue to face serious discrimination and persecution at the hands of both state and private actors. Human rights organizations such as Amnesty International and Human Rights Watch have documented this abuse and published reports regarding the persecution faced by sexual minorities worldwide. (15)

    Sexual contact between consenting adults of the same sex is criminalized in eighty-six member-states of the United Nations and is punished by death in seven countries. (16) As noted in a 2007 report issued by the International Lesbian and Gay Association (ILGA), while many states do not actively enforce these laws, they "reinforce a culture ... where hatred and violence are somehow justified by the State and force people into invisibility or into denying who they truly are." (17) The criminalization of sexual activity between same-sex partners creates a pervasive homophobic environment within which the extortion, suppression, physical and sexual abuse, and harassment of sexual minorities is tolerated and perpetuated by a multitude of actors. Sexual activity between same-sex partners is also regulated indirectly through "morality" and "public order" provisions. (18) Therefore, sexual minorities in states that do not explicitly criminalize their sexual relations still encounter persecution in their daily lives.

    Article 1A of the Refugee Convention defines a refugee as any person who:

    ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. (19) [emphasis added] This definition is incorporated in Canadian legislation?[degrees] The grounds listed in the Convention's definition do not explicitly provide for refugee protection on the basis of sexual minority status; it is now well-established in Canadian jurisprudence, however, that refugee claims based upon sexual orientation or gender identity may constitute membership in a particular social group for the purposes of the refugee definition. (21)

    Legal scholars Catherine Dauvergne and Jenni...

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