A Nicaraguan man was refused asylum in Canada because he had not pursued gay relationships. A gay man from St. Kitts was denied because a refugee judge said cops in his home country could’ve protected him. A Ugandan lesbian refugee was denied because her story was ruled not credible.

Asylum claims based on sexual orientation are hard to verify and validate, as LGBTQ claimants are an invisible minority with no membership or specific physical appearance to prove their identity, presenting a huge challenge for decision-makers at the Immigration and Refugee Board.

That challenge has prompted the board to develop its first-ever guidelines on SOGIE — short for sexual orientation and gender identity and expression — to help decision-makers handle proceedings involving the LGBTQ population.

“Questioning an individual about their SOGIE can feel intrusive and may be difficult for the individual concerned. Questioning should be done in a sensitive, nonconfrontational manner. Open-ended questions should be employed where appropriate,” advises the guidelines, released this week.

“While an individual's experiences and behaviours related to their SOGIE may be expressed in both the private and public spheres, an individual's testimony may, in some cases, be the only evidence of their SOGIE.”

The board has published various guidelines that focus on specific groups including children, women and civilian non-combatants in civil war situations, as well as procedures on immigration detention, scheduling and conduct at refugee hearings.

Previously, proceedings involving sexual minorities were lumped into the general guidelines in handling what the board described as “vulnerable persons.”

“The guideline’s intended goal is to promote a greater understanding of the diversity and complexity of the situation of individuals with diverse SOGIE; establish guiding principles for decision-makers in adjudicating cases involving them; and provide parties with a clearer understanding as to what to expect when appearing before the IRB,” said refugee board spokesperson Anna Pape.

“The policy is not binding against decision-makers, but where it applies, they have to provide justifications for not doing that.”

The guidelines, which apply to all the tribunals under the board, are divided into 11 chapters, addressing the needs to protect sensitive information, use appropriate language, avoid stereotypes and assess credibility.

The refugee board said statistics of asylum claims received and granted based on sexual orientation were not available, but data obtained by Osgoode Hall Law School professor Sean Rehaag show that 2,371 or 13 per cent of all 18,221 asylum decisions made between 2013 and 2015 were based on sexual orientation, and that 70.5 per cent of them were granted compared to 62.5 per cent of all claims.

“This is such an important area of refugee law. In many countries around the world, sexual minorities continue to be persecuted, and all too often killed. This is exactly the sort of group that Canada’s refugee determination system should be protecting,” said Rehaag.

“The guidelines are a step in the right direction. Sexual minority refugee claims are among the most difficult cases the board is called upon to decide. There is a long history of decision-makers drawing on problematic stereotypes to make such decisions, and especially in determining whether claimants are ‘really’ gay.”

In cautioning decision-makers to be aware of their own stereotypes, the guidelines warn adjudicators that they should not assume LGBTQ people:

Have feminized or masculinized appearances or mannerisms;

Share the same dynamics and characteristics across cultures;

Have had same-sex sexual experiences or relations;

Have refrained from heterosexual sexual experiences or having children;

Would actively participate in LGBTQ culture in Canada, including frequenting gay-predominant areas and social establishments or join community groups.

“Our clients who are LGBTQ refugees have fled from horrific persecution where many have spent decades hiding their identity. They deserve to have their claim heard by a Canadian decision-maker who not only respects their identity, but ensures a level of openness in speaking about past trauma,” said Toronto immigration lawyer Adrienne Smith.

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“There is an added-layer of sensitivity that is required when adjudicating these claims. The release of the SOGIE guidelines is one step towards this, however it remains to be seen how IRB members will adhere to the guidelines given their non-binding nature.”

Lawyer Aadil Mangalji, who represented the Ugandan lesbian claimant Yvonne Niwahereza Jele, said he particularly likes the highlights of the stereotypes against LGBTQ people and the guidelines’ caution against the assumption that the group receives equal access to state protection.

“These are especially beneficial to LGBTQ claimants before the board. It is a step forward,” said Mangalji, whose client’s deportation has been stayed after Canadian officials agreed to review her case.