Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics

Effective date: May 1, 2017
Revised: December 17, 2021

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.

Introduction
Terminology
Understanding the challenges faced by SOGIESC individuals in establishing their SOGIESC
Use of appropriate language
Protection of sensitive information
Avoiding stereotyping when making findings of fact
Establishing principles for assessing credibility and evidence pertaining to SOGIESC

7.2 Corroborative evidence
7.3 Questioning an individual
7.4 Inconsistencies
7.5 Implausibility findings
7.6 Vagueness
7.7 Material omissions

Persons appearing in proceedings before the Refugee Protection Division and the Refugee Appeal Division

8.2 Convention ground: membership in a particular social group
8.3 Perceived or imputed SOGIESC
8.4 Other Convention grounds
8.5 Establishing a well-founded fear of persecution

8.5.1 Concealment of SOGIESC as persecution
8.5.2 Intersectionality
8.5.3 Bisexual individuals
8.5.4 Trans and intersex individuals
8.5.5 Minors
8.5.6 Criminal laws and laws of general application
8.5.7 Absence of legislation
8.5.8 Forced medical treatment
8.5.9 Cumulative discrimination amounting to persecution
8.5.10 Country condition information
8.5.11 Delay
8.5.12 Sur place claims

8.6 State protection
8.7 Internal flight alternative

Persons appearing in proceedings before the Immigration Division
Persons appearing in proceedings before the Immigration Appeal Divisions
Enquiries

Footnotes

1. Introduction

1.1 The purpose of this Guideline is to promote greater understanding of cases involving sexual orientation, gender identity and expression and sex characteristics (SOGIESC) and the harm individuals may face due to their non-conformity with socially accepted SOGIESC norms in a particular cultural environment. This Guideline addresses the particular challenges SOGIESC individuals may face in presenting their cases before the Immigration and Refugee Board of Canada (IRB) and establishes guiding principles for members in adjudicating cases involving SOGIESC.

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 members 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 SOGIESC individuals in presenting evidence pertaining to SOGIESC;
Using appropriate terminology and language in both proceedings and reasons for decision when referring to SOGIESC individuals;
Protecting sensitive information in reasons for decision;
Avoiding stereotyping and incorrect assumptions when making findings of fact;
Assessing credibility; and
Increasing awareness of circumstances unique to SOGIESC individuals that may affect findings of fact and findings of mixed fact and law in each of the four divisions.

2. Terminology

2.1 This Guideline refers to individuals with, or who are perceived to have, sexual orientations, gender identities and expressions and sex characteristics (SOGIESC) that do not conform to socially accepted norms in a particular cultural environment. Such individuals include, but are not limited to, lesbians, gay men, and bisexual, trans, intersex, gender non-conforming, asexual, third gender, 2-Spirit, gender non-binary, and queer individuals. This Guideline also refers to cisgender individuals and/or heterosexual individuals who may not conform, who may not appear or be perceived to conform, to socially accepted SOGIESC norms in a particular cultural environment.

2.2 Gender: Gender refers to the characteristics, attitudes and behaviours that are socially or culturally associated with a person's sex as perceived or assigned at birth. 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 and/or country of origin.

2.3 Sex: Sex is a status assigned at birth based on certain biological markers of sex, including reproductive and sexual anatomy and sex chromosomes. Sex is typically designated as male or female. Sex may be referred to as 'sex assigned at birth'.

2.3.1 Sex Characteristics: Sex characteristics refer to each person's physical features relating to sex, including genitalia and other sexual and reproductive anatomy, chromosomes, hormones, and secondary physical features emerging from puberty. Most of the population develops either female or male sex characteristics. A number of other patterns regularly occur due to variations in chromosomes or hormone activity. All such differences in sexual development have been collectively termed 'intersex'.

2.4 The IRB recognizes that sex and gender, which includes gender identity and gender expression, are distinct concepts but may be interrelated.

Gender identity is defined as each person's internal experience and 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 sex assigned at birth. A person's understanding of their gender may change, and therefore the terms they might use to define their identity may also change and/or be fluid.

Gender expression is defined as 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 in a particular cultural context. This can include behaviour and outward appearance such as dress, hair, makeup, body language, mannerisms, gait, and voice. A person's chosen name and pronouns are also common ways of communicating gender. How a person expresses their gender may change and/or be fluid.

2.5 Sexual orientation: Describes the pattern of a person's physical, romantic and/or emotional attraction to others, and/or how they engage in, intimate relationships. Sexual orientation may include attraction to the same gender, a gender different than one's own, more than one gender, or none. A person's understanding of their sexual orientation may change and/or be fluid. An individual may identify as having one or multiple sexual orientations.

2.6 There is no standard terminology that adequately captures the diversity within and between the evolving concepts of sexuality, sexual orientation and gender identity and expression across cultures and societies. Terms which are most familiar in a Canadian context are based on a Western framework, and may not be familiar, or even easily comprehensible, to people from a different cultural framework.

2.7 While the following concepts are commonly used, the acronym and list below 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, may use multiple terms to describe themselves, or may have different understandings of these concepts involving intersectional factors such as culture, language, and other personal attributes and experiences. Individuals should be allowed to self identify and their self-identification respected during proceedings.

2.8 LGBTIQ2: 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, queer and 2-Spirit individuals:

Lesbian: An individual who identifies as a woman or any gender other than male and whose physical, sexual, romantic and/or emotional attraction is primarily to other individuals who identify as women may identify as a lesbian. Some women will also call themselves “gay” to describe their attraction to a person of the same sex or gender.
Gay man: An individual who identifies as a man and whose physical, romantic, sexual and/or emotional attraction is primarily to other individuals who identify as men. The term gay is not used exclusively by men.
Bisexual: An individual who is physically, romantically, sexually 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, sexual and/or emotional attraction to people of any gender or sex. Due to cultural norms and safety/security reasons, many lesbians and gay men will identify themselves as bisexual, or simply “men who have sex with men” or “women who have sex with women”. Sometimes individuals will be forced to marry or have sex with the opposite sex in order to protect themselves and survive; it should be noted that this does not make an individual bisexual or identify them as being bisexual in such cases.
Trans: An umbrella concept that refers to any individual whose gender identity or gender expression differs from their sex as perceived or 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 as perceived or 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 or is fluid; or people with any other gender identity that is not in line with socially accepted norms in a particular cultural environment. of expected behaviours based on gender. Gender identity is different from sexual orientation, and a trans individual may self-identify as heterosexual, gay, lesbian, bisexual, asexual, and/or queer.
Intersex: An umbrella concept that refers to individuals who are born with sex characteristics , such as reproductive or sexual anatomy or sex chromosomes, that do not align with binary categories of either male or female. These sex characteristics may become apparent at birth, while others become apparent during puberty or later in life , are detected through chromosomal testing, or may remain unrecognized. Intersex traits are a naturally occurring variation in humans. Intersex is distinct from gender identity, transgender identity, and sexual orientation. Intersex individuals risk experiencing harm in their countries of reference specifically because their physical sex characteristics do not comply with societal and/or cultural expectations for males and females in their country of origin.
Queer: An umbrella concept that refers to a person whose SOGIESC does not conform to socially accepted SOGIESC norms in a particular cultural environment, and may include individuals who are lesbian, gay, bisexual, trans or intersex. The term queer is also commonly used in French. The term may be used to denote involvement in political activism.
2-Spirit (Two-Spirit): a term with which some Indigenous people with same-sex desires and fluid gender identities and expressions will identify. This is primarily a North American term and one to be familiar with regarding potential 2-Spirit individuals from the United States. Indigenous SOGIESC individuals do not all identify as 2-Spirit and may use the other terms referenced in this Guideline.

2.9 Cisgender: An individual whose gender identity aligns with their sex as perceived or assigned at birth.

2.10 Gender non-binary: A person whose gender identity does not fall within the binary of male and female. Non-binary people may feel neither male nor female, somewhat male and female, or between male and female. The concept of gender identity is distinct from that of sexual orientation, and a non-binary person may be heterosexual, gay, lesbian, bisexual or asexual. Similar terms include genderqueer, agender, and bigender.

2.11 “Homosexual”: Members should use the term used by the claimant to describe their sexual orientation. The terms “homosexual” and “homosexuality” should be avoided. The term “homosexual” is problematic due to the way in which it was used to pathologize and criminalize SOGIESC individuals.^{Footnote 1} Generally, members should use gay or lesbian to describe people attracted to members of the same sex. Avoid using "homosexual" except in direct quotes to evidence, for example, penal codes prohibiting same-sex relationships and expressions. There may also be cases where claimants and appellants themselves, directly or through an interpreter, use the terms for self-identification, whether in English or French. Members should inquire whether the term is being chosen by the claimant or appellant and should use it in the hearing room and decision only if a claimant or appellant prefers it. Members should correct interpreters who use incorrect terms during the course of the hearing.

2.12 Asexuality: A sexual orientation or identity describing people who experience little or no sexual attraction and/or sexual desire for sexual contact with others and/or interest in participating in sexual relationships or sex, etc. Asexuality is diverse and no single definition or criterion will work for everyone.

2.13 Third Gender: A person who does not identify with the traditional genders of “man” or “woman,” but identifies with another gender. This is a gender category available in societies that recognize three or more genders. Examples include Indigenous two-spirit people, hijira in India, kathoeys in Thailand, and travestis in Brazil. Other related terms include Māhū, fa'afafine and Waria.

3. Understanding the challenges faced by SOGIESC individuals in establishing their SOGIESC

3.1 Depending on factors such as race, ethnicity, religion, faith or belief system, age, disability, health status, social class and education, SOGIESC individuals recognize and act on their SOGIESC differently.^{Footnote 2} An individual's self-awareness and self-acceptance of their SOGIESC 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 a SOGIESC individual.

3.2 An individual's testimony may be the only evidence of their SOGIESC where, in a given case, corroborative or additional evidence is not reasonably available.

3.3 Many SOGIESC individuals conceal their SOGIESC 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 SOGIESC with a member based on a fear or general mistrust of authority figures, particularly where intolerance or punishment of SOGIESC individuals are sanctioned by state officials in an individual's country of reference.

3.4 SOGIESC individuals who have been in immigration detention while in Canada may face additional challenges due to the particular difficulties SOGIESC individuals may face in detention.

3.5 The intersection of SOGIESC 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 SOGIESC individuals 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.^{Footnote 3} SOGIESC individuals 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 SOGIESC.^{Footnote 4} 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.^{Footnote 5}

3.7 Some SOGIESC individuals may be particularly vulnerable due to mental health issues or traumatic circumstances experienced because of their SOGIESC. 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.^{Footnote 6} Accommodations under Guideline 8 should be considered by the member, whether requested by a party or on the member's own initiative, wherever it is appropriate to do so.

3.8 Country condition information on the treatment SOGIESC individuals in some countries can be limited or even non-existent.^{Footnote 7} 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, SOGIESC individuals may be part of joint claims or appeals that inhibit their ability to disclose their sexual orientation, gender identity or expression or sex characteristics. When a member becomes aware that the individual wishes to assert an independent claim or appeal based on sexual orientation, gender identity or expression or sex characteristics, 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 who identifies as or is perceived to be a SOGIESC individual.

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. Members 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.^{Footnote 8}

4.2 Terminology used to refer to SOGIESC individuals 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. Members 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,^{Footnote 9} and sensitive information concerning an individual's SOGIESC 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 member, to limit public dissemination of this information. Members 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 member may make a confidentiality order to further protect the information in question.^{Footnote 10}

5.3 Additionally, in drafting reasons for decision, members should, wherever possible, avoid the use of personal identifiers or sensitive information that is not necessary to explain the reasoning in the decision.^{Footnote 11}

6. Avoiding stereotyping when making findings of fact

6.1 Members should not rely on stereotypes or incorrect assumptions in adjudicating cases involving SOGIESC individuals as they derogate from the essential human dignity^{Footnote 12} of an individual. Examples of stereotypes or assumptions that should not be relied on in adjudicating cases involving SOGIESC individuals include, but are not limited to, the following:

SOGIESC individuals have feminized or masculinized appearances or mannerisms;^{Footnote 13}
An individual's SOGIESC can be determined by an individual's occupation;^{Footnote 14}
SOGIESC individuals would not have had heterosexual sexual experiences or relations;^{Footnote 15}
SOGIESC individuals would not voluntarily enter a heterosexual marriage or have children;^{Footnote 16}
SOGIESC individuals are promiscuous or sexually active and do not engage in exclusive relationships;^{Footnote 17}
SOGIESC individuals do not participate in cultural or religious customs or traditions;^{Footnote 18}
An individual knew they were a SOGIESC individual at a young age, or became sexually active at a young age;^{Footnote 19}
The “coming out” narrative common in North America reflects a universal or standard developmental process;
Trans individuals will seek to have surgical, pharmaceutical, medical or physiological treatment if they have access to that treatment and if treatment is sought, it will be without delay;
Trans individuals will seek to express their gender identity in accordance with their self-identified gender;
SOGIESC individuals are able to explain their attraction to other individuals;
Individuals who have attractions to persons of the same sex would readily identify as SOGIESC individuals or necessarily act upon their attractions by engaging in same-sex activity;
SOGIESC individuals would actively participate in LGBTIQ2 culture in Canada or be involved in, or aware of, community organizations and groups;^{Footnote 20}
SOGIESC individuals are necessarily comfortable disclosing these aspects of their identity to others in their lives, such as their friends, community members, health care and service providers, or legal counsel.^{Footnote 21}

6.2 Members should consider the personal, cultural, social, economic, and legal realities of SOGIESC individuals, as well as their mental well-being, language barriers, and the impact of trauma, so that findings of fact are based on the lived reality of these individuals. A member should avoid basing a finding of fact on an incorrect assumption of what is reasonable behaviour for a SOGIESC individual and demonstrate sensitivity to the complex challenges faced by SOGIESC individuals. Examples of findings of facts based on incorrect assumptions on what is reasonable behaviour for a SOGIESC individual, include, but are not limited to, the following:

SOGIESC individuals who subjectively fear persecution would choose to disclose their sexual orientation in an ex-patriate community rather than face potential removal.^{Footnote 22}
SOGIESC individuals cannot have a genuine conjugal relationship with a partner whose sexual orientation is different from their own.^{Footnote 23}
SOGIESC individuals would discuss previous sexual relationships with current partners.^{Footnote 24}
SOGIESC individuals would not be afraid to disclose their sexual orientation when in a committed heterosexual relationship.^{Footnote 25}

7. Establishing principles for assessing credibility and evidence pertaining to SOGIESC

7.1 While an individual's experiences and behaviours related to their SOGIESC may be expressed in both the private and public spheres, an individual's testimony may, in some cases, be the only evidence of their SOGIESC.^{Footnote 26}

7.2 Corroborative evidence

7.2.1 Corroborating evidence from family or friends may not be available in cases involving SOGIESC.^{Footnote 27} An example of when this type of corroboration may not be available is when an individual has concealed their SOGIESC because of perceived stigma or risk of harm.^{Footnote 28}

7.2.2 Similarly, medical evidence that serves to corroborate an individual's account may not be available in cases involving SOGIESC. 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 SOGIESC. Where this evidence is available, it can be presented by the individual for the member to consider.

7.2.3 A SOGIESC individual may not have participated in LGBTIQ2 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 member to consider.^{Footnote 29}

7.2.4 It is not expected that an individual establish their SOGIESC through the use of sexually explicit photographs, videos or other visual material.^{Footnote 30}

7.3 Questioning an individual

7.3.1 Questioning an individual about their SOGIESC 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 Inconsistencies

7.4.1 Cases involving SOGIESC individuals are no different from other cases before the IRB in that members may draw a negative inference from material inconsistencies, contradictions or omissions that have no reasonable explanation.^{Footnote 31} When assessing the reasonableness of an explanation given for an identified credibility problem, members should consider the personal, cultural, social, economic, and legal realities of SOGIESC individuals as well as their mental well-being, language barriers, and the impact of trauma. For instance, it may be difficult for an individual who has concealed their SOGIESC 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.^{Footnote 32} As another example, SOGIESC identities may be fluid and an individual may self-identify as a gay man at the port of entry and as a trans individual later in a Basis of Claim Form (BOC)^{Footnote 33}. Inconsistencies in terminology may also be reasonably explained. For example, letters of support reflect the perspectives of individuals who write them. The letter writer may not use the same terms or describe the person's identity in the same way as the person themselves.

7.5 Implausibility findings

7.5.1 Implausibility findings must not be based on stereotypes. For example, it may be plausible that a SOGIESC individual has engaged in heterosexual encounters.^{Footnote 34} It may also be plausible that a SOGIESC individual has engaged in activity that might put them at risk in their country of reference.^{Footnote 35}

7.6 Vagueness

7.6.1 Testimony about same-sex relationships that is vague and lacking in detail may support a negative credibility inference;^{Footnote 36} however, members 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 a SOGIESC individual, a member must, as in other cases, provide specific reasons to support a finding that the testimony is not comprehensive or fulsome.^{Footnote 37}

7.7 Material omissions

7.7.1 Omissions from testimony of significant events or details relating to the life of a SOGIESC individual may, as in other cases, support a negative credibility assessment if there is no reasonable explanation for the omission.^{Footnote 38} Members 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 members face when determining claims based on SOGIESC:

To what extent can a SOGIESC individual or someone who is perceived to be a SOGISESC individual 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 SOGISESC individual, or someone who is perceived to be a SOGIESC individual, may be subjected to 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 a SOGISESC individual or someone who is perceived to be a SOGISESC individual 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.^{Footnote 39} This extends to gender identity and expression and sex characteristics.

8.3 Perceived or imputed SOGIESC

8.3.1 Individuals may be subjected to persecution by reason of their perceived or imputed SOGIESC.^{Footnote 40} Examples may include:

Individuals who do not fit stereotypical appearances or conform to socially accepted SOGIESC norms in a particular cultural environment may be perceived as SOGIESC individuals when they are not;
Those advocating for, or reporting on, SOGIESC rights may be perceived to be SOGIESC individuals; and
Individuals who provide support for SOGIESC individuals—for example, partners who remain with SOGIESC individuals through, for instance, gender reassignment surgeries—may be perceived to be SOGIESC individuals.

8.3.2 The fear of family members of an individual who is, or is perceived to be, a SOGIESC individual may also have a nexus to the Convention ground of membership in the particular social group of the family.^{Footnote 41}

8.4 Other Convention grounds

8.4.1 The fears of SOGIESC individuals 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 a SOGIESC individual, political activism by an individual to promote SOGIESC rights may put that individual at increased risk of persecution;^{Footnote 42}
Religion: An individual may face persecution based on religion if their SOGIESC is viewed as diverging from the teachings of that particular religion;^{Footnote 43} or
Race or Ethnicity: SOGIESC individuals may face persecution based on race or ethnicity if they belong to a particular ethnic group that is targeted in their country of reference.^{Footnote 44}

8.4.2 Where a SOGIESC individual has a claim that is not based on their SOGIESC, 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 SOGIESC as persecution

8.5.1.1 It is well established in law that being compelled to conceal one's SOGIESC constitutes a serious interference with fundamental human rights that may therefore amount to persecution, and a claimant cannot be expected to conceal their SOGIESC as a way to avoid persecution in their country of reference.^{Footnote 45}

8.5.2 Intersectionality

8.5.2.1 Some SOGIESC individuals 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.

8.5.2.2 SOGIESC individuals 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.

8.5.2.3 Members need to be mindful of the overlap or complementing relationship that gender, sexual orientation, gender identity and expression, and sex characteristics share, and consequently may need to consider the application of both this Guideline and the Chairperson's Guideline 4 as appropriate.^{Footnote 46} 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.^{Footnote 47}

8.5.3 Bisexual individuals

8.5.3.1 Bisexual individuals may face risks of mistreatment similar to those faced by gay men or lesbians.^{Footnote 48} However, bisexual individuals may also face specific types of discrimination or mistreatment.

8.5.4 Trans and intersex individuals

8.5.4.1 Trans and intersex individuals may be particularly vulnerable to systemic discrimination and acts of violence due to their non-conformity with socially accepted norms in a particular cultural environment 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.

8.5.4.2 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.

8.5.4.3 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.

8.5.4.4 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.

8.5.5 Minors

8.5.5.1 A minor who identifies as or is perceived to be a SOGIESC individual 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 who identifies as, or is perceived to be, a SOGIESC individual 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 who identifies as, or is perceived to be, a SOGIESC individual 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.

8.5.5.2 Members may need to consider the application of the Chairperson's Guideline 3: Child Refugee Claimants—Procedural and Evidentiary Issues^{Footnote 49} in a case involving a minor who identifies as, or is perceived to be, a SOGIESC individual.

8.5.6 Criminal laws and laws of general application

8.5.6.1 The existence of laws that criminalize or suppress non-conforming sexual orientations, sexual behaviours, gender identities or expressions, or sex characteristics may be indicative that a claimant has a well-founded fear of persecution if the laws are enforced.^{Footnote 50} 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 SOGIESC individuals as they may reinforce negative societal attitudes against this population.^{Footnote 51} The existence of such laws, even though unenforced, may also be used by state actors and private individuals to threaten SOGIESC individuals.^{Footnote 52}

8.5.6.2 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 SOGIESC individuals.

8.5.6.3 The existence of laws of general application that are used to target SOGIESC individuals is 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 SOGIESC individuals in a discriminatory manner may amount to persecution in the particular circumstances of a case.^{Footnote 53}

8.5.6.4 SOGIESC individuals 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

8.5.7.1 The absence of laws that criminalize or discriminate against SOGIESC individuals in a country does not signify a lack of discrimination in that country, nor does it indicate that state protection is available.

8.5.7.2 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.^{Footnote 54}

8.5.8 Forced medical treatment

8.5.8.1 SOGIESC individuals 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.^{Footnote 55} Such treatment violates an individual's security of the person and is persecutory.

8.5.9 Cumulative discrimination amounting to persecution

8.5.9.1 SOGIESC individuals may also face instances of harassment or discrimination that cumulatively amount to a well-founded fear of persecution.^{Footnote 56} The following non-exhaustive scenarios could, on a cumulative basis, constitute persecution in the particular circumstances of a case:

Restrictions on access to employment;^{Footnote 57}
Restrictions on access to education;
Restrictions on access to health care;^{Footnote 58}
Restrictions on access to housing;^{Footnote 59}
Restrictions on access to social services;
Reliance on sex work where the individual has been denied reasonable access to other means of financial support;^{Footnote 60}
Being the target of repeated acts of intimidation;
Systematic harassment from police; or
Military hazing.^{Footnote 61}

8.5.10 Country condition information

8.5.10.1 Reliable, relevant and up-to-date country condition information on SOGIESC individuals in some countries can be scarce, incomplete or general in nature.^{Footnote 62} A lack of available information may be more pronounced for certain individuals. For example, country condition information about the situation of SOGIESC individuals in a given country may focus on gay men and may not include specific information about, for instance, lesbians, trans or intersex individuals.^{Footnote 63} A lack of information may be further exacerbated for certain SOGIESC individuals who are, for example, racial minorities or persons with disabilities.

8.5.10.2 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 SOGIESC individuals in a country may be due to the stigmatization or illegality of these individuals in that country.^{Footnote 64} In such cases, members may wish to consider the circumstances in the country of reference that may have informed the absence of documentation of the treatment of SOGIESC individuals, 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.

8.5.11 Delay

8.5.11.1 A SOGIESC individual may reasonably delay making a claim for refugee protection based on their SOGIESC 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 SOGIESC to a spouse or other family member, or in their realizing or accepting their SOGIESC.

8.5.12 Sur place claims

8.5.12.1 A SOGIESC individual 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 SOGIESC, such as when an individual realizes that they are a SOGIESC individual 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 SOGIESC 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 SOGIESC publicly in their country of refuge or becoming politically involved in SOGIESC issues in that country. In such cases, claimants may not have personally experienced persecution based on their SOGIESC in their country of reference.^{Footnote 65}

8.6 State protection

8.6.1 As in all cases, in considering whether state protection is available to a SOGIESC individual, members 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.^{Footnote 66}

8.6.2 When examining the personal circumstances of a claimant, it is important to consider that SOGIESC individuals 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 SOGIESC individuals do not disclose their SOGIESC or report incidents of violence out of fear of further reprisal from the state or non-state actors, it may be unreasonable for SOGIESC individuals to approach the state for protection.^{Footnote 67}

8.6.4 The existence of laws criminalizing non-conforming sexual orientations, sexual behaviours, gender identities or expressions, or sex characteristics and the enforcement of these laws by the state may be evidence that state protection is inadequate.^{Footnote 68} Even if irregularly enforced, the criminalization of the existence or behaviours of SOGIESC individuals 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 action^{Footnote 69} designed to improve the situation of SOGIESC individuals in a country, need to be carefully assessed to determine whether state protection is adequate at the operational level. In these cases, members 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 SOGIESC individuals.^{Footnote 70}

8.6.6 Evidence about the availability of state protection for SOGIESC individuals in some countries can be scarce or non-existent. This scarcity may be due to the stigmatization of SOGIESC individuals 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, members 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 SOGIESC individuals, 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 a SOGIESC individual must conceal their SOGIESC in order to live in that location.^{Footnote 71}

8.7.2 The following non-exhaustive factors may impact whether a proposed IFA is reasonable for a SOGIESC individual in the particular circumstances of a case:

The ability to secure employment;^{Footnote 72}
The ability to secure housing;
Access to medical treatment, including access to treatment for individuals with HIV,^{Footnote 73} 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.^{Footnote 74}

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 SOGIESC individuals.

9.2 The LGBTIQ2 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 a SOGIESC individual following a detention review, the ID may consider any particular challenges raised related to the individual's SOGIESC 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 SOGIESC individuals and are from a country that criminalizes, stigmatizes or does not recognize same-sex relationships.^{Footnote 75} 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.^{Footnote 76}

10.2 Relationships involving SOGIESC individuals may not evolve along the same trajectory as non-SOGIESC 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, members are to avoid relying on stereotypes regarding SOGIESC individuals or drawing comparisons with non-SOGIESC individuals.

10.3 SOGIESC individuals 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, a SOGIESC individual who is sponsoring a parent may be fearful of visiting that parent if the country is intolerant of SOGIESC individuals. 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, a SOGIESC individual 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, members should take into account the particular hardship that a SOGIESC individual might face if they are removed from Canada.^{Footnote 77} 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 SOGIESC. These considerations would apply as well in a Minister's appeal from an ID decision not to issue a removal order against a SOGIESC individual.

10.5 In exercising their ability to grant discretionary relief on humanitarian and compassionate grounds in a residency obligation appeal, members should take into account the particular hardship that a SOGIESC individual might face in their country of reference. 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 a SOGIESC individual, members 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.^{Footnote 78}

10.7 In all appeals, the best interests of a child who identifies or is perceived to be a SOGIESC individual, or who is the child of an appellant or applicant who is a SOGIESC individual, is a factor to consider.

11. Enquiries

For more information, please contact:

IRB.Policy-Politiques.CISR@irb-cisr.gc.ca

Senior Director,
Policy, Engagement and Parliamentary Affairs
Strategic Directions and Corporate Affairs Branch
Minto Place - Canada Building
344 Slater Street, 14 Floor
Ottawa, Ontario K1A 0K1

Approval

Richard Wex
Chairperson
Date: December 17, 2021

Footnotes

Footnote 1

GLAAD. Media Reference Guide – Terms to Avoid. N.d.

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Footnote 2

LaViolette, Nicole. Sexual Orientation, Gender Identity, and the Refugee Determination Process in Canada. Ottawa: University of Ottawa, 2013, p. 24.

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Footnote 3

Hall, Sarah, and Rohan Sajnani. "Mental Health Challenges for LGBT Asylum Seekers in Canada." Envisioning Global LGBT Human Rights. January 2015, pp. 2–3.

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Footnote 4

Reading, Romy and Lisa R. Rubin. "Advocacy and Empowerment: Group Therapy of LGBT Asylum Seekers." Traumatology 17.2 (2011): pp. 87, 90. See also Hall and Sajnani, Ibid. See also UK Home Office. Asylum Policy instruction: Sexual orientation in asylum claims. 6th. version. UK: UK Home Office, 2016, p. 14.

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Footnote 5

Hersh, Nicholas. "Challenges to Assessing Same-Sex Relationships under Refugee Law in Canada." McGill Law Journal 60.3 (2015): pp. 545–548.

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Footnote 6

Immigration and Refugee Board of Canada (IRB). Chairperson's Guideline 8: Procedures with Respect to Vulnerable Persons Appearing Before the IRB. 2012.

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Footnote 7

In A.B. v. Canada, 2009 FC 640 (CanLII) at paras. 19–23, the Court noted that the reason there were no reports on the enforcement of laws criminalizing same-sex acts could be because no one is open about same-sex encounters.

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Footnote 8

In Martinez v. Canada, 2011 FC 13 (CanLII) at para. 68, the Court noted that it was unfortunate the Refugee Protection Division (RPD) referred to the claimant by terminology that did not reflect his own self-concept, but the slip did not reflect a misunderstanding of who he is or the risks he faced.

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Footnote 9

Subsection 166(c.1) of the Immigration and Refugee Protection Act (IRPA) provides that Immigration Division proceedings involving refugee protection claimants are conducted in private.

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Footnote 10

Subsections 166(c) and (c.1) of the IRPA.

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Footnote 11

Code of Conduct for Members of the Immigration and Refugee Board of Canada, at para. 36: "Members have a responsibility to consider the privacy interests of individuals in the conduct of proceedings and the writing of decisions, ensuring that decisions contain only the personal information that is necessary to explain the reasoning of the decision."

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Footnote 12

In Law v. Canada (Minister of Employment and Immigration), [1999] S.C.R. 497, Iacobucci J., writing for a unanimous Court, described the purpose of s. 15(1) at para. 51 as follows: "[t]o prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration."

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Footnote 13

In Herrera v. Canada (Minister of Citizenship and Immigration), 2005 FC 1233 (CanLII), the Federal Court confirmed it is an erroneous stereotype to expect a gay man to exhibit effeminate mannerisms or characteristics. Similarly, in Lekaj v. Canada (Minister of Citizenship and Immigration),2006 FC 909 (CanLII) at para. 17, the Federal Court confirmed that the application of stereotypical considerations regarding a claimant's appearance and mannerisms is not a proper basis upon which to impugn their credibility.

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Footnote 14

Slim v. Canada (Minister of Citizenship and Immigration), 2004 FC 706 (CanLII) at para. 5.

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Footnote 15

In X (Re), 2013 CanLII 91131 (RAD) at para. 37, the Refugee Appeal Division (RAD) held that the RPD erred by not considering that an individual was bisexual and not simply gay or heterosexual, and that it was reasonable that the individual may have had both “homosexual” and heterosexual relationships. See also IAD TB3-03790 at paras. 15-18, where the IAD similarly noted that it was likely that the individual was bisexual and therefore not unreasonable for him to have engaged in a heterosexual relationship. See also UK Home Office 2016, supra note 5 at p. 25.

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Footnote 16

SOGIESC Individuals may do so due to societal pressure, family pressure, stigma, prejudice, or to avoid suspicion of having a non-heterosexual orientation. In Eringo v. Canada (Minister of Citizenship and Immigration), 2006 FC 1488 (CanLII) at paras. 11–12, the Court confirmed that it is an unacceptable stereotype to assume that an SOGIESC individual could not enter into a heterosexual marriage without being forced to do so. In X (Re), 2016 CanLII 39702 (RAD), the RAD held that it was unreasonable for the RPD to have drawn a negative inference from the fact that a SOGIESC individual had a heterosexual relationship and a child from that relationship.

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Footnote 17

In Latsabidze v. Canada (Citizenship and Immigration), 2012 FC 1429 (CanLII) at paras. 2–5, the Court ruled that it is an unacceptable stereotype to presume that gay men are promiscuous and are incapable of being in monogamous, stable relationships. See also Kornienko v. Canada (Citizenship and Immigration), 2012 FC 1419 (CanLII) at para. 3

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Footnote 18

In Trembliuk v. Canada (Minister of Citizenship and Immigration), 2003 FC 1264 (CanLII), the Federal Court ruled that it was a stereotypical view of the lifestyle and preoccupations of “homosexual persons” to assume that a gay claimant who had been raised Catholic would dissociate himself from the Roman Catholic Church and from Roman Catholic schools when he arrived in Canada. See also IAD TB2-14128 at paras. 51–52, where, in assessing the genuineness of a conjugal relationship, the Immigration Appeal Division (IAD) allowed for the fact that the sponsor was not yet comfortable disclosing to his parents that his partner was trans. See also UK Home Office 2016, supra note 5 at p. 35. See also UK Lesbian and Gay Immigration Group. Missing the Mark: Decision making on Lesbian, Gay (Bisexual, Trans and Intersex) Asylum Claims. UK: UK Lesbian and Gay Immigration Group, September 2013, p. 16.

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Footnote 19

In Dosmakova v. Canada (Minister of Citizenship and Immigration), 2007 FC 1357 (CanLII) at paras. 11–12, the Court held that it was unreasonable for the RPD to rely on stereotypical attitudes about SOGIESC individuals in making credibility findings, including that an individual would realize their sexual orientation at a young age (in their teens or early twenties). In the circumstances of the case, the claimant realized that she was a lesbian only when she began a relationship with a woman later in life, after she had been married. Similarly, in Eringo v. Canada (Minister of Citizenship and Immigration), 2006 FC 1488 (CanLII) at para. 11, the Court confirmed that it is an unacceptable stereotype to assume that a SOGIESC individual would realize their sexual orientation during their adolescence. In the circumstances of the case, the claimant realized he was gay only when he was 23.

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Footnote 20

In Essa v. Canada (Citizenship and Immigration), 2011 FC 1493 (CanLII), the Court held that it was unreasonable for the RPD to draw a negative inference from the claimant's behaviour of not frequenting gay establishments. In X (Re),2014 CanLII 94267 (RAD) at para. 28, the RAD confirmed that the assumption that a gay man would openly participate in LGBT groups or organizations, or frequent gay clubs, was an unacceptable stereotype. See also X (Re), 2014 CanLII 95940 (RAD) at para. 35, and X (Re), 2013 CanLII 91548 (RAD) at paras. 37–39.

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Footnote 21

Zeah v. Canada (Citizenship and Immigration) 2020 FC 711 (CanLII) and Contreras Hernandez v. Canada (Citizenship and Immigration) 2007 FC 1297.

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Footnote 22

Ibid. Zeah v. Canada.

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Footnote 23

A.P. v. Canada (Citizenship and Immigration) 2020 FC 906 (CanLII).

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Footnote 24

Ibid.

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Footnote 25

Ibid.

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Footnote 26

In Ogunrinde v. Canada, 2012 FC 760 (CanLII) at para. 42, the Court noted that the acts and behaviours which establish a claimant's “homosexuality” are inherently private, and that when evaluating claims based on sexual orientation, one must be mindful of the inherent difficulties in proving that a claimant has engaged in any particular sexual activity.

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Footnote 27

In Murugesu v. M.C.I., 2016 FC 819 (CanLII), the Court upheld a RAD decision in which a negative inference was drawn from the failure of the appellant to adduce evidence from two former partners, one of whom was in Canada, at the appeal. No reasonable explanation was offered. Similarly, in Irivbogbe v. Canada (Citizenship and Immigration), 2016 FC 710 (CanLII), the failure to bring a partner as a corroborative witness supported a negative inference. Also in Aluyi v. Canada (Minister of Citizenship and Immigration), 2006 FC 1028 (CanLII), the Court noted that when a claimant's testimony contains many lies, corroboration may be needed to establish sexual orientation. However, in Nezhalskyi v. Canada (Citizenship and Immigration), 2015 FC 299 (CanLII), the claimant's testimony was consistent and the Court held that a negative inference should not have been drawn from the fact that a boyfriend who resided in the city where the hearing took place did not testify.

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Footnote 28

In Buwu v. Canada (Citizenship and Immigration), 2013 FC 850 (CanLII) at para. 47, the claimant explained she did not file letters or affidavits from any former partners as she had only one real relationship in high school and it was a secret. The Court held that it was wrong for the RPD to make a negative credibility finding based on the lack of corroborative evidence.

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Footnote 29

However, in Irivbogbe, supra note 28, the claimant did not join any LGBTIQ+ groups for two years after his arrival in Canada and joined only one month after he made his claim for refugee protection. A negative inference in the particular circumstances of this case was held to be reasonable.

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Footnote 30

UK Home Office 2016, supra note 5 at p. 28. See also UNHCR. Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees. 2012, para. 64.

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Footnote 31

In Smith v. Canada (Citizenship and Immigration), 420 FTR 256 (CanLII) at paras. 24–32, significant inconsistencies emerged between the Personal Information Form, a first hearing and the de novo hearing. The Court held that it was appropriate in the particular circumstances of this case to draw a negative inference from these inconsistencies.

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Footnote 32

In Gabila v. Canada (Citizenship and Immigration), 2016 FC 574 (CanLII) at paras. 31–32, the Court noted that it was understandable that the applicant had substituted a lie for the truth at the port of entry as he had hidden his sexual orientation in his home country and was fearful of disclosing his sexual orientation to authorities upon his arrival in Canada.

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Footnote 33

Ojie v. Canada (Citizenship and Immigration) 2018 FC 342 and Contreras Hernandez v. Canada (Citizenship and Immigration) 2007 FC 1297.

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Footnote 34

In Rudoy v. Canada (Citizenship and Immigration), 2015 FC 1051 (CanLII), the applicant testified that he had a heterosexual encounter as a teenager in an effort to change his sexual orientation but did not "totally realize" he was gay until four years later.

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Footnote 35

In Strugar v. Canada (Citizenship and Immigration), 2013 FC 880 (CanLII) at para. 5, the Court found that it is not inconsistent that the claimant would risk kissing her lover in a parked car near a bus stop when she stated she was careful to hide her sexual orientation. It is also not implausible that someone would keep a same-sex relationship private but that nonetheless, fellow students would find out about the relationship; Boteanu v. Canada (Minister of Citizenship and Immigration), 2003 FCT 299 (CanLII) at paras. 6–8. See also UK Lesbian and Gay Immigration Group, supra note 19 at p. 21. See also Jansen, Sabine, and Thomas Spijkerboer. Fleeing Homophobia: Asylum Claims Related to Sexual Orientation and Gender Identity in Europe. Vrije Universiteit Amsterdam. September 2011, p. 60.

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Footnote 36

Hesitancy, evasiveness and lack of knowledge about basic details about a long-term sexual partner may undermine credibility (X (Re), 2014 CanLII 96279 (RAD)).

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Footnote 37

In Kamau v. Canada (Citizenship and Immigration), 2016 FC 413 (CanLII) at paras. 59–60, the RPD did not find the applicant convincing about his same-sex relationship because he did not provide basic details about the relationship in his BOC Form, and the details he provided at the hearing were not convincing because they were not provided in a comprehensive and fulsome manner. The RPD also found that he was hesitant and evasive in the way that he described his relationships with women. However, when the Federal Court examined the RPD transcripts, it found that a comparison of the applicant's testimony about his same-sex relationship and the female relationship showed no apparent difference or discernable vagueness.

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Footnote 38

In X (Re), 2015 CanLII 52150 (RAD), the RAD found that a significant incident at a hotel relating to the discovery of the person's sexual orientation was omitted from the appellant's BOC Form without a reasonable explanation.

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Footnote 39

Canada (Attorney General) v. Ward, [1993] S.C.R. 689.

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Footnote 40

Amaya Jerez v. Canada (Citizenship and Immigration), 2012 FC 209 (CanLII) at para. 24. See also Dykon v. Canada, [1994] 87 F.T.R. 98, 25 Imm. L.R. (2d) 193.

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Footnote 41

Corneille v. Canada (Minister of Citizenship and Immigration), 2014 FC 901 (CanLII).

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Footnote 42

In Hernandez v. Canada (Minister of Citizenship and Immigration), 2003 FCT 182 (CanLII), the Federal Court held that a claimant, who was a trans male from Mexico, would be at a greater risk of persecution based on his political activism and his being a SOGIESC individual.

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Footnote 43

UNHCR, supra note 31 at para. 42.

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Footnote 44

UK Home Office 2016, supra note 5 at p. 10.

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Footnote 45

Sadeghi-Pari v. Canada (Minister of Citizenship and Immigration), 2004 FC 282 (CanLII) at para. 29. See V.S. v. Canada (Citizenship and Immigration), 2015 FC 1150 (CanLII) at para. 12, and Wafa v. Canada (Citizenship and Immigration), 2015 FC 1153 (CanLII) at para. 22. See also UNHCR, supra note 31 at para. 31. See also International Commission of Jurists (ICJ). Refugee Status Claims Based on Sexual Orientation and Gender Identity: A Practitioners' Guide. Geneva: ICJ, 2016, pp. 84–101, citing EU and UK case law, including X, Y and Z v. Minister voor Immigratie en Asiel, 2013 C.J.E.U. 720, and HJ (Iran) and HT (Cameroon) v. Secretary of State for the Home Department,2010 U.K.S.C. 31.

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Footnote 46

IRB. Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution. 1996.

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Footnote 47

UK Home Office 2016, supra note 5 at p. 8, and UK Home Office, Asylum Policy instruction: Gender identity issues in the asylum claim. UK: UK Home Office, 2011, p. 2.

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Footnote 48

UNHCR, supra note 31 at p. 4. See also X (Re) 2013 CanLII 91131 (RAD) at paras. 37, 42, 43.

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Footnote 49

IRB. Chairperson's Guideline 3: Child Refugee Claimants—Procedural and Evidentiary Issues. 1996.

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Footnote 50

Sebastiao v. Canada (Minister of Citizenship and Immigration), 2016 FC 803 (CanLII) at paras. 33–34.

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Footnote 51

UNHCR, supra note 31 at para. 27. See also A.B., supra note 8 at paras. 17–18.

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Footnote 52

In Peiris v. Canada (Minister of Citizenship and Immigration), 2004 FC 1251 (CanLII) at para. 21, the Court found that police in Sri Lanka have used the existence of legislation criminalizing non-conforming sexual activity to blackmail gay men, even though the legislation is not enforced in the country.

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Footnote 53

See Su v. Canada (Citizenship and Immigration), 2012 FC 554 (CanLII). See also UNHCR, supra note 31 at para. 29 and ICJ, supra note 46 at p. 139. In Sebastiao, supra note 51, the Court held that it was reasonable for the RAD to have concluded that the existence of a law of general application (in this case, a public morality law) did not give rise to a well-founded fear of persecution in the particular circumstances of the case as there was no evidence of the actual enforcement of this law against individuals.

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Footnote 54

X (Re), 2010 CanLII 59588 at paras. 9-19.

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Footnote 55

UNHCR, supra note 31 at para. 21. See also ICJ, supra note 46 at pp. 123–128.

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Footnote 56

Egeresi v. Canada (Minister of Citizenship and Immigration), 2003 FC 1133 (CanLII).

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Footnote 57

Ballestro Romero v. Canada (Citizenship and Immigration), 2012 FC 709 (CanLII). See also UNHCR, supra note 31 at para. 25.

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Footnote 58

ICJ, supra note 46 at p. 125. See also UNHCR,supra note 31 at para. 24.

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Footnote 59

UNHCR, supra note 31 at para. 24.

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Footnote 60

Ibid. at para. 25.

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Footnote 61

Smith v. Canada (Minister of Citizenship and Immigration), 2009 FC 1194 (CanLII).

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Footnote 62

European Asylum Support Office. Researching the situation of lesbian, gay, and bisexual persons (LGB) in countries of origin. 2015, p. 10. See also A.B., supra note 6 at paras. 19, 23.

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Footnote 63

UK Home Office 2011, supra note 48 at p. 11; UK Lesbian & Gay Immigration Group, supra note 19 at p. 27.

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Footnote 64

Martinez, supra note 9.

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Footnote 65

LaViolette, supra note 3 at p. 34.

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Footnote 66

Kovacs v. Canada (Citizenship and Immigration), 2010 FC 1003 (CanLII); Buri v. Canada (Citizenship and Immigration), 2014 FC 45 (CanLII).

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Footnote 67

Galogaza v. Canada (Citizenship and Immigration), 2015 FC 407 (CanLII) at para. 14. See also Melo v. Canada (Citizenship and Immigration), 2008 FC 150 (CanLII).

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Footnote 68

See A.B., supra note 8, where there was no evidence that laws criminalizing homosexual acts were enforced.

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Footnote 69

Examples of government action may include the enactment of general anti-discrimination legislation, the enactment of legislation allowing same-sex marriage, anti-discrimination training to police or security forces, public information campaigns, and public statements.

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Footnote 70

A.B., supra note 8.

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Footnote 71

Okoli v. Canada (Minister of Citizenship and Immigration), 2009 FC 332 (CanLII).

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Footnote 72

Rodriguez Diaz v. Canada (Minister of Citizenship and Immigration), 2008 FC 1243 (CanLII).

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Footnote 73

In Leon v. Canada (Citizenship and Immigration), 2014 FC 406 (CanLII), the Court held that an internal flight alternative (IFA) analysis must address access to health care for HIV positive persons.

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Footnote 74

In Rodriguez Diaz, supra note 72, the Court considered the potential to experience ostracism from friends and family in the IFA.

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Footnote 75

Leroux v. Canada (Citizenship and Immigration), 2007 FC 403 (CanLII) at para. 30. See also Morel v. Canada (Citizenship and Immigration), 2011 CanLII 94560 (IAD) at paras. 28 and 38.

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Footnote 76

M. v. H., [1999] 2 S.C.R. 3.

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Footnote 77

In Namwo v. Canada (Public Safety and Emergency Preparedness), 2016 CanLII 74021 (IAD) at paras. 72–75, the IAD held that it would cause the appellant, a trans woman, undue hardship to be returned to her country of reference as she would more than likely face the same marginalization and risk as when she left, including discrimination in access to employment and being ostracized from family members.

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Footnote 78

Ibid. at paras. 56–59. The IAD found that, in the particular circumstances of the case, which involved a trans woman who had obtained false identity documents to change her gender from male to female, the seriousness of the appellant's misrepresentation as to identity was "mitigated by her underlying motive for changing her identity, which was not to gain an immigration advantage, but rather to express her gender identity"; (para. 59).

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