Landmark refugee ruling in Canada

IMMIGRATION / UN would set new standards for persecution, proving gayness

Twenty-eight-year-old Tam has never been threatened, beaten or thrown in jail for being gay. In his home country of Vietnam homosexuality isn’t illegal. It isn’t mentioned in any law. In fact, it’s rarely mentioned at all. But the Toronto student, who applied for refugee status in 2006, says gay and lesbian people there are still punished for being themselves.

“As for physical violence, I don’t think it’s common in Vietnam. Mentally, there’s a lot,” says Tam, who, asks that his second name not be used.

He says authorities in Vietnam pressure gay and lesbian people to remain hidden and prevent gay groups from organizing, while state-controlled media deride homosexuality as a disease of the West. If he returned to Vietnam, Tam fears he would be forced to choose between marrying a woman and becoming a social pariah.

“The people who hold power [in Vietnam] are very powerful,” he says. “They can change your life if they want to.”

In a Jan 22 precedent-setting decision the Immigration and Refugee Board of Canada (IRB) accepted Tam’s plea to stay in Canada. Tam’s case is an especially important one because for the first time the IRB cited a new report released by the United Nations High Commissioner for Refugees (UNHCR) as basis for a decision involving sexual orientation.

Published late last year the report sets out legal opinions on issues critics say undermine requests for asylum by gay and lesbian people around the world. In Canada IRB members have, for example, demanded proof that a claimant is gay and suggested they simply go back to where they came from and avoid drawing attention to their sexuality.

There is no procedure or guidelines for when the IRB requests proof that a claimant is gay or lesbian — proof that might not exist if a claimant was forced to conceal it back home. Without corroborating evidence like photographs or testimony, adjudicators have been left to decide for themselves if a claimant is telling the truth about his or her sexuality.

“There are many cases that have identified problems with the way tribunal members evaluate claims,” says immigration lawyer Michael Battista, who represented Tam before the IRB. “For example, basing the person’s claim of being LGBT on behaviour — being effeminate for gay men or being masculine for lesbian women…. There have been cases where a tribunal member has rejected someone’s claim because they had been married or had kids. These are all based on presumptions about the way the gay community behaves.”

In one high-profile case last year Alvaro Orozco, a gay Nicaraguan man who fled to the US in his teens, was denied refugee status after a tribunal member said a lack of same-sex relationships while Orozco was in the US meant he isn’t gay.

In Tam’s case Battista argued that his client would have been unable to live life as a gay man in Vietnam because the society there doesn’t tolerate same-sex couples in the public eye.

“Pressure to be discreet can be a kind of persecution,” Battista explains. “It’s forcing you to be someone you’re not.”

“The UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity considers persecution to include being compelled to forsake or conceal one’s sexual orientation,” wrote the tribunal in its decision to allow Tam to stay. “Where this is instigated by the state, it may amount to persecution.”

The IRB concluded that it is unfair to expect Tam to hide his sexual orientation in return for a normal life.

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