A person who is persecuted in their country of origin because of their sexual orientation or gender identity may apply for asylum in Canada. This recognition does not, however, guarantee that such a claim will be accepted: it is still necessary to understand the process, to know what the Immigration and Refugee Board (IRB) actually assesses, and to be aware of the recourse available in the event of a refusal.
On What Legal Basis Can an LGBTQ+ Person Claim Asylum in Canada?
Canadian law has recognized sexual orientation and gender identity as valid grounds for protection for more than three decades, setting Canada apart from many countries where such recognition remains absent or recent. Two sources of authority currently frame the analysis of these claims: foundational Supreme Court jurisprudence and specific IRB guidance.
The assessment of these claims is governed by the jurisprudence of the Supreme Court of Canada as well as by the IRB's Guideline concerning persons whose sexual orientation, sex characteristics, gender identity or gender expression (SOGIESC), whether real or perceived, do not conform to socially accepted norms in their society of origin.
Chairperson's Guideline 9 of the IRB
Since May 1, 2017, Chairperson's Guideline 9 has specifically governed proceedings involving sexual orientation, sex characteristics, gender identity and gender expression before the IRB's four divisions, including the Refugee Protection Division (RPD) and the Refugee Appeal Division (RAD). This Guideline requires decision-makers to avoid Western cultural stereotypes, to use terminology chosen by the individual concerned, and to show sensitivity to the particular difficulties raised by these cases.
How Does the IRB Assess the Credibility of a Claim Based on Sexual Orientation or Gender Identity?
The IRB does not require material proof of a person's sexual orientation or gender identity: what is examined is the consistency and credibility of the narrative. This distinction is essential. Guideline 9 explicitly reminds board members to avoid questions rooted in stereotypes, such as assuming that a person must necessarily have frequented LGBTQ+ community venues or events in order to be found credible.
Elements That Can Support Your Claim
While not always essential, certain types of evidence can help strengthen the credibility and consistency of an asylum claim, including:
- a clear and consistent timeline between the claimant's narrative and the supporting documents;
- letters of support written by relatives, community members, or community organizations;
- documents demonstrating, where applicable, that the claimant is or has been in a same-sex relationship;
- any other document that helps substantiate the alleged hardships, such as medical reports, police reports, court decisions, or attestations from organizations.
These documents may be submitted in support of the claim and filed with the Refugee Protection Division within the timelines prescribed by law.
The Basis of Claim (BOC) Form: What You Need to Know
The Basis of Claim (BOC) form is the central document in any asylum claim in Canada, including claims based on sexual orientation or gender identity. It is used to formally present the claim to the RPD and to set out, in detail, the reasons why protection is needed.
This form must be completed accurately. An incomplete or late form can result in a special hearing, or even in the claim being declared abandoned.
What Happens if the Claim Is Refused?
A refusal by the Refugee Protection Division does not necessarily end all avenues of recourse. Depending on the circumstances, a right of appeal or other legal remedies may be available. The recourse available, however, depends on each claimant's particular situation.
Appeal to the Refugee Appeal Division (RAD)
In certain situations, an unfavourable RPD decision can be appealed to the Refugee Appeal Division (RAD). This appeal allows the decision rendered by the RPD to be challenged in accordance with the provisions of the Act. However, not all claimants have access to the RAD, and eligibility for this recourse must be assessed on a case-by-case basis.
Humanitarian and Compassionate (H&C) Considerations
An application based on humanitarian and compassionate considerations is a separate process from an asylum claim. It does not allow an RPD decision to be challenged and is not available in all situations, particularly where restrictions set out in the Act apply. Where it is admissible, this type of application allows the Minister to consider certain humanitarian circumstances, such as establishment in Canada or other exceptional hardships. Its outcome remains entirely discretionary.
LGBTQ+ Resources in Montreal and Quebec During Your Process
Beyond legal support, several Montreal-based organizations offer complementary psychosocial support to LGBTQ+ individuals going through the asylum process, support that is often decisive in getting through a process that can extend over several months, or even several years. This type of community support, while not required for the file, can help maintain the consistency and stability of the account presented to the IRB.
Why Be Represented by an Immigration Lawyer?
While it is possible to submit an asylum claim without legal representation, having a lawyer's support can help structure the file and better address the requirements of the process.
Preparing the Basis of Claim (BOC) form is a particularly important step. For many LGBTQ+ individuals, the narrative of persecution or fear may be tied to difficult experiences, to years of concealing their sexual orientation or gender identity, or to events that can be complex to explain. A lawyer can help organize these elements to present a clear, consistent narrative that is relevant to the applicable legal criteria.
Support may also include preparation for the hearing before the Refugee Protection Division (RPD), including with respect to questions the tribunal may raise and elements that may require further explanation. Finally, in the event of an unfavourable decision, the analysis of available recourse depends on the particular circumstances of the case and the grounds for the decision rendered.
Consult a Lawyer About Your Asylum Claim
Every asylum claim based on sexual orientation or gender identity rests on unique personal circumstances, and the BOC form leaves no room for improvisation.
Since 1987, Blain Avocats has been assisting individuals with their immigration proceedings, including files requiring in-depth legal analysis. Located in Old Montreal, our firm practises notably in the areas of protection, asylum, and humanitarian and compassionate considerations. Our approach is based on a rigorous understanding of the applicable legal framework, together with careful attention to the individual realities and journeys of the people we represent.
To discuss your situation in complete confidentiality, contact Blain Avocats at (514) 288-3348 or at reception@blainavocats.ca.
Your Questions About Asylum Claims in Canada Based on Sexual Orientation or Gender Identity
Can I claim asylum in Canada if I am an LGBTQ+ person?
Yes, a person may submit an asylum claim in Canada if they demonstrate a well-founded fear of persecution based on their sexual orientation, gender identity, or gender expression. These grounds can be taken into account in the assessment of a claim for protection in Canada.
How do I demonstrate my sexual orientation or gender identity in an asylum claim?
The assessment relies primarily on the claimant's personal narrative and on the consistency of their statements. Evidence can also help support the file where available, including letters of support, documents demonstrating certain personal experiences, or any other relevant material.
What happens if my asylum claim is refused?
The consequences of a refusal and the recourse available depend on the particular circumstances of each case. In some cases, a decision by the Refugee Protection Division (RPD) can be appealed to the Refugee Appeal Division (RAD), while other remedies may be available depending on the claimant's situation.
Are there LGBTQ+ organizations in Montreal that can help with my asylum claim?
Yes. Certain community organizations offer psychosocial support, integration assistance, or other complementary services for LGBTQ+ immigrants and asylum claimants. These resources can complement, but do not replace, the legal analysis of an asylum claim.
Do I need to have frequented LGBTQ+ venues or events for my claim to be credible?
No. Guideline 9 of the IRB states that decision-makers must avoid approaches based on stereotypes about LGBTQ+ individuals, including the notion that a person must have adopted certain behaviours or frequented certain settings for their identity to be recognized.
What is the difference between an asylum claim and an application based on humanitarian and compassionate (H&C) considerations?
An asylum claim is based on a well-founded fear of persecution or on a risk recognized under Canadian refugee protection legislation. An application based on humanitarian and compassionate (H&C) considerations is a separate process, allowing a person to request an exemption from certain requirements of the Immigration and Refugee Protection Act due to particular circumstances. It is assessed according to different criteria and remains a discretionary measure.
