McGill Law Journal Revue de droit de McGill
CHALLENGES TO ASSESSING SAME-SEX
RELATIONSHIPS UNDER REFUGEE LAW IN CANADA
Nicholas Hersh*
This article suggests that there are reasons to be
concerned about the way relationship history impacts
credibility assessments for refugee claims based on
sexual orientation. Decision makers written assess-
ments often reveal insufficient consideration of the
psychosocial barriers that may impinge on sexual mi-
nority refugees ability to testify on their relationships.
The multinational and multicultural setting of refu-
gee-status proceedings poses unique challenges for
sexual minority refugee claimants in having their
membership in a particular social group established.
Understanding and expressing sexual identity spans
cultural divides, and therefore, a claimants expressed
identity may not match the decision makers expecta-
tions. Notions of love and intimacy may also be cultur-
ally construed, and therefore expectations of how these
notions manifest in long-term relationships may be in-
appropriate in the context of refugee status determina-
tion.
This article emphasizes that implausibility find-
ings concerning claimants relationships should be
made cautiously. Decision makers should not assume
that sexual minorities in countries in which homosex-
uality is stigmatized or criminalized are devoid of the
volition to have same-sex partners. Nor should they
assume that sexual minority refugees are necessarily
willing to embrace same-sex relationships soon after
arriving in Canada. Evaluating same-sex relationships
according to the Cass Staged-Identity model can lead
to persistent doubts about claimants credibility.
In sum, this article attempts to canvass the po-
tential pitfalls of Canadian adjudication methods in
cases of sexual minority refugee claimants, and to pro-
pose recommendations for evaluating testimony and
evidence of these relationships.
Cet article fait valoir quil y a des raisons de ques-
tionner la faon dont lhistorique des relations affecte
lvaluation de crdibilit pour les demandes dasile fon-
des sur lorientation sexuelle. Les valuations crites
dmontrent souvent une prise en considration insuffi-
sante des obstacles psychosociaux susceptibles de porter
atteinte la capacit des rfugis membres de minorits
sexuelles tmoigner sur leurs relations. Lenvironne-
ment multinational et multiculturel des procdures pour
la dsignation du statut de rfugi pose des dfis uniques
pour les demandeurs dasile de faire reconnatre leur ap-
partenance un groupe social particulier. Comprendre et
exprimer une identit sexuelle transcendent les divisions
culturelles : lidentit exprime par un demandeur pour-
rait donc ne pas correspondre aux attentes du dcideur.
Les notions damour et dintimit peuvent aussi
sexprimer de faon culturelle. Les attentes en ce qui a
trait la manifestation de ces notions peuvent donc tre
inappropries dans le contexte de la dtermination du sta-
tut de rfugi.
Cet article souligne que les dterminations dinvrai-
semblance concernant les relations des demandeurs doi-
vent se faire avec prudence. Les dcideurs ne doivent pas
prsumer que les minorits sexuelles dans les pays o
lhomosexualit est criminalise ou stigmatise sont d-
pourvues de la volont davoir des partenaires du mme
sexe. Ils ne doivent pas non plus prsumer que les rfu-
gis membres de minorits sexuelles sont ncessairement
prts adopter des relations homosexuelles peu aprs
leur arrive au Canada. valuer les relations homo-
sexuelles selon le modle didentit Cass peut conduire
des doutes persistants quant la crdibilit des deman-
deurs dasile.
En somme, cet article tente de prospecter les piges
potentiels des mthodes canadiennes de dcisions en ma-
tire de demandes dasile par des rfugis membres de
minorits sexuelles et de proposer des recommandations
pour lvaluation de tmoignages concernant ces relations
et de preuves leur effet.
* Nicholas Hersh, JD, LL.L, is an immigration and refugee lawyer at South Ottawa
Community Legal Services. He wishes to thank Jessica Hamel-Akr, Alex Sheldon,
Justin Glinski, and the anonymous peer-reviewers at the McGill Law Journal for their
assistance in editing an earlier version of this article. He would also like to thank Pro-
fessor Nicole LaViolette for her ongoing support and encouragement in writing this ar-
ticle, which started as a directed research project under her supervision.
Citation: (2015) 60:3 McGill LJ 527 Rfrence : (2015) 60 : 3 RD McGill 527
Nicholas Hersh 2015
528 (2015) 60:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
Introduction
I.
II.
Sexual Minority Refugee Claimants and Their Relationships:
An Empirical Study
A. Overview of Canadian Refugee Law and Claims Based on
Sexual Orientation
B. The Significance of Same-Sex Relationships in Refugee
Claims
C. Disclosure Same-Sex Relationships and Establishing
Membership in an LGB Social Group
D. No Disclosure of Same-Sex Relationships and Establishing
Membership in an LGB Social Group
Identifying and Addressing Credibility Concerns
A. Mental Health Challenges Impacting Testimony on Same-
Sex Relationships
B. How Hetero Are Refugees Same-Sex Relationships?
C. Cross-Cultural Considerations of Same-Sex Relationships
D. Implausibility Findings Regarding Existence or Absence of
Same-Sex Relationships
1. Implausibility of Same-Sex Relationships in Countries of
2. Implausibility of No Same-Sex Relationships in Canada
Origin
III.
Recommendations
Conclusion
529
531
531
536
538
542
543
543
549
556
560
560
563
569
571
SAME-SEX RELATIONSHIPS UNDER REFUGEE LAW IN CANADA 529
Introduction
In 1993, Canada became one of the first countries to accept sexual ori-
entation as aground on which a person could claim refugee protection.
This was a commendable and groundbreaking development in Canadian
refugee law. However, challenges remain in securing a fair and equitable
refugee determination process for lesbian, gay, and bisexual (LGB) claim-
ants arriving to Canada.1 Some scholars have asserted, for instance, that
adjudicators sometimes impose burdensome and unfair expectations on
claimants to prove their sexual orientation when soliciting refugee status.
For example, one consistent criticism has been that adjudicators have a
propensity to evaluate the credibility of sexual minority claimants accord-
ing to Western notions of gay and lesbian appearances or lifestyles.2 Other
adjudicators have concluded that claimants are not sexual minorities
based on the fact that they demonstrated hesitancy or an unwillingness to
fully embrace their sexual orientation.3
1 While lesbian, gay, and bisexual are provisional terms used in this article, they may not
accurately reflect the lives of those who identify or are perceived to be someone other
than heterosexual. Thus, this article generally uses the term sexual minorities which
refers to people whose minority status is based on their sexual orientation, sexual iden-
tity, same-sex sexual and intimate conduct, or their roles and behaviors at odds with
societal expectations attributed to their gender. Transgender refugee claimants also
face persecution in many parts of the world due to their refusal to espouse societal ex-
pectations on gender. The Federal Court has recognized that the Board must analyze
claimants risks on account of their nonconforming gender identity (see e.g. Contreras
Hernandez v Canada (Citizenship and Immigration), 2007 FC 1297 at para 39, 163
ACWS (3d) 443). However, it is beyond the scope of this article to provide an in-depth
analysis on assessing credibility of transgender refugee claimants. Rather, this article
proposes that evidence of same-sex relationships is sometimes essential in establishing
sexual orientation, and that challenges may arise in considering this evidence.
2 See e.g. Nicole LaViolette, Gender Related Refugee Claims: Expanding the Scope of the
Canadian Guidelines (2007) 19:2 Intl J Refugee L 169 at 19296 [LaViolette, Gender
Guidelines]; Zsolt Bobis, You Are Not What You Ought to Be: Credibility Assessment
in Sexuality-Based Asylum Cases (2012) Central European University 1 at 4345; Sab-
ine Jansen & Thomas Spijkerboer, Fleeing Homophobia: Asylum Claims Related to
Sexual Orientation and Gender Identity in Europe (Amsterdam: COC Nederland & Vri-
je Universiteit, 2011) at 47.
3 For example, Millbank contends that adjudicators partly focus their assessments on
how claimants have expressed their same-sex sexuality in countries of asylum. This ad-
judicative approach to probing credibility demonstrates that if you have come from a
place of oppression/ covert experience of your sexuality, then the inevitable outcome of
relocating should be enthusiastic engagement in cultural manifestations of gayness, be-
cause that is how freedom is expressed. Jenni Millbank, The Ring of Truth: A Case
Study of Credibility Assessment in Particular Social Group Refugee Determinations
(2009) 211 Intl J Refugee L 1 at 19 [Millbank, The Ring of Truth]. See also Laurie
Berg & Jenni Millbank, Constructing the Personal Narratives of Lesbian, Gay, and Bi-
sexual Asylum Claimants (2009) 22:2 J of Refugee Studies 195 at 203204. Berg &
530 (2015) 60:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
This article suggests that relationship history is a significant compo-
nent of determination hearings because it might greatly affect the credi-
bility findings of refugee decision makers in relation to sexual orientation.
In making the case that they are members in a particular social group
as required under refugee law, sexual minority claimants will be asked to
testify about their same-sex intimate and sexual relationship history. Of
interest is the way in which relationship evidence is perceived and evalu-
ated by refugee adjudicators when deciding whether a claimant is a mem-
ber of an LGB social group.
Part I of this article begins with an empirical analysis of adjudication
trends gleaned from publicly accessible case law. In spite of methodologi-
cal limitations, these trends suggest that credible evidence of past or cur-
rent same-sex relationships may be instrumental in establishing mem-
bership in a particular social group. The challenges outlined in this article
therefore warrant serious consideration.
Following this empirical analysis, Part II of this article focuses on
challenges in properly assessing evidence and testimony of same-sex rela-
tionships in refugee-status determination proceedings. Part II is divided
into four subparts. First, sexual minority claimants may face mental
health barriers in delivering testimony on their relationships. For in-
stance, decision makers sometimes fail to adequately consider that claim-
ants may be struggling with post-traumatic stress disorder and internal-
ized homophobia. However, such considerations could be essential to un-
derstanding why a claimant may struggle to effectively articulate experi-
ences related to same-sex partners during a refugee status determination
hearing.
Second, decision makers might rely on a heteronormative framework
to conceptualize sexuality, which can also prove detrimental to the evalu-
ation of refugees sexual and intimate relationships. This issue has arisen
in the Canadian and Australian immigration contexts more generally,
where the definition of conjugality does not always extend to the type of
relationships developed and sustained by same-sex couples. In the refugee
context, adjudicators have emphasized the longevity of claimants part-
nerships as a key reason to expect testimony and evidence demonstrating
bona fide same-sex relationships.
Third, decision makers might also have a restrictive cross-cultural
understanding of sexuality. The importance of claimants cultural back-
Millbank (explaining why LGB claimants might struggle with speaking frankly of their
past because of inter alia memory limitations or self-stigmatization and how LGB
claimants whose inability to articulately explain themselves may have their refugee
claims refused).
SAME-SEX RELATIONSHIPS UNDER REFUGEE LAW IN CANADA 531
ground in understanding their same-sex experiences is therefore exam-
ined. Through research and jurisprudence, this subpart questions wheth-
er commonly defined values related to relationships such as love, intima-
cy, and sexuality are culturally construed. If such is the case, then deter-
mining the credibility of a refugees testimony based on Western assump-
tions of relationship development is an inappropriate adjudicative prac-
tice, which may yield unjust results.
Directing attention to these three key challenges in assessing claim-
ants supports the argument that there are reasons to be concerned about
the way decision makers approach narratives involving same-sex rela-
tionships. The fourth section of Part II of this article refers to the Cass
Staged-Identity model (the Cass model) of sexual identity development to
illustrate the potential challenges in determining credibility of claimants
who speak of volition to engage in same-sex relationships in their coun-
tries of origin yet appear reticent to enter into same-sex relationships in
Canada. Adjudicators who view relationships similarly to the stages of the
Cass model may overlook considerations of mental health, culture, and
heteronormativity, resulting in a flawed and biased assessment of claim-
ants relationships.
The article concludes by setting out practical recommendations for not
only decision makers who are handling evidence and testimony of same-
sex relationships in refugee claims based on sexual orientation, but also
legal practitioners who represent sexual minority refugees in refugee sta-
tus-determination proceedings. While the recommendations provided are
based on published case law and academic research, this article will hope-
fully serve as a base for further examining the interconnection of law and
sexual orientation.
I. Sexual Minority Refugee Claimants and Their Relationships: An
Empirical Study
A. Overview of Canadian Refugee Law and Claims Based on Sexual
Orientation
Applications for refugee protection in Canada are handled by the Ref-
ugee Protection Division4 (RPD), which constitutes a section of the Immi-
gration and Refugee Board (IRB or Board). The adjudicator, known as the
Board member, determines whether claimants are refugees following the
definition provided by the United Nations Geneva Convention Relating to
4 Previously named the Convention Refugee Determination Division (CRDD).
532 (2015) 60:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
the Status of Refugees (Convention),5 reproduced in section 96 of the Im-
migration and Refugee Protection Act (IRPA)6 According to the Conven-
tion, a refugee is a person who is outside of his or her country of nationali-
ty or habitual residence; who has a well-founded fear of persecution for
reasons of race, religion, nationality, political opinion, or membership in a
particular social group; and who is unable or unwilling to seek state pro-
tection in his or her country of nationality or habitual residence.7 Rejected
claimants may appeal to the recently established Refugee Appeals Divi-
sion (RAD) of the IRB pending certain conditions. However, those who in-
ter alia are designated foreign nationals, whose claims were manifestly
unfounded, or who come from countries designated by the Minister as
safe, may not file an appeal with the RAD.8 Beyond an appeal, a claimant
may submit an application to the Federal Court to judicially review the
RPDs or RADs decision.9 In many cases, including ones referred to in this
article, the Federal Court granted the judicial review; this may demon-
strate a degree of efficacy to the systems checks and balances. However,
the analysis presented here focuses on the decision-making norms of ini-
tial refugee protection decisions.
The notion of persecution is a central component of the definition of a
refugee. Though left undefined in the IRPA and the Convention, persecu-
tion is considered to be a sufficiently serious harm that is inflicted in a
persistent, repetitive, and systemic manner.10 Discrimination may also
amount to persecution if the measures of discrimination lead to conse-
quences of a substantially prejudicial nature for the person concerned.11
5 Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 150, Can TS
1969 No 6 (entered into force 22 April 1954) [Refugee Convention].
6 Immigration and Refugee Protection Act, SC 2001, c 27, s 96 [IRPA].
7 Refugee Convention, supra note 5, s 1(a)(2).
8 IRPA, supra note 6, s 110(2).
9 Ibid, s 72.
10 See Rajudeen v Canada (Minister of Employment and Immigration),(1984), [1985] 55
NR 129 at para 14, [1984] FCJ No 601 (QL) (FCA); Sagharichi v Canada (Minister of
Employment and Immigration) (1993), [1995] 182 NR 398 at para 2, FCJ No 796 (QL)
(FCA). See also UNHCR, Handbook on Procedures and Criteria for Determining Refu-
gee Status under the 1951 Convention and the 1967 Protocol relating to the Status of
Refugees, UN Doc HCR/IP/4/Eng/Rev.1, January 1992 at paras 5153, online: Refworld
11 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, UN Doc
HCR/GIP/12/09, 23 October 2012 at para 17, online: Refworld
UNHCR to provide legal interpretations and offers adjudicative practices for states, de-
cision makers, practitioners, and the UNHCR for the purposes of refugee status deter-
SAME-SEX RELATIONSHIPS UNDER REFUGEE LAW IN CANADA 533
Persecution may be characterized by assault, rape, honor killings, or
forced medical treatmentall of which exemplify experiences that sexual
minority refugee claimants have related.12
Under Canadian refugee law, claimants must prove that their subjec-
tive fear of persecution, were they to be sent back to their country of
origin, is well-founded, meaning that the likelihood of harm feared is
more than a mere possibility.13 The objective foundation of the claimants
fear typically depends on probative, independent documentation.14 Addi-
tionally, refugee claimants must provide clear and convincing evidence
that they are unable or unwilling to seek protection from their state, un-
less the persecutors in question are acting on behalf of it.15 Because refu-
gee protection is a subsidiary form of protection, states retain the primary
responsibility for the security of their nationals. International refugee
protection, therefore, will only be provided when the claimants state ab-
dicates this responsibility. Human rights documentation outlining how a
state enforces laws proscribing homosexual conduct would be evidence of
a states unwillingness to protect sexual minority refugee claimants.16
Finally, the Convention requires that a claimant establish a well-
founded fear of persecution owing to at least one of five grounds enumer-
ated in the Convention: race, nationality, religion, political opinion, or
membership in a particular social group. These grounds confer protection
to individuals from persecution and from discrimination prohibited by
human rights law,17 and serve to limit the ambits of the Convention.18
mination. The UNHCR SOGI Guidelines replace the UNHCR, UNHCR Guidance Note
on Refugee Claims Relating to Sexual Orientation and Gender Identity, 21 November
2008, online: Refworld
12 Timothy J Randazzo, Social and Legal Barriers: Sexual Orientation and Asylum in the
United States in Eithne Luibhid & Lionel Cant Jr, eds, Queer Migrations: Sexuality,
US Citizenship, and Border Crossings (Minneapolis: The University of Minneapolis
Press, 2005) 30 at 36 [Randazzo]. See also UNHCR SOGI Guidelines, supra note 11 at
paras 2025.
13 See Ponniah v Canada (Minister of Employment and Immigration) (1991), [1992] 132
NR 32 at para 5, [1991] FCJ No 359 (QL) (FCA).
14 This has been a reoccurring challenge for sexual minority refugees. Human rights
abuses toward sexual minorities remain undocumented in many countries due to the
prevailing stigma surrounding sexual orientation. When reports on living conditions for
sexual minorities are unavailable, some adjudicators have relied on inappropriate
sources, including gay travel guides, to determine if refugees have an objective fear of
homophobic persecution in their countries of origin. See Nicole LaViolette, Independ-
ent Human Rights Documentation and Sexual Minorities: An Ongoing Challenge for
the Canadian Refugee Determination Process (2009) 13:2/3 Intl JHR 437 at 449.
15 See Canada (AG) v Ward, [1993] 2 SCR 689, 103 DLR (4th) [Ward].
16 UNHCR SOGI Guidelines, supra note 11 at para 36.
17 Bobis, supra note 2 at 13.
534 (2015) 60:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
Some sexual minority refugees have made claims on religious grounds
where homosexuality is deemed a crime against religion in their country
of origin.19 Political opinion has also been raised as a ground for sexual
minority applicants. In these cases, claimants argue that their refusal to
comply with societal expectations regarding gender rolesby refusing to
get married or raise children for instanceconstitutes an imputed politi-
cal opinion.20
Claims for refugee status based on sexual orientation have been most
commonly recognized within the category of membership in a particular
social group.21 Under Canadian refugee law, this may be a group defined
by an innate or immutable characteristic. This encompasses groups whose
members voluntarily associate themselves for reasons so essential to their
human dignity that they should not be forced to renounce their associa-
tion and groups associated with a voluntary status that is unchangeable
due to its historic importance.22 The 1993 Supreme Court decision in Can-
ada (A.G) v. Ward confirmed in obiter dictum that sexual minorities con-
stitute a particular social group because sexual orientation is an innate
and unchangeable characteristic.23
The Ward decision was a seminal one in that it clarified that sexual
orientation is a ground of protection under the Convention.24 Decision
makers are now required to determine if sexual minority claimants meet
all of the requirements of the definition before being granted refugee sta-
tus. In relation to membership in a particular social group, claimants
have often been compelled to bring forward evidence that they are in fact
18 See Ward, supra note 15 at 73132.
19 See Re CXS, [1995] CRDD No 134 (QL) (IRB); Re PLZ, [2000] CRDD no 97 (QL) at para
12 (IRB); Osagie v Canada (Minister of Citizenship and Immigration), 2007 FC 852, 63
Imm LR (3d) 146. See also LaViolette, Gender Guidelines, supra note 2 at 202.
20 See e.g. UNHCR SOGI Guidelines, supra note 11 at para 50. Political opinion may in-
clude an opinion as to gender roles expected in the family or as regards education,
work or other aspects of life; sexual orientation was also considered a political opinion
in a claim from Cuba as it exemplified a non-adherence to Communist Revolution: Re
VOZ, [1993] CRDD No 164 (QL) (IRB).
21 See e.g. UNHCR SOGI Guidelines, supra note 11 at para 46.
22 See Ward, supra note 15 at 744.
23 Ibid at 739.
24 Although viewing sexual minorities as members of a particular social membership was
no longer problematic, some academic scholars argue that sexual orientation should be
recognized as fundamental to human dignity rather than an innate, immutable charac-
teristic. See e.g. Sean Rehaag, Patrolling the Borders of Sexual Orientation: Bisexual
Refugee Claims in Canada (2008) 53:1 McGill LJ 59 at 9798. See also Nicole LaVio-
lette, The Immutable Refugees: Sexual Orientation in Canada (AG) v Ward (1997) 55
UT Fac L Rev 1].
SAME-SEX RELATIONSHIPS UNDER REFUGEE LAW IN CANADA 535
gay, lesbian or bisexual. Decision makers then evaluate this evidence to
determine its credibility. Decision makers who do not believe claimants
are LGB will conclude that they are not part of a particular social group
and, as a result, will deny the claim.25 The credibility of LGB claimants
sexual orientation is therefore a crucial element for establishing their
claims in Canada.26 The emphasis on credibility in decision making has
also been documented in the United States, the United Kingdom, and
Australia.27
While there is a presumption that claimants statements are truthful
unless there is a valid reason to doubt their truthfulness,28 claimants still
bear the onus of proving their membership in a particular social group.29
Adjudicators must judge whether this onus has been met by virtue of a
claimants testimony, witnesses, and documentary evidence, such as affi-
davits or police and medical reports. These assessments should be con-
ducted in the light of what is generally known about conditions and the
laws in the claimants country of origin, as well as the experiences of simi-
larly situated persons in that country.30 Decision makers should there-
fore refer to country of origin information on the social and legal realities
of sexual minorities before making credibility assessments.
25 See Millbank, The Ring of Truth, supra note 3 at 4.
26 Ibid. See also UNHCR SOGI Guidelines, supra note 11 at para 62.
27 Jansen & Spijkerboer, supra note 2 at 47; Millbank, supra note 3 at 4.
28 See Maldonado v Canada (Minister of Employment and Immigration) (1979), [1980] 2
FC 302 at 305, [1980] 31 NR 34 (FCA) [Maldonado]. Further, the Refugee Appeal
Board clarified that lack of corroborating evidence of ones sexual orientation in and of
itself, absent negative, rational credibility or plausibility findings related to that issue
[sexual orientation], would not be enough to rebut this presumption of truthfulness
(RAD File No MB3-04744, [2014] RADD No 13 (QL) at para 56 (IRB) [emphasis in orig-
inal]).
29 See Zamanibakhsh v Canada (Minister of Citizenship and Immigration), 2002 FCT
1137, FCJ No 1525 (QL) at paras 1516 (FCTD). See also Nicole LaViolette, Sexual
Orientation, Gender Identity, and the Refugee Status Determination Process in Cana-
da (2013) Immigration and Refugee Board: Refugee Protection Division Working Paper
at 21, online: Social Science Research Network
lette, RPD Process in Canada].
30 See Immigration and Refugee Board, Refugee Protection Division, Legal Services, As-
sessment of Credibility in Claims for Refugee Protection (31 January 2004) at para 1.2,
online: IRB
[Assessment of Credibility in Claims for Refugee Protection]. See also LaViolette, RPD
Process in Canada, supra note 29 at 21.
536 (2015) 60:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
B. The Significance of Same-Sex Relationships in Refugee Claims
This subpart explores how testimony of same-sex relationships may
play an important role in the credibility assessments relating to a claim-
ants membership in an LGB social group. Claimants who allege fear of
persecution because they are sexual minorities may relate past experienc-
es of: possessing erotic pictures of gay men;31 frequenting gay bars;32
changing their physical appearance to avoid being perceived as LGB;33
advocating for LGB rights;34 being fearful of familial or societal disap-
proval if they revealed their sexual identity;35 as well as knowledge of the
difference between living conditions for sexual minorities in their country
of origin compared to Canada.36
To determine how claimants sexual and intimate relationships are
assessed in credibility determinations on sexual orientation, I review 458
reported cases in Canada spanning from 1999 to 2014 from the RPD and
appeals to the RAD, in which claimants alleged a well-founded fear of
persecution on account of their sexual orientation. Additionally, I examine
judicial reviews of RPD decisions made by the Federal Court of Canada.
After exploring these cases, I attempt to trace adjudication trends pertain-
ing to relationships of sexual minority refugee claimants.
For each reviewed decision, I track whether the adjudicator casts
doubt on or disbelieves two pieces of information: first, claimants claims
about their same-sex relationships and, second, their alleged sexual orien-
tation. Unless otherwise indicated in the decision makers written judg-
ments, credibility of relationships and sexual orientation is assumed to be
unproblematic. I also discuss the link between sexual orientation credibil-
ity and a claimants silence on possible personal same-sex relationships.
In reviewing refugee cases in Canada, certain methodological limita-
tions were unavoidable. First, I was limited to decisions of the RPD, ap-
peals from the RAD, and judicial reviews from the Federal Court availa-
ble through online legal databases, including CanLII, Westlaw, and
Quicklaw. Any conclusions drawn, therefore, are based on a fraction of all
31 RPD File No MA9-12938, [2010] RPDD 583 (QL) at para 10 (IRB) [RPD File No MA9-
12938].
32 Guerrero v Canada (Minister of Citizenship and Immigration), 2011 FC 860, [2012] 1
Imm LR (4th) 67 at para 3 [Guerrero].
33 RPD File No MA7-06315, [2009] RPDD 468 (QL) at para 13 (IRB).
34 See Villicana v Canada (Minister of Citizenship and Immigration), 2009 FC 1205,
[2010] 86 Imm LR (3d) 191 at paras 34 [Villicana].
35 RPD File No MA9-12938, supra note 31 at para 3.
36 Odetoyinbo v Canada (Minister of Citizenship and Immigration), 2009 FC 501, FCJ No
614 (QL) at para 5 [Odetoyinbo].
SAME-SEX RELATIONSHIPS UNDER REFUGEE LAW IN CANADA 537
sexual minority refugee claims assessed each year.37 Second, the dataset
gathered is heavily biased toward negative decisions in which refugee pro-
tection was denied, due to difficulties in obtaining information about posi-
tive decisions.38 The dearth of accessible positive decisions is partly ex-
plained by the fact that the RPD generally only provides written reasons
for negative decisionsnormally, only upon a claimants request will the
RPD publish the reasons of an accepted case.39 In the mid and late 1990s,
the RPD did publish more positive decisions in cases where sexual orien-
tation and gender identity were at issue, in order to establish jurispruden-
tial guidelines. However, following the legislative changes to the IRPA
which came into effect in December 2012, the law requires that only rea-
sons for rejecting refugee protection be provided to claimants in writing.40
It follows that ascertaining why adjudicators reject a claim is more
feasible than understanding why a claimant is deemed credible and
granted refugee status. The evidence related to the personal, sexual, and
romantic relationships studied pertains to cases where claimants were
deemed not credible. The exploration of decision making is therefore
largely limited to the context of adjudication in negative decisions. Conse-
quently, the inferences drawn in this section of the article cannot compre-
hensively reflect the credibility considerations of Canadian adjudicators in
LGB cases.
I have also considered decisions made on appeal in spousal sponsor-
ship applications submitted under Canadian immigration law to enhance
the analysis. These decisions were not included in the statistical collation
because these applications are outside the arena of refugee protection.
However, adjudicators who assess the merits of spousal sponsorships are
also members of the IRB who are expected to assess the conjugal nature
of personal relationships. The immigration sponsorship cases explored
thus provide greater insight into how IRB adjudicators perceive same-sex
partnerships.
37 According to Debora Eisl of IRB-Ottawa, there had already been 989 cases made so far
in the year on the grounds of sexual orientation, though only 69 could be found on In-
ternet legal databases at the time (Debora Eisl, e-mail message to author, 20 November
2012). Further, in their article on the challenges faced by LGBT claimants when devel-
oping their narratives, Berg and Millbank estimated that the published cases in Cana-
da reflected only 5% of the all cases made on sexual orientation. See Berg & Millbank,
supra note 3 at 219.
38 The last published decision in which protection based on sexual orientation in Canada
was granted was in 2007.
39 LaViolette, Gender Guidelines, supra note 2 at 184.
40 IRPA, supra note 6, s 169(d).
538 (2015) 60:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
Aside from methodological limitations, resource constraints limited
the scope of the analysis. Obtaining testimony of refugee claimants in-
volves ordering transcripts from RPD hearingsa process requiring sig-
nificant time and financial resources. Instead, the accounts of claimants
relationships are drawn from the written assessments of the adjudicator
hearing their case. It is therefore important to underline that claimants
evidence of their personal relationships exists in the form of the account
given by the adjudicator in his or her reasons for denying or granting ref-
ugee status.
Finally, for the purposes of this article, all relationships were counted
regardless of their level of intimacy, exclusivity, or duration. As discussed,
because the sample size is small and biased toward negative RPD deci-
sions, the problems in adjudication practices expressed in this article may
not be wholly representational of the state of Canadian decision making
in LGB cases. Despite methodological limitations, the trends revealed
support for the argument that that relationships can play an important
role in refugee determinations based on sexual orientation. The cases re-
viewed are also used to illustrate potential pitfalls in assessing same-sex
relationships. This article will, I hope, serve as a point of departure for
broader discussions regarding the interconnection between refugee law
and sexual orientation.
C. Disclosure of Same-Sex Relationships and Establishing Membership in an
LGB Social Group
This section explores the link between providing evidence of same-sex
relationships and establishing a claimants membership in an LGB social
group. Essentially, it examines how a decision makers written decision
relaying evidence of a same-sex relationship may be deemed important
evidence of a claimants sexual orientation. Of the 458 decisions explored,
275 contained testimony of claimants same-sex relationships in their
countries of origin, in Canada, or in both.
A credible testimony of same-sex relationships may constitute key ev-
idence when the central issue of the claim is membership in an LGB so-
cial group. For claimants whose relationships were deemed credible, 92
per cent of them did not face suspicion when attempting to prove their
sexual orientation to the decision maker. Conversely, for claimants whose
same-sex relationships did pose a credibility issue, 93 per cent of the cases
had the testimony about their sexual orientation discredited. See the fol-
lowing tables:
SAME-SEX RELATIONSHIPS UNDER REFUGEE LAW IN CANADA 539
Number of cases where the written decision contained testimony
of the claimants same-sex relationships and the credibility of
those relationships was not discredited in written decision
Of these cases, the number of ones where the adjudicator did not
raise concerns about claimants sexual orientation in the written
assessment
Percentage (160/174)
Number of cases where the written decision contained testimony
of the claimants same-sex relationships and the credibility of
those relationships was discredited in written decision
Of these cases, the number of ones where the adjudicator raised
concerns about the claimants sexual orientation in the written as-
sessment
Percentage (90/97)
174
160
91.95 %
97
90
93%
These initial trends would appear to highlight the relevance of rela-
tionships in establishing claimants membership in a particular social
group based on sexual orientation. The United Nations High Commis-
sioner for Refugees Guidelines on Sexual Orientation and Gender Identi-
ty (UNHCR SOGI Guidelines) uses the adjective gay to describe a man
whose enduring physical, romantic and/or emotional attraction is to other
men, with similar language used to characterize lesbian and bisexu-
al.41 Thus, the percentages presented may unsurprisingly support the
claim that claimants testimonies on same-sex partners are salient be-
cause they can most clearly demonstrate same-sex physical, romantic,
and emotional attractions. It follows that providing evidence of enduring
attractions to the satisfaction of a decision maker helps establish mem-
bership in an LGB social group as required by the Convention.
The critical importance given to testimony and evidence related to
same-sex relationships may also be unsurprising given that sexual minor-
ities remain targets of violence, harassment, and discrimination for es-
chewing social norms dictating their gender.42 In describing sexual cul-
41 UNHCR SOGI Guidelines, supra note 11 at para 10.
42 See Nicole LaViolette, Les identits multiples et le droit des rfugis : catgories juri-
diques fixes et rigides ? (2003) 15:3 Canadian Ethnic Studies/tudes ethniques au
Canada 39 at 4243; LaViolette, Gender Guidelines, supra note 2 at 182; Amnesty In-
540 (2015) 60:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
tures, Herdt states that, in many traditions around the world it is not the
gender of the sexual partner that matters so much as the sexual behavior
that occurs between individuals.43 For example, a gay male claimant
from Mexico alleged that his classmates in primary school insulted him
and even beat him to make a man of him once his sexual orientation be-
came apparent to them.44 In a large majority of the cases reviewed, sexual
minorities recounted having endured troubling experiences including: de-
prival of family support,45 vandalism,46 harassment from police,47 arrest,48
death threats,49 unemployment,50 dismissal from university,51 and physi-
ternational, Crimes of Hate, Conspiracy of Silence: Torture and Ill-Treatment Based
on Sexual Identity (2001) Amnesty International at 6
gender non-conformity is not always limited to sexual minorities. The Huffington Post
reported that recently in Jamaica, a teenage boy was chopped, stabbed, and shot to
death for attending a party dressed as a woman. His attackers were motivated not by
his sexual orientation, which is not raised in the article, but by his female impersona-
tion (Cavan Sieczkowski, Dwayne Jones, Cross-Dressing Jamaican Teen, Allegedly
Chopped and Stabbed to Death by Mob, The Huffington Post (25 July 2013), online:
43 Gilbert Herdt, Same Sex, Different Cultures: Exploring Gay and Lesbian Lives (Colora-
do: Westview Press, 1997) at 50.
44 Garibay Aguilar v Canada (Minister of Citizenship and Immigration) (5 January 2004),
[2004] RPDD No 79 at para 3 (QL), No MA3-05042, Immigration and Refugee Board of
Canada, Refugee Protection Division; Similarly, in Guerrero, supra note 32 at para 5,
the Peruvian claimant alleged that four men tried to rape her as a way to teach her
how to be a woman; A lesbian applicant from Mexico also testified that she and her
partner were sexually assaulted by three police officers, one of which who stated that he
would teach them how to become real women (Parrales v Canada (Minister of Citizen-
ship and Immigration), 2006 FC 504 at para 5, 54 Imm LR (3d) 120.
45 See RPD File No TA8-19538, [2010] RPDD 539 (QL) at para 2 (IRB) [RPD File No TA8-
19538]; RPD File No MA6-02138, [2007] RPDD 444 (QL) at para 4 (IRB); RPD File No
TA6-08893, TA6-08894, [2007] RPDD 330 (QL) at para 3 (IRB); Awoh v Canada (Minis-
ter of Citizenship and Immigration), 2006 FC 945 at para 3 (available on QL).
46 See Fosu v Canada (Minister of Citizenship and Immigration), 2008 FC 1135 at para 3,
172 ACWS (3d) 1018; RPD File No MA6-00969, [2006] RPDD 343 (QL) at para 2 (IRB).
47 See Quinatzin v Canada (Minister of Citizenship and Immigration), 2008 FC 937 at pa-
ra 5, 170 ACWS (3d) 610 [Quinatzin]; RPD File No MA3-03139, [2006] RPDD 375 (QL)
at para 7 (IRB) [RPD File No MA3-03139].
48 See Re LIE, RPD File No TA6-10702, [2008] RPDD 165 (QL) at para 3 (IRB).
49 Lawal v Canada (Minister of Citizenship and Immigration), 2008 FC 861 at para 3, 173
CRR (2d) 309.
50 See Re WIY, RPD File No MA6-01555, [2007] RPDD 2 (QL) at para 4 (IRB); Herrera v
Canada (Minister of Citizenship and Immigration), 2006 FC 1272 at para 6 (available
on QL); RPD File No MA3-03139, supra note 47 at para 6.
SAME-SEX RELATIONSHIPS UNDER REFUGEE LAW IN CANADA 541
cal assaults.52 The alleged accounts of violence and discrimination, in
many cases, did not occur following disclosure of their LGB identity, but
simply after their same-sex relationships came to the attention of their
persecutors. For example, in Quinatzin v. Canada (Citizenship and Immi-
gration),53 the father of the claimants boyfriend caught them kissing. The
father, who was a police officer, berated the claimant. In the following
days, police cars began parking in front of the claimants house. He was
eventually beaten unconscious and found himself naked in the back of a
police car. In this case, the claimant also recounted that he was bullied in
school for being perceived as gay. However, it was once his relationship
became known that serious threats to his life and security arose. Sexual
minorities often become victims of homophobic persecution when they de-
viate from socially constructed norms based on gender. It may, therefore,
not be surprising that accounts of same-sex relationships are salient evi-
dence when demonstrating membership in an LGB social group. Relation-
ships, however, were not always the only evidence presented to prove
sexual orientation. In the cases reviewed, claimants also testify about
possessing erotic pictures of gay men;54 frequenting gay bars;55 changing
their physical appearance;56 advocating for LGB rights;57 being fearful of
familial or societal disapproval if they revealed their sexual identity;58 as
well as knowledge of the living conditions for sexual minorities in their
country of origin compared to Canada.59 Yet, in 29 per cent of the cases
where the decision maker took issue with both the claimants sexual ori-
entation and their same-sex relationships, the claimants same-sex rela-
tionship history was the only evidence referred to by decision makers in
their written assessments of the claimants sexual orientation. See table
below:
51 See Tsyhanko v Canada (Minister of Citizenship and Immigration), 2008 FC 819 at pa-
ra 4, 168 ACWS (3d) 1041; RPD File No TA3-11540, [2006] RPDD 417 (QL) at para 3
(IRB).
52 See RPD File No TA6-07289, [2008] RPDD 232 (QL) at para 4 (IRB); Re YMQ, RPD File
No MA6-02355, [2007] RPDD 221 (QL) at para 3 (IRB); RPD File No MA5-06177, [2006]
RPDD 386 (QL) at para 3 (IRB).
53 See Quinatzin, supra note 47; RPD File No MA3-03139, supra note 47.
54 RPD File No MA9-12938, supra note 31 at para 10.
55 Guerrero, supra note 32 at para 3.
56 RPD File No MA7-06315, [2009] RPDD 468 (QL) at para 13 (IRB).
57 Villicana, supra note 34 at para 3.
58 RPD File No MA9-12938, supra note 31 at para 3.
59 Odetoyinbo, supra note 36 at para 5.
542 (2015) 60:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
Number of cases where the written decision contained testimony
of the claimants same-sex relationships and the credibility of
those relationships was discredited in written decision
Of these cases, the number of ones where the claimants same-
sex relationships were the only piece of evidence raised in the
written decision to discredit the claimants sexual orientation
97
28
Percentage (28/97)
28.86%
While the decision maker may have actually disbelieved other pieces of
evidence in relation to the claimants membership in an LGB social group,
only credibility concerns for the claimants same-sex relationships were
raised in the written assessments. Indeed, sexual orientation credibility
determination may turn on relationship patterns in a significant number
of cases.
D. No Disclosure of Same-Sex Relationships and Establishing Membership
in an LGB Social Group
Thus far, findings tend to support the claim that adjudicators may fo-
cus on same-sex relationships when they are disclosed. However, in 78 per
cent of the cases where the written decision did not contain testi-
mony of the claimants same-sex relationshipswhether in the
claimants countries of origin or in Canadadecision makers did not
doubt that the claimants were LGB
Number of cases where the written decision did not contain testi-
mony of the claimants same-sex relationships
Of these cases, the number of ones where the adjudicator did not
raise concerns about claimants sexual orientation in the written
assessment
Percentage (126/162)
162
126
77.78%
This outcome was perplexing at first: if negative credibility findings
are made when adjudicators discredit relationship evidence, how can it be
true that no evidence of relationships may lead to comparatively lower
rates of adverse credibility findings? It is possible that the claimant raised
same-sex relationships at the RPD hearing and, though the relationships
were disbelieved, the decision maker did not find credibility to be an issue
serious enough to analyze in the written assessment. Alternatively, deci-
sion makers may have opted to exclude testimony about claimants credi-
SAME-SEX RELATIONSHIPS UNDER REFUGEE LAW IN CANADA 543
ble same-sex relationships in the written decisions if the claimants mem-
bership in an LGB social group was not an issue. The written decision in
such cases would have focused on other criteria issues such as state pro-
tection or credibility of alleged events of past persecution. The
trends
gleaned from the cases reviewed suggest that there is a correlation be-
tween claimants evidence of same-sex relationships when they have such
a relationship history, and proving their sexual orientation to an adjudi-
cators satisfaction. As the Board stated in a 2010 decision:
I find it not reasonable not to find it necessary to mention any form
of gay or bisexual relationship, regardless how casual they were, to
bolster his claim of sexual orientation. It is not an easy task for this
panel to determine whether the claimant is a gay person or not, as
this is something emotional and imbedded in his inner feelings. The
panel can only go by the evidence adduced in the hearing and the
reasonable inferences derived therefrom.60
The statement above supports the argument that adjudicators would turn
toward claimants relationships as a necessary component of their credi-
bility analysis in cases where no other evidence to prove sexual orienta-
tion is provided. If such is the case, adjudicators should be mindful of is-
sues specific to sexual minorities when hearing the testimony of same-sex
relationships. These issues can seriously impact claimants capacity to re-
count their life stories, as well as decision makers approach to determin-
ing credibility of same-sex relationships.
II. Identifying and Addressing Credibility Concerns
A. Mental Health Challenges Impacting Testimony on Same-Sex
Relationships
The adjudicative challenges stemming from a sexual minority refugee
claimants mental health are both sensitive, and significant. Mental
health issues may greatly impact claimants capacity to articulate their
private experiences. For this reason, the analysis presented here is fol-
lowed by a set of practical recommendations for decision makers in ad-
dressing mental health issues as they pertain to evidence and testimony
of same-sex relationships presentedin both the hearing and the written
assessment.
In refugee status determinations, personal narratives and testimony
are often the only evidentiary sources attesting to a claimants member-
ship in a particular social group. Yet psychological barriers impede many
sexual minority refugees from conveying their story without contradic-
60 RPD File No TA8-14208, [2010] RPDD 155 (QL) at para 14 (IRB).
544 (2015) 60:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
tions, inconsistencies, omissions or implausibility,61 all of which potential-
ly undermine credibility.62 For instance, violence based on ones gender
and sexual orientation has been closely linked to post-traumatic stress
disorder (PTSD).63 According to the criteria set out in the Diagnostic and
Statistical Manual of Mental Disorders, individuals may suffer from
PTSD if they have experienced, witnessed, or [been] confronted with an
event or events that involved actual or threatened death or serious injury,
or a threat to the physical integrity of self or others 64 and that they re-
sponded to such events with intense fear, helplessness, or horror. 65
LGB refugees are not the only ones whose lives are affected by PTSD.
Other groups of refugees also report past experiences of trauma, coupled
with loneliness and isolation once arriving in a country of transit or reset-
tlement. They must constantly confront social, economic, cultural, and le-
gal barriers when settling outside their country of origin. Moreover, they
suffer from feelings of guilt, mistrust, shame, and helplessness, exacerbat-
ing the harmful impact of suffered trauma on their mental health.66
Recurrent exposure to discrimination can erode self-esteem, disrupt
identity development, and increase levels of shame and emotional vulner-
ability, ultimately leaving the individual more susceptible to the effects of
other traumatic stressors on mental health.67 Any of these symptoms
may diminish a claimants capacity to effectively testify at a refugee-
status determination proceeding. Moreover, unlike racial, ethnic, reli-
gious, and political groups, sexual minorities remain largely invisible in
their communities because they conceal their sexual orientation as a way
61 See Berg & Millbank, supra note 3 at 196; Ariel Shidlo & Joanne Ahola, Mental Health
Challenges of LGBT Forced Migrants 42 Forced Migration Review 9 at 9; LaViolette,
RPD Process in Canada, supra note 29 at 2122.
62 Assessment of Credibility in Claims for Refugee Protection, supra note 30 at paras 2.3.2,
2.3.5.
63 Shidlo & Ahola, supra note 61 at 9.
64 See Center for Substance Abuse Treatment, Substance Abuse Treatment: Addressing
the Specific Needs of Women (2009) Treatment Improvement Protocol Series (51) Ap-
pendix E
& Ilan H Meyer, PTSD and Sexual Orientation: An Examination of Criterion A1 and
Non-Criterion A1 Events (2013) 5:2 Psychological Trauma: Theory, Research, Practice,
and Policy 149 at 149.
65 American Psychiatric Association, Diagnostic and statistical manual of mental disor-
ders, 4th ed (Washington, DC: American Psychiatric Association, 1994) at 527.
66 Romy Reading & Lisa R Rubin, Advocacy and Empowerment: Group Therapy for
LGBT Asylum Seekers (2011) 17:2 Traumatology 86 at 87.
67 Ibid.
SAME-SEX RELATIONSHIPS UNDER REFUGEE LAW IN CANADA 545
to evade unwanted attention, creating a zone of shame and exclusion.68
These experiences all constitute contributing factors to PTSD.
Rubin and Reading assert that traditional diagnostic tools to evaluate
mental health do not comprehensively canvass the reoccurring experienc-
es of trauma to which sexual minority refugees have been typically ex-
posed. Indeed, symptoms of PTSD may not manifest following a single
traumatic event in a refugees life. Rather, repeated exposures to homo-
phobic incidentsviolent or notmay trigger cognitive, emotional, and
physiological changes similar to those of PTSD victims, who have been
exposed to serious threats to their life or physical integrity.69
Recounting personal and romantic experiences can prove elusive for
sexual minority refugees afflicted with PTSD.70 For instance, the credibil-
ity of a Ugandan mans gay relationship was impugned under the pretext
that the claimant did not show emotional attachment such that one
would expect of the alleged extended relationship at the RPD hearing.71
According to the adjudicators summary of facts, the claimant was being
sexually intimate with his same-sex partner when seven men attacked
them. He was beaten to the point of unconsciousness and then woke up to
find himself in a hospital. If the decision maker considered the assault to
be a credible experience, then it would have been even more essential to
determine whether the claimant suffered from PTSD.
Indeed, a principal characteristic manifested by PTSD victims, includ-
ing refugee claimants, is disassociation. Hathaway and Hicks state that,
[p]ersons suffering from PTSD often do not exhibit outward signs of
trepidation, but rather dissociate themselves from their reality. It
is widely recognized that dissociation is a central characteristic of
PTSD, and that persons who dissociate are extremely fearful, de-
spite their outward demeanor.72
Consequently, the claimant in the above case might not have exuded an
emotional attachment to his partner at the RPD hearing if he suffered
68 Bobis, supra note 2 at 27.
69 Martin, Alessi & Meyersupra note 64 at 150.
70 For example, three-quarters of refugees in a 2007 study who had suffered traumatic ex-
periences stated they first spoke of them only after arriving in the United Kingdom,
where the study was based. Their reluctance was tied to feelings of shame and fear, and
that, there were things that they had not revealed because in their culture it was con-
sidered wrong to discuss them (Berg & Millbank, supra note 3 at 201).
71 RPD File No TA6-10532, [2008] RPDD 292 (QL) at para 10 (IRB) [RPD File No TA6-
10532].
72 James C Hathaway & William S Hicks, Is There a Subjective Element in the Refugee
Conventions Requirement of Well-Founded Fear? (2005) 26:2 Mich J Intl L 505 at
519.
546 (2015) 60:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
from PTSD since the day of the malicious attack. In addition, recounting
past experiences of harm and future fears in case of return to their coun-
tries of origin may trigger retraumatization.73 In light of these findings,
decision makers should not overlook the impacts of PTSD on sexual mi-
nority refugee claimants testimony, but rather seriously consider the pos-
sibility of PTSD when evaluating the credibility of same-sex relationships.
Sexual minority claimants capacity to testify may also be greatly af-
fected by internalized homophobia. According to Gaines, internalized
homophobia encompasses negative attitudes toward ones own homosexu-
ality, others homosexuality, and the disclosure of ones homosexuality to
others.74 Sexual minorities afflicted with it may intentionally disassociate
themselves from gay- and lesbian-identifying individuals in an effort to
repress, deny, or disavow their same-sex sexual attractions. Herek adds
that internalized homophobia sufferers may devalue non-heterosexual
lifestyles and accept societal stereotypes surrounding homosexuality.75
Further, the Hebrew Immigrant Aid Society (HIAS) found that constant
exposure to hardline homophobic attitudes reinforces internalized homo-
phobia, exacerbating its ramifications on sexual minority refugees.76
Guidelines issued by the American Psychological Association suggest that
struggles with self-esteem, depression, psychosocial and psychological
distress, physical health, intimacy, social support, relationship quality,
and career development are symptomatic of internalized homophobia.77
Sufferers of internalized homophobia may denigrate themselves and
their same-sex relationships. A study conducted on the gay and lesbian
population of Sacramento, for instance, revealed that participants with
higher levels of internalized homophobia exhibited greater demoralization
and lower self-esteem.78 Indeed, the UNHCR SOGI Guidelines rightly
73 See Reading & Rubin, supra note 66 at 88; Shidlo & Ahola, supra note 61 at 9.
74 Stanley O Gaines Jr et al, Cultural Value Orientations, Internalized Homophobia, and
Accommodation Romantic Relationships (2005) 50:1 J Homosexuality 97 at 102.
75 Gregory M Herek et al, Correlates of Internalized Homophobia in a Community Sam-
ple of Lesbians and Gay Men, 2 J Gay & Lesbian Medical Association 1 at 2 [pre-
publication draft].
76 See Yiftach Millo, Invisible in the City: Protection Gaps Facing Sexual Minority Refu-
gees and Asylum Seekers in Urban Ecuador, Ghana, Israel, and Kenya (2002) Hebrew
Immigrant Aid Society Working Paper at 7, online: Hebrew Immigrant Aid Society
City].
77 American Psychological Association, Practice Guidelines for LGB Clients: Guidelines
for Psychological Practice with Lesbian, Gay, and Bisexual Clients online: American
Psychological Association
[APA Guidelines].
78 Herek, supra note 75 at 5.
SAME-SEX RELATIONSHIPS UNDER REFUGEE LAW IN CANADA 547
note that [s]ome [sexual minority refugee claimants] may only be able to
draw upon (derogatory) terms used by the persecutor.79 Accordingly,
though some sexual minorities may have never been able to positively
view and describe their sexual orientation, they are nevertheless expected
to do so during a refugee-status determination hearing.
In some instances, adjudicators have been attuned to the issue of in-
ternalized homophobia in sexual minority refugee cases, particularly
when soliciting testimony about same-sex sexual relationships. In
Gergedava v. Canada (Minister of Citizenship and Immigration), the Fed-
eral Court found it unreasonable for the Board to expect the gay claimant
and his wife to file for divorce. The Court took into consideration that
Georgia is a religiously conservative country, creating a context in which
the claimant would feel ashamed to seek divorce and reveal his true sexu-
al orientation.80
However, Board members in other cases have accorded less im-
portance, if any, to internalized homophobia in their decisions. For exam-
ple, in a 2010 RPD case, the bisexual applicant left his home country of
Jamaica after receiving death threats for having sex with his male part-
ner. Once in Canada, the claimant married a woman, began dating and
cohabitating with another woman, fathered two children, and had two
brief sexual encounters with another man. The claimant, out of shame
and guilt, testified that he was making efforts to overcome his homosex-
uality by seeking counseling to save his heterosexual relationship.81 The
Board stated:
[33] We can only comment on his behaviour since his arrival
in Canada, which, according to his evidence, for the most part is het-
erosexual.
[34] Counsel submits that, should the claimant return to Jamaica,
notwithstanding what has occurred in the interim, he would be per-
ceived as an individual who practices homosexual behaviour. This is
based on the one alleged incident, which gave rise to the extortion
threats and documentary evidence demonstrating homophobic atti-
tudes.
[35] Even if the Board accepts that the claimant is bisexual, in addi-
tion to the aforementioned credibility concerns regarding the claim-
ants delay in filing a refugee claim, we conclude that the claimant
has not rebutted the issue of state protection.82
79 UNHCR SOGI Guidelines, supra note 11 at para 11.
80 2012 FC 957 at para 17, 218 ACWS (3d) 411.
81 RPD File No TA9-14244, [2010] RPDD 198 (RPD) at para 31 (QL).
82 Ibid at paras 33-35.
548 (2015) 60:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
While state protection was the central issue in this case, decision makers
should be alert to the issue of internalized homophobia when membership
in an LGB social group is questioned. In this case, the Board members
written analysis seems to neglect the possibility that in renouncing his
homosexuality, and focusing on his heterosexual relationships the claim-
ant was attempting to downplay his same-sex attractions due to a person-
al sense of internalized homophobia. Berg and Millbank note that disown-
ing ones sexual orientation is considered a mechanism to cope with the
harboured feelings of shame toward ones homosexuality.83 Further, sexu-
al minorities may attempt to maintain visible heterosexual relationships
in order to hide their stigmatized identity and same-sex relationships.84 In
the above case, the Board member should have elicited testimony regard-
ing the reasons the claimant wanted to disavow his same-sex relation-
ships.
Mental health issues affect not only claimants testimony, but also
their demeanor during the hearing, which may damage their credibility.
Canadian guidelines on questioning techniques discourage credibility
findings based on subjective demeanor such as physical appearance yet
allow objective considerations of demeanor like frankness and spontanei-
ty.85 Millbank posits that relying on any elements of demeanor may lead
decision makers to erroneously conclude that claimants are not sexual
minorities. They may struggle to answer questions about their experienc-
es because they suffer feelings of shame, self-hatred … and internalized
homophobia.86 Therefore, sexual minority claimants may avoid bringing
up their sexual acts or feelings of their own volition because in their cul-
ture it was considered wrong to discuss them.87 In a considerable number
of decisions analyzed for this article, sexual minorities recounted that
they experienced traumatic events once their same-sex relationships be-
came known to private or state actors. Such experiences would undoubt-
edly be difficult to recount in the setting of a hearing.
In an effort to address challenges related to mental health issues in
the context of refugee-status determination hearings, the UNHCR Guide-
lines on Gender-Related Persecution canvasses interview practices to
adopt in order to effectively adjudicate a claim involving sexual and gen-
der-based violence. Claimants should be provided the opportunity to
83 Berg & Millbank, supra note 3 at 199.
84 Gloria Jacques, Sexual Minorities in Africa: A Case for Social Work (2013) 25 J Gay &
Lesbian Social Services 158 at 167.
85 Assessment of Credibility in Claims for Refugee Protection, supra note 30 at para 2.3.7.
86 Millbank, The Ring of Truth, supra note 3 at 7.
87 Berg & Millbank, supra note 3 at 201.
SAME-SEX RELATIONSHIPS UNDER REFUGEE LAW IN CANADA 549
choose the gender of the adjudicator conducting the hearing. Adjudicators
should remain neutral, compassionate and objective throughout the
hearing, and should avoid body language or gestures that may be per-
ceived as intimidating or culturally insensitive or inappropriate.88 It is
fundamental to underline that these recommendations should be rigor-
ously applied to both men and women claimants who have faced sexual
violence due to their sexual and social nonconformity.89 The practical ap-
proach proposed by the UNHCR Guidelines on Gender-Related Persecu-
tion would allow claimants to speak honestly and comfortably on their
same-sex relationships during a hearing or interview for refugee protec-
tion.
B. How Hetero Are Refugees Same-Sex Relationships?
Decision makers sometimes fail to recognize the specific challenges of
same-sex couples in continuing their partnerships because they conceptu-
alize relationship formation within a heteronormative paradigm. Heter-
onormativity is defined as the correctness of heterosexual dogmas and
traditional family forms while at the same time censuring, punishing,
medicalizing, and rendering homosexuality invisible in all of its manifes-
tations.90 In heteronormative societies, it is taken for granted by most
people that heterosexuality is right, natural and universal.91 Heterosex-
ism, which is intrinsically linked to heteronormativity, is the ideological
system that denies, denigrates, and stigmatizes any non-heterosexual
form of behavior, identity, relationship, or community.92 It is the chau-
vinistic assumption that heterosexuality as a system of social relations
and practices, such as marriage, is the only and only normal and natural
way to be human.93 Essentially, both heteronormativity and heterosex-
ism depict a society in which heterosexual relationships are largely privi-
leged and normalized while visible displays of same-sex sexuality remain
shrouded by social opprobrium, legal condemnation or both.
Millbank illustrates the impact of heteronormativity to assess refugee
status using the case Gui v. Minister for Immigration and Multicultural
Affairs, in which a gay Chinese mans asylum claim in Australia was re-
88 Guidelines on International Protection: Gender-Related Persecution Within the Context
of Article 1A(2)of the 1951 Convention and/or its 1967 Protocol Relating to the Status of
Refugees , UNHCR, UN Doc HCR/GIP/02/01 (2002) at para 36.
89 See LaViolette, Gender Guidelines, supra note 2 at 214.
90 Jacques, supra note 84 at 160.
91 Ibid.
92 APA Guidelines, supra note 77.
93 Herdt, supra note 43 at 37.
550 (2015) 60:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
fused on the grounds that being kicked and bashed by the police for hav-
ing kissed and cuddled with his male partner in a public park did not
amount to Convention-related persecution.94 In response to the tribunals
reasons, Millbank reaches the following conclusion:
The hegemonic nature of heterosexuality renders cuddling and kiss-
ing not just non-sexual but indeed almost invisible when done by
heterosexual people. This is the opposite when done by a gay or les-
bian couple: it is glaringly visible and sexualised. The words cud-
dling and kissing are in quotation marks in the decisions and the
behaviour is treated as though it were, in fact, sex. The decision
makers accepted that sex in private was not an option for Mr Gui
and his partner because of neighbourhood surveillance. Nonetheless
having romantic physical contact in a park was clearly not an alter-
native the decision makers could countenance.95
In other words, the adjudicators in the Gui case took the position that the
applicant and his partner could have prevented the police violence by re-
fraining from romantic behaviour, an expectation that, arguably, would
not apply to opposite-sex couples in a public space.
Millbanks critique of Gui is important in that same-sex sexual and
romantic expression continue to be viewed with prejudiceas socially re-
pugnant or legally reprehensible compared to heterosexual ones. Howev-
er, even in heteronormative communities, not all forms heterosexual rela-
tionships are equally legitimate. As stated by Eldis:
The debilitating impact of heteronormativity is not confined to those
within the lesbian, gay, bisexual and transgender (LGBT) communi-
ty. . . Single people experience enormous social pressure to marry in
many, if not all, societies. Living alone and pursuing non-
cohabitating sexual relationships, enjoying sex with themselves or
being asexual is not a viable option for people in many contexts. In
some countries extra-marital sex, or adultery, is punishable by
death. In many others those that do not conform can be ostracised.96
The oppression and vilification of certain forms of opposite-sex rela-
tionships surface in many cultural regimes. In India, where marriage
normativity resonates, women engaging in extramarital sex can be fined
94 [1998] FCA 1592 cited in Jenni Millbank, Imagining Otherness: Refugee Claims on the
Basis of Sexuality in Canada and Australia (2002) 26:1 Melbourne UL Rev 144 at 146
[Millbank, Imagining].
95 Ibid at 147.
96 Eldis, Why Does Heteronormativity Matter? online: Eldis
SAME-SEX RELATIONSHIPS UNDER REFUGEE LAW IN CANADA 551
or punished by death.97 In Morocco, two adolescents were found guilty of
public indecency after posting pictures of themselves kissing on Face-
book.98 It is clear that the significance attributed to relationships, hetero-
sexual or not, depends on the social and cultural reality in which they are
placed.
Many societies tend to elevate the importance of opposite-sex relation-
ships that are long-term, monogamous, and grounded in cohabitation and
love. This has been made particularly apparent by relatively recent advo-
cacy for marriage equality in many parts of the world, where activists ar-
gue that same-sex couples will continue to be viewed as second-class citi-
zens if they do not have the legal right to wed. These campaigns are based
on the premise that same-sex couples exhibit the same qualities as oppo-
site-sex couples and are thus entitled to the same legal rights as the lat-
ter. Adjudicators whose views of relationships are partly influenced by
such affirmations may limit the range of relationships they deem credible.
Millbank suggests that many societies emphasize a good and virtuous
image of long-term same-sex relationships in order to downplay the fact
that sexual minorities may engage in sexual activity in public places. As
she explains, [t]he existence of public sex as an expression of gay male
sexuality has often been used to deride and vilify gay men as promiscu-
ous, predatory, unable to form lasting relationships or relate normally, ie
monogamously, in a sexual sense.99 This position may dissuade refugees
from comfortably speaking about their sexual encounters to adjudicators
due to the stigma attached to these experiences. Indeed, they might feel
pressured to recount their relationship experiences in a way that con-
forms to what they perceive to be the decision makers expectations. In do-
ing so, they may struggle to articulate the genuineness of their sexual ori-
entation. A case in point is this testimony from a gay Kenyan seeking ref-
ugee protection in the United States:
97 Even the forms of marital relationships may be strictly regulated. Honour crimes may
occur as a result of: inter-caste marriages, inter-religious marriages, marrying within
the same gotra, pre-marital affairs, extra-marital affairs, same-sex relationships, in-
ter-class marriages (between rich and poor), marriages against parents wishes [and] is-
sues related to land (Immigration and Refugee Board Canada, India: Honour Crimes,
Including their Prevalence in both Rural and Urban Areas: Government Protection and
Services Offered to Victims of Honour Crimes (2009-April 2013) (9 May 2013) online:
Refworld
98 See Lauren ONeil, Teens Arrested for Kissing in Morocco Spark #NadorKiss
Tweetstorm, CBC News (20 November 2013), online:
99 Millbank, Imagining, supra note 94 at 164.
552 (2015) 60:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
Do you have a lover? The asylum case officer probed tactlessly. If
by that he meant whether I had a live-in boyfriend with whom I
slept every night, then I didnt. On the other hand, how could I ex-
plain more casual relationships to the stiff, unsympathetic interro-
gator sitting in front of me? … Was I less of a gay man, by implica-
tion, if I did not have a long-term relationship? If I could be a single
(read closeted) gay man in the United States, couldnt I be the same
in Kenya? If I didnt have a long-term boyfriend was I really out?100
Clearly, some claimants, like this Kenyan man, may worry about how ad-
judicators will perceive their relationships, especially if they are fleeting.
The challenge for refugee status decision makers is to engage with claim-
ants in a way that does not convey expectations that refugees relation-
ships have to conform to a rigid, heteronormative model. Decision makers
in Western countries might hold certain expectations regarding sexual
expression, such as having a lover, which may differ from that of refu-
gees understanding of their own lived experience of sexual expression.
John Hart explores the pressure on sexual minorities to portray their
relationships in a way that conforms to, or resembles the dominant heter-
onormative model.101 He has conducted extensive interviews with Austral-
ian nationals and their same-sex partners who were applying to immi-
grate to Australia under spousal sponsorship programs. In such applica-
tions, immigration officials may put the bona fide quality of the relation-
ship into question. While different than a refugee hearing, this aspect of
an immigration sponsorship application raises similar credibility issues,
since immigration officers may be given the duty of probing the authentic-
ity of same-sex relationships. Hart explores how the process pressured
applicants to present their relationships in conformity with heteronorma-
tive forms and values.
For instance, an Australian woman applying to sponsor her same-sex
partner expressed her frustration with adhering to heterosexual norms. I
feel Ive been expected to be involved in a relationship likened to marriage
whereas Id like to break that mold for a better sort of relationship that
has room for growth and individuality.102 Her partner also felt unfairly
compelled to tailor their relationship to the expectations of the adjudica-
tors:
I feel that the expectations of the Department of Immigration are
basing the elements of a relationship on heterosexual standards and
are trying to validate and contain lesbian and gay relationships in
100 Randazzo, supra note 12 at 46.
101 See John Hart, Stories of Gay and Lesbian Immigration: Together Forever? (New York:
Harrington Park Press, 2002).
102 Ibid at 86.
SAME-SEX RELATIONSHIPS UNDER REFUGEE LAW IN CANADA 553
the same pattern, e.g., living together, lifelong commitment. Sharing
bank accounts, etc., loss of individuality. Does it have to be like this
to be genuine?103
Another participant expressed difficulty in demonstrating interdepend-
ence in his same-sex relationship. The models [relationships] that we
were forced into by the department [of Immigration] caused a lot of stress.
Joint bank accounts, cohabitation, etc. There are other ways to have a re-
lationship! It feeds off and enforces dependency.104 Indeed, the Australian
sponsor does seem to have an obligation to portray her same-sex relation-
ship as mirroring marriage, where partners intertwine most aspects of
their lives. According to Hart, the institution of marriage is heaven sent
because married couples are assumed to demonstrate the ideal relation-
ship for spousal sponsorships.105 While conducted in the context of immi-
gration sponsorship applications, Harts work suggests that heterosexist
models may also be present in the refugee hearing room.
The same concerns can be raised in the context of the Canadian immi-
gration system. In Canada, legally married applicants are able to sponsor
their partners by demonstrating the existence of a bona fide relationship.
But couples without a legally recognized marriage must additionally es-
tablish twelve months of conjugal cohabitation to benefit from the same
sponsorship provisions under the common law partner category.106 Since
same-sex marriages remain scantly recognized around the world,107 sexual
minorities are often compelled to demonstrate this threshold of conjugali-
ty in order to access the same sponsorship benefits as legally wed couples.
The Supreme Court of Canada set out seven characteristics in Mo-
lodowich v. Penttinen to assess whether conjugal relationships mirror
marriage-like ones: cohabitation; sexual and personal behavior; division of
family-type responsibilities; shared social activities; financial interde-
pendence; children; and societal perception.108 These factors were adopted
to assess conjugality for same-sex couples in M. v. H.,109 and have been
103 Ibid.
104 Ibid at 8586.
105 Ibid at 8.
106 See Immigration and Refugee Protection Regulations, SOR/2002-227, s 1(1).
107 Seventeen countries fully recognize same-sex marriage (Netherlands, Belgium, Spain,
Canada, South Africa, Norway, Sweden, Portugal, Iceland, Argentina, Denmark,
France, Brazil, Uruguay, New Zealand, Britain, and Luxembourg, while two partially
do (Mexico and the United States): Freedom to Marry, The Freedom to Marry Interna-
tionally
(November 2014), online:
108 Molodowich v Penttinen (1980), 17 RFL (2d) 376, 2 ACWS (2d) 486 (Ont Dist Ct).
109 [1999] 2 SCR 3 at para 59, 171 DLR (4th) 577 [M v H].
554 (2015) 60:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
cited in appeals of spousal sponsorship applications for binational cou-
ples.110
The justices in M. v. H. adopted the Molodowich factors to argue that
LGB couples can establish the same level of spousal codependence as het-
erosexual married couples. However, LGB refugees living in persecutory
environments cannot reasonably maintain relationships that match the
Molodowich factors. For instance, cohabitation with a person of the same
sex will simply not be possible in many countries for fear of discrimina-
tion. Moreover, relationships are likely to be clandestine rather than con-
ducted in a way that is visible to others. To conceal a relationship, LGB
couples may in fact deliberately avoid sharing family-type responsibilities
or creating financial interdependence. Admittedly, Canadian courts have
supported a flexible interpretation of the concept of conjugality, giving
particular consideration to the cultural context of the relationship.111
Nonetheless, the underlying concern in spousal sponsorships determina-
tions remains unchanged; courts still question whether the relationship
between the sponsor and sponsored person resembles a marriage.112 Ca-
nadian immigration officials expect that the [conjugal] couple has come
to a similar point as that of a married couple.113
Unlike the Canadian spousal sponsorship immigration context, refugee case law
does not explicitly state that claimants relationships are credible only if they are mar-
riage-like. Nonetheless, adjudicators who hear appeals in spousal sponsorship applica-
tions are also members of the RPD.114 This overlap raises the question of the extent to
which the notion of conjugality in immigration law may influence credibility assess-
ments in refugee hearings where LGB claimants must describe their personal and in-
timate relationships.
110 See e.g. Dalumay v Canada (Minister of Citizenship and Immigration), 2012 FC 1179 at
para 29, 221 ACWS (3d) 972. See also Keo v Canada (Minister of Citizenship and Immi-
gration), 2011 FC 1456 at para 20, 215 ACWS (3d) 493.
111 M v H, supra note 109 at para 60.
112 See Canada (Minister of Citizenship and Immigration) v Morel, 2012 FC 1404 at para
13, 422 FTR.288.
113 Citizenship and Immigration Canada, Overseas Processing Manual (OP), Chapter OP 2,
Processing Members of the Family Class (14 November 2006) at 20, online:
114 Before the enactment of the Balanced Refugee Reform Act (BRRA) in 2012, RPD board
members were Governor-in-Council appointees and could therefore transfer to or be
transferred from other divisions of the IRB such as the IAD. Since the BRRAs coming
into force, RPD decision makers are appointed under the Public Service Employment
Act, and therefore work strictly in the RPD. Nevertheless, the extent to which RPD de-
cision makers have previous experience working with the IAD, as well as exposure to
casework in other divisions, might certainly influence their credibility assessments.
See Immigration and Refugee Board of Canada, Part III Reports on Plans and Priori-
ties 2012-2013 Estimates at 6, online:
SAME-SEX RELATIONSHIPS UNDER REFUGEE LAW IN CANADA 555
For example, in the 2008 RPD case previously mentioned, the adjudi-
cator raised plausibility concerns regarding the applicants relationship
with his gay lover in Uganda. The claimant testified that their relation-
ship lasted from 1987 until 2006, when a group of men assaulted them af-
ter they were discovered being intimate on a beach. Since the assault, the
applicant stated that he had only tried to phone his partner once, in order
to see if he was alive. The analysis states that he was fearful that his
calls might be used to track me down.115 The Board found the gay appli-
cants personal story dubious because once in Canada, where he was safe,
he did not persist in trying to locate his partner. The Board concluded:
In this panels mind, an individual who was involved in a long term
relationship of this nature, if it actually existed, would have been
concerned for the safety and welfare of their partner. In this case,
the claimant did not show emotional attachment such that one
would expect of the alleged extended relationship. Nor was he able
to provide physical proof of the existence of the relationship. Thus,
the Panel is not persuaded that the claimant was engaged in a long
term sexual relationship with XXXXX, in Uganda.116
The Federal Court, in assessing the merits of the RPDs decision, ruled:
I am not at all convinced that the basic human emotions of love and
compassion for another are widely different in Canada than in
Uganda. In my view, it is reasonable for the Board to question
whether this 20 year relationship existed when the applicant showed
so little concern for his lover. The applicants evidence was that he
made only one attempt to contact his lover of 20 years after a beat-
ing that had left him unconscious. In those circumstances it is possi-
ble that Godfrey was severely injured or dead, yet the applicant
made no efforts to find out his condition or even whether his long
term lover was alive. I find that this lack of concern raises serious is-
sues as to the credibility of the applicant and the Boards finding
that there was no such relationship was reasonable.117
In this decision, the RPD and Federal Court rooted their findings in the
assumption that had the applicant felt a sincere emotional bond toward
his partner he would have overcome his fear of danger and made efforts to
contact him. This assumption obscures the reality that the development of
such attachmentsregardless of the longevity of their partnershipsmay
not be possible in countries such as Uganda, where state and societal
homophobia are endemic. Moreover, basic human emotions of love and
115 RPD File No TA6-10532, supra note 71 at para 10.
116 Ibid.
117 Kyambadde v Canada (Minister of Citizenship and Immigration), 2008 FC 1307 at para
10, 337 FTR 93.
556 (2015) 60:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
compassion may not be as universal as the Federal Courts decision sug-
gests.
While refugee claimants may perceive their long-term relationships to
be legitimate expressions of love for and commitment to their partners,
they do not usually enjoy societal and legal recognition of their relation-
ships in their countries of origin. Consequently, they cannot characterize
their relationships using traditional milestones such as engagements and
marriage.118 Couples may consequently counter these limitations by creat-
ing personal, and unique forms of relationship markers. This conduct has
been described as ambiguous commitment, seeing as many same-sex re-
lationships are not defined by concrete start and end points, reciprocal ob-
ligations, or by acknowledgement from family and community mem-
bers.119 Therefore, adjudicators must critically assess their personal
viewsand potential prejudicesregarding relationship development, in
order to appreciate refugees diverse experiences of being in same-sex re-
lationships.
Focusing on relationship length could result in the presumption that
longstanding same-sex couples ultimately desire to have their relation-
ships mirror opposite-sex ones. This belief could lead an adjudicator to
question the credibility of sexual minorities who have not exhibited a
marriage-like relationship with their long-term partners. If adjudicators
do not adapt the indicators used to assess partnerships, refugee claim-
ants long-term relationships might be discredited simply because they do
not reflect the level of commitment and compassion presumed to be ideal
for married couples.
C. Cross-Cultural Considerations of Same-Sex Relationships
This section contemplates whether claimants cultural background is
intrinsically linked to their understanding of relationship development.
Case law is presented to illustrate potential scenarios where cross-
cultural considerations of relationships should be addressed in the adjudi-
cators questioning and written assessment.
Gill Valentine contends that in the face of weakening social ties, and
the decoupling of behaviors associated with marriage and family, tradi-
tional forms of close, personal relations in Western societies are being re-
placed. Increasingly, people are seeking pure relationships, in which
118 Wen-Yi Shieh, Gay and Lesbian Couple Relationship Commitment in Taiwan: A Pre-
liminary Study (2010) 57:10 J Homosexuality 1334 at 1336.
119 Gilbert Herdt & Robert Kertzner, I Do, but I Cant: The Impact of Marriage Denial on
the Mental Health and Sexual Citizenship of Lesbians and Gay Men in the United
States (2006) 3:1 Sexuality Research & Social Policy 33 at 40.
SAME-SEX RELATIONSHIPS UNDER REFUGEE LAW IN CANADA 557
people maintain relationships solely on the basis of happiness and volun-
tary commitment, rather than societal or religious pressure. The dis-
course around relationships has a greater focus on love and intimacy,
which means that individuals who feel unsatisfied by this aspect of their
relationship may be less willing to sustain them.120
However, this viewpoint should not be applied ubiquitously. Herdt
states that the traits of biological innateness, sexual exclusivity of erotic
behavior, lifelong adherence to same-gender relations … are very difficult
to identify outside of the western tradition.121 In some cultures, relation-
ship longevity may not be a reliable indicator of emotional commitment.
For instance, a survey taken by Taiwanese gays and lesbians reveals that
there is an indirect correlation between the sense of love or care that re-
spondents felt they were receiving from their partners and their level of
commitment to their relationship. The authors of this study pointed to
specific cultural values that could explain this finding: Taiwanese society
generally upholds maxims such as no gain without pain or tolerance is
a virtue.122 In other words, intimate partners do not necessarily need to
gain love, care, or social status from partners to feel satisfied with their
relationships.
Collectivism and individualism can greatly shape cultural conceptual-
izations of love and intimacy in the context of opposite-sex and same-sex
couples. According to Dion and Dion, long-term relationships in individu-
alistic societies such as the United States and Canada, where personal
autonomy, self-realization, individual initiative, and decision making
prevail, romantic love plays a salient role in partners satisfaction.123 By
contrast, collectivistic societies such as China and Japan are character-
ized principally by a sense of personal identity based on ones place in
ones group, a belief in the superiority of group compared to individual de-
cisions.124
Moreover, the wishes of others, notably ones parents, strongly influ-
ence ones choice of marital partner in collectivist societies. The authors
go as far as to suggest that adopting romantic love as the ground for mar-
120 Gill Valentine, Globalizing Intimacy: The Role of Information and Communication
(2006) 34:1/2 Womens Studies Quarterly 365 at 366.
121 Herdt, supra note 43 at 46.
122 Wen-Yi, supra note 118 at 1346.
123 Karen K Dion & Kenneth L Dion, Individualistic and Collectivistic Perspectives on
Gender and the Cultural Context of Love and Intimacy (1993) 49:3 J Social Issues 53
at 55, 58.
124 Ibid at 55.
558 (2015) 60:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
riage would create dysfunction in Eastern societies.125 For instance, in
some Hindu communities of India, families tend to be suspicious of, and
resist love marriages of all kinds not just cross-caste, cross-class, cross-
religion or international marriages, but even eminently suitable mar-
riages that they themselves might have arranged.126 In this respect, fami-
ly approval may factor more heavily in forming marital unions than the
love that partners show for each other.
Senegal provides another example of a country where partners may
not necessarily express romantic affection in order to further their rela-
tionships. In Senegal, homosexual men will call themselves either yauss
or oubi, depending on their sexual role. Yauss may give money to the oubi
after having sex, as a way to underscore the seriousness of their relation-
ship. This monetary proposal is a cornerstone in Senegalese traditions; a
man offers money or gifts to a woman to show that their relationship is
progressing far enough to possibly become marital. In this case, same-sex
relationships may mirror gender normative ones.127
Additionally, South African customary law recognizes women who en-
ter into marriages with other women, and who in turn, engage in sexual
intercourse with men to bear children. In such a case, the widows defunct
husband would be recognized as the father of these children.128 Customary
same-sex marriages may also include female traditional healers, known
as sangoma, who take wives for the purpose of healing ceremonies, as well
as possible sexual activity.129 In these cases, romance and happiness are
not pivotal to maintain relationships.
Identities based on sexuality can also be culturally construed. Inter-
views conducted by the HIAS illustrate the diversity of sexuality among
sexual minority refugee populations in Ghana and Kenya. It reports the
following:
During interviews [with sexual minority refugees] in Ghana, the
terms gay or homosexual were almost never mentioned. In Nairobi,
four participants presenting as males referred to themselves as fe-
males in the questionnaire, three participants referred to themselves
as female and gay, and one stated his sexual orientation a lesbian,
125 Ibid at 59.
126 Ruth Vanita, Same-sex weddings, Hindu traditions and modern India (2009) 91 Fem-
inist Review 47 at 48.
127 Herdt, supra note 43 at 224.
128 Elsje Bonthuys, Possibilities Forelosed: The Civil Union Act and Gay and Lesbian
Identity in South Africa (2008) 11:6 Sexualities 726 at 730.
129 Ibid at 731.
SAME-SEX RELATIONSHIPS UNDER REFUGEE LAW IN CANADA 559
although he has been in a relationship with a male partner for many
years, and identifies himself as male.130
This citation demonstrates that in non-Western cultures, sexual minori-
ties may not always adopt a gay, lesbian, or bisexual identity, despite
their same-sex sexual behaviour. However, this disjunction between sex-
ual behavior and identity does not lessen their need for protection as ref-
ugees fearing persecution. Avoiding preconceived notions of sexual identi-
ty is paramount in multicultural and multinational settings such as the
refugee status determination hearing, because claimants may not intui-
tively link their same-sex relationships to an LGB identity.131
Indeed, Canadian adjudicators may become confused when claimants
refer to themselves or their partners with epithets unfamiliar to the adju-
dicators personal understanding of sexual identity. In Ndowku v. Canada
(Minister of Citizenship and Immigration), the Federal Court agreed that
the Board should disbelieve that the claimant had a same-sex partner in
Nigeria named Kenneth. After the claimant testified that his girlfriend
told him of his fathers death, his counsel asked him to clarify whether he
was referring to his gay friend or girlfriend; the claimant responded the
latter. The Board concluded that the claimants assertion that his girl-
friend and not gay friend had reported his fathers death to him meant
that his gay lover did not exist.132 Since the Board gave the claimant sev-
eral opportunities to clarify to whom he was referring to by girlfriend,
and without objection of interpretation by counsel, the Federal Court
found no breach in procedural fairness.133
Partner identity in Nigeria may be more nuanced than either the RPD
or Federal Court imagine. According to Pierce, the development of an
identity based on sexuality stems from more than sexual orientation and
gender, but also relies heavily on ones education, age, and economic sta-
tus.134 Yan daudueffeminate, poor, and relatively uneducated men
130 Millo, Invisible in the City, supra note 76 at 19.
131 Even in Western societies, sexual activity may be incongruous with sexual identity. A
study cited by Rehaag reported that two-thirds of the female respondents who had sex
with other women within a five-year period also stated having had sex with men. A sim-
ilar proportion of straight male participants declared having engaged in same-sex sexu-
al activity. See Rehaag, supra note 24 at 8485 citing Lisa M Diamond, Was It a
Phase? Young Womens Relinquishment of Lesbian/Bisexual Identities over a 5-Year
Period (2003) 84 Journal of Personality and Social Psychology 352 at 353.
132 Ndowku v Canada (Minister of Citizenship and Immigration), 2013 FC 22, FCJ No 40
(QL) at para 35.
133 Ibid at para 42.
134 Steven Pierce, Identity Performance and Secrecy: Gendered Life and the Modern in
Northern Nigeria (2007) 33:3 Feminist Studies 539 at 548.
560 (2015) 60:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
may refer to themselves and other yan daudu as women.135 In a romantic
relationship, they would refer to their partners as kawa (girlfriend) rather
than aboki (male friend).136 In the Ndowku decision, the region from
which the applicant arrived is not stated, so the research conducted by
Pierce might not be entirely applicable. Nonetheless, Ndowku makes it
clear that claimants cultural frame of reference for their partners may
not match with the decision makers. Adjudicators must be conscious of
how cultural constructions of identity can easily lead to misunderstand-
ings when confronted with non-Western norms. The UNHCR SOGI
Guidelines state that [n]ot all applicants will self-identify with the
LGBTI [lesbian, gay, bisexual, transgender, intersex] terminology and
constructs as presented above or may be unaware of these labels.137 This
consideration should be extended to terminology and constructed related
to partner identity.
In light of these findings, adjudicators should avoid conflating cultur-
ally defined values like love and commitment when assessing the genu-
ineness of refugees same-sex or opposite-sex relationships. This is espe-
cially important when research on cultural interpretations of sexual iden-
tity and relationship development is unavailable to decision makers. In-
ferences on what values emanate from the disposition of refugee claim-
ants partnerships should be made with caution.
D. Implausibility Findings Regarding Existence or Absence of Same-Sex
Relationships
1.
Implausibility of Same-Sex Relationships in Countries of Origin
This section examines the challenges of providing testimony and ad-
ducing evidence of same-sex relationships that Board members will deem
plausible. It begins with a brief explanation of plausibility under Canadi-
an Refugee law, followed by an introduction of the Cass model of identity,
which may support decision makers mindsets on relationship formation.
While this section focuses on plausibility, claimants mental health, cul-
ture, and personal sense of relationship development, provide sound rea-
sons for limiting adverse plausibility findings.
Board members of the Refugee Protection Division are entitled to
make reasonable findings based on implausibility, common sense and ra-
tionality, and may reject evidence if it is not consistent with the probabili-
135 Ibid at 549.
136 Ibid at 547.
137 UNHCR SOGI Guidelines, supra note 11 at para 11.
SAME-SEX RELATIONSHIPS UNDER REFUGEE LAW IN CANADA 561
ties affecting the case as a whole.138 While these conclusions on plausibil-
ity are allowed, decision makers might infer that in a heavily homophobic
society, LGB individuals are less likely to associate and form emotional,
intimate bonds. In Dosmakova v. Canada (Minister of Immigration and
Citizenship), the lesbian applicant from Kazakhstan was asked how she
felt about her same-sex attractions and lesbian relationship; she testified
that she felt happiness and sexually satisfied, that she was happy about
it and had no regrets.139 The Board reasoned that given the negative atti-
tudes toward homosexuality in her home country, if she were moving
from a heterosexual to a homosexual relationship, it would be reasonable
to expect that she would express some misgiving with respect to her ini-
tial feelings.140 The Federal Court of Canada overruled the decision based
on a complete lack of evidence to defend the Board members speculation.
More commonly, Canadian tribunals have made inferences regarding
sexual minorities behavior rather than feelings toward their relation-
ships. In Jackson v. Canada (Minister of Citizenship and Immigration),
the Board found it implausible that the applicant would hug his same-sex
partner in public when he was aware of the social stigmas and laws pro-
scribing homosexuality in Nigeria.141 In a 2006 RPD case, the Board
doubted that the Ukrainian lesbian applicant would have shared her ro-
mantic feelings toward a female friend at a public event, their graduation
dance, despite widespread repression of homosexuality.142 Furthermore,
the Board disbelieved that she would have subsequently attempted to
date two other women in light of the intense homophobia in Ukraine.143
As Millbank puts it, this findingthat bisexuals would only attempt three
or less same-sex relationships in their countries of originis based purely
on speculation and holds no objective foundation.144
The Staged-Identity Model, first developed by Australian psychologist
Viviane Cass in 1979, may in part explain the ways in which adjudicators
think about sexuality and evaluate evidence of same-sex relationships
such as feelings related to sexual identity development, as in Dosmakova,
or interactions with other sexual minorities, such as those discussed in
138 Assessment of Credibility in Claims for Refugee Protection, supra note 30 at para 2.3.5.
139 Dosmakova v Canada (Minister of Citizenship and Immigration), 2007 FC 1357 at para
11, 68 Imm LR (3d) 89.
140 Ibid.
141 See Jackson v Canada (Minister of Citizenship and Immigration), 2012 FC 1098 at para
15, 45 Admin LR (5th) 27. See also RPD File No TB1-01931 (12 April 2012) (RPD) (QL)
at para 8.
142 Re ERY [2006] RPDD 270 (QL) at para 5 (IRB).
143 Ibid.
144 Millbank, The Ring of Truth, supra note 3 at 21.
562 (2015) 60:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
Jackson. The model outlines six phases which sexual minorities go
through in developing their non-heterosexual identity.145 These stages are
Identity Confusion, Identity Comparison, Identity Tolerance, Identity Ac-
ceptance, Identity Pride, and Identity Synthesis.
In the initial stage, Identity Confusion, an individual becomes aware
for the first time that homosexuality may define his or her thoughts, feel-
ings, or behaviors, and may begin to question heterosexuality.146 Inner
turmoil, self-loathing, and personal alienation are common characteristics
of Identity Confusion,147 so individuals may show reluctance to engage in
romantic physical contact with others of the same gender.148 For example,
in the case of Dosmakova, described above, the Board Member may have
believed that sexual minorities who come to realize their sexual orienta-
tion will initially react as someone described in the Identity Confusion
stage would. In the claimants case, she expressed positive feelings about
first realizing her same-sex attractions, which falls outside the scope the
Cass models first stage.
Moreover, sexual minorities willingness to associate and develop rela-
tionships may not be as linear and sequential as the Cass model suggests.
Following Identity Confusion, is stage two, Identity Comparison, during
which individuals may accept an LGB identity and begin to confront feel-
ings of otherness and social alienation.149 Some individuals view their
sexual identity positively and are therefore further inclined to embrace it.
Others may reject their LGB identity, claiming that homosexual thoughts
and behaviors are only temporary and can be altered.150 At this stage, in-
dividuals questioning their sexuality may seek out contact with sexual
minorities to feel less alienated.151 Some may have even had their first
same-sex sexual experience, but may consider it an isolated incident and
145 See Berg & Millbank, supra note 3 at 206207; Suzanne Degges-White, Barbara Rice &
Jane E Myers, Revisiting Cass Theory of Sexual Identity Formation: A Study of Lesbi-
an Development (2000) 22:4 J Mental Health Counseling 318 at 318; Vivienne C Cass,
Homosexual Identity Formation: Testing a Theoretical Model (1984) 20:2 J Sex Re-
search 143 at 147.
146 Ibid.
147 See Sean A Halpin & Michael W Allen, Changes in Psychosocial Well-Being during
Stages of Gay Identity Development (2004) 47:2 J Homosexuality 109 at 111; Degges-
White, Rice & Myers, supra note 145 at 319.
148 See Eric M Dub, The Role of Sexual Behavior in Gay and Bisexual Men (2000) 37:2
The Journal of Sex Research 123 at 126.
149 Cass, supra note 145 at 151.
150 Degges-White, Rice & Myers, supra note 145 at 319.
151 Cass, supra note 145 at 151.
SAME-SEX RELATIONSHIPS UNDER REFUGEE LAW IN CANADA 563
continue to label themselves as heterosexual.152 This cohort may therefore
continue to pursue opposite-sex relationships as a way to repress or con-
ceal their attractions to people of the same gender.153 In Jackson, the deci-
sion maker may have made an adverse credibility finding on the claim-
ants relationship because the claimant did not attempt to conceal it, as
would be expected of someone in the early stages of the Cass identity
model.
If decision makers continue to rely on rigid interpretations of sexual
identity like the Cass model, as was the case in Dosmakova and Jackson,
it is of critical importance to recognize that the model cannot canvass the
development and expression of sexuality of all sexual minorities. In a
structured interview case study using the Cass model to explain identity
development among lesbians, Degges states that some respondents went
directly from Identity Comparison to Identity Acceptance.154 In other
words, the women who first identified as lesbian at a young age did so out
of a self-perception of being different, rather than out of sexual feelings
toward other women. These women may have justified their need for self-
acceptance as a sexual minority before reaching out for community sup-
port. Similar results in studies on gay and bisexual men have found that
some will adopt a non-heterosexual identity without having had previous
same-sex sexual relationships.155 It is therefore quite possible that just as
that of participants in Degges study, LGB refugees identity development
will diverge from the linear model proposed by Cass.
2.
Implausibility of No Same-Sex Relationships in Canada
Plausibility concerns regarding relationship formation is not re-
strained to the context of refugees countries of nationalitythe analysis
extends to refugees behavior in Canada. Sexual minorities are assumed
to be at ease in embracing and expressing their sexual identity once ar-
rived in Canada. In cases, therefore, where applicants appear well settled,
adjudicators might question their knowledge and activities surrounding
LGB lifestyles in Canada, which can involve frequenting bars and night-
clubs, joining community groups, and reading magazines geared toward
gays, lesbians, and bisexuals.156 Furthermore, sexual adjudicators may in-
vestigate whether same-sex relationships have been developed in Canada.
Failure to have current or former sexual partners in Canada provide an
152 Degges-White, Rice & Myers, supra note 145 at 319.
153 See Dub, supra note 148 at 126.
154 Degges-White, Rice & Myers, supra note 145 at 328.
155 See Dub, supra note 148 at 12324.
156 See Millbank, The Ring of Truth, supra note 3 at 18; Rehaag, supra note 24 at 7273.
564 (2015) 60:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
affidavit or viva voce testimony has contributed, in some cases, to a nega-
tive finding on the issue of membership in an LGB social group.157
The latter phases of the Cass model may help illuminate to the deci-
sion makers mindsets when assessing refugees same-sex relationships in
Canada. According to the third stage of development, Identity Tolerance,
individuals will seek out contact with other gays and lesbians to fulfill so-
cial, emotional, and sexual desires.158 However, they may differentiate be-
tween bonds with sexual minorities that they view as necessary, rather
than cherished.159 Positive or negative contact with sexual minorities may
further promote or hinder the development of their non-heterosexual
identity.
In the fourth stage, Identity Acceptance, individuals will seek oppor-
tunities to be in contact with other sexual minorities. Gay culture be-
comes more important to individuals as they create friendships with other
sexual minorities,160 and deepen their understanding of both their person-
al and perceived identity.161 Lastly, individuals will begin to strongly con-
template adopting and expressing a sexual minority identity in the public
sphere.162
In the next stage, Identity Pride, individuals will begin to view their
sexual minority identity positively, deepen their understanding of their
sexuality, and harmonize their private and public identities. Therefore,
individuals at this stage will not only feel comfortable revealing to others
that they are sexual minorities,163 but also, may openly confront issues of
social recognition and equality for LGB communities.164 Ones sense of
group identitythat is, his or her voluntary association with other sexual
minorities, is very strong. 165
In the final stage, Identity Synthesis, sexual minorities may regard
their sexual orientation as only one facet of their overall identity. At this
157 See Mbirimujo v Canada (Minister of Citizenship and Immigration), 2013 FC 553 at
para 6, 433 FTR 145; Kamburona v Canada (Minister of Citizenship and Immigration),
2013 FC 701 at para 14, 435 FTR 132.
158 Cass, supra note 145 at 151.
159 Ibid.
160 Ibid.
161 Degges-White, Rice & Myers, supra note 145 at 320.
162 See Heather Adams & Layli Phillips, Ethnic Related Variations from the Cass Model
of Homosexual Identity Formation: The Experiences of Two-Spirit, Lesbian and Gay
Native Americans (2009) 56:7 Journal of Homosexuality 959 at 961.
163 Berg & Millbank, supra note 3 at 207.
164 Cass, supra note 145 at 152.
165 Degges-White, Rice & Myers, supra note 145 at 320.
SAME-SEX RELATIONSHIPS UNDER REFUGEE LAW IN CANADA 565
stage, sexual minorities will find ways to integrate their private and pub-
lic sexual aspects of self.166 It is in the final stages of identity development
that sexual minorities overcome societal stigmatization of non-
heterosexual intimacy and may thus develop romantic relationships with
the same gender, according to the Cass model.167
Decision makers appear willing to recognize that not all sexual minor-
ities will make their sexuality public after arriving in Canada. In Menaj v.
Canada (Minister of Citizenship and Immigration), the Board concluded
that the applicant was not gay because he was too shy to engage in con-
sensual sex with other men.168 Justice Mandamin of the Federal Court, re-
jecting the RPDs reasoning, stated that:
The Board appears to have applied, for lack of a better term, the
North American perspective to assessing the Applicants behaviour
when the Board speaks of going to a gay club and engaging in
sexual relations with any man. The Board does not take into
consideration the difference in how homosexuality may be viewed in
Albania as opposed to Canada.169
Similarly, the Board member in Essa v. Canada (Citizenship and Immi-
gration) found that the applicant, who had already been living in Canada
for 15 years, could not be gay because he did not go out in Montreals gay
district.170 The applicant explained that he was a private individual who
was discreet about his sexuality, even though the applicant testified that
he had had a gay relationship in Jordan.171 The Federal Court overturned
the decision, stating that the Board relied on assumptions about homo-
sexual behavior when reaching its conclusion. Likewise, in Latsabidze v.
Canada172 and Kornienko v. Canada,173 Justice Barnes of the Federal
Court overruled two decisions by the same Board member for inappropri-
ately stereotyping gay men as invariably sexually promiscuous.174 The
166 Cass, supra note 145 at 15253.
167 See Dub, supra note 148 at 125.
168 2008 FC 611, 72 Imm LR (3d) 293.
169 Ibid at para 17.
170 Essa v Canada (Minister of Citizenship and Immigration), 2011 FC 1493, 3 Imm LR
(4th) 162.
171 Ibid at para 18.
172 Latsabidze v Canada (Minister of Citizenship and Immigration), 2012 FC 1429, 422
FTR 157 [Latsabidze].
173 Kornienko v Canada (Minister of Citizenship and Immigration), 2012 FC 1419, 223
ACWS (3d) 856 [Kornienko].
174 See Latsabidze, supra note 172 at para 2.
566 (2015) 60:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
Board had reasoned that the claimants could not be gay because they had
not actively sought same-sex sexual encounters in Canada.175
In Houshan v. Canada (Minister of Citizenship and Immigration),
however, testimony of the Syrian claimants sexual lifestyle in Canada
was key to establishing his sexual identitylargely because he had testi-
fied wanting to come to Canada to live as an openly gay man in the Per-
sonal Information Form (PIF) submitted upon arrival. However, he had
not had any same-sex relationships or joined any gay organizations since.
The Federal Court upheld the Boards adverse credibility finding:
In short, there was no evidence that he was living in an openly gay
lifestyle as he had claimed he wanted to do in his PIF, despite hav-
ing been in Canada for several years. This was a serious contradic-
tion and given the deference owed to the Board on findings of fact,
this was sufficient to justify the Boards negative credibility finding.
Given the applicants statements, I do not find that the Board im-
posed any stereotypical views of gay lifestyle on the applicant.176
The opinion held in Houshan also appeared in an RPD case of the same
year involving a bisexual man from Mali:
[T]he panel asked how the claimant acts on this attraction. He an-
swered that he does not act on it. The panel is of the opinion that the
claimants behaviour is inconsistent and implausible if he is tru-
ly bisexual in a country (Canada or the United States, as applicable)
where he is free to live as such. As a result, his credibility is under-
mined.177
The decision makers reasoning in Houshan and the Malian case raises
two issues. First, the court opines that an openly gay lifestyle necessarily
involves having gay relationships, joining gay organizations, and attend-
ing gay establishments. Yet for the claimant in Houshan, an openly gay
lifestyle may be experienced differently. Second, it seems that to the
court, expressing a desire to pursue an openly gay lifestyle in Canada
means that the claimant should have reached a state of self-pride and
confidence, seeing as he had lived in Canada for several years by the hear-
ing date. While this conclusion is supported by the Cass model, it is clear
to see how this may be an unfair expectation.
The case of an Albanian gay claimant also offers a persuasive example
of how a lack of same-sex relationship history in Canada can contribute to
175 See ibid; Kornienko supra note 173 at para 3.
176 2010 FC 650 at para 17, 190 ACWS (3d) 239. See also Magradze v Canada (Minister of
Citizenship and Immigration), 2006 FC 20 at para 7,145 ACWS (3d) 899 (in which the
Federal Court found it reasonable that the Board concluded it was implausible that the
claimant would not take more active steps to pursue his lifestyle once in Canada).
177 RPD File No TA8-19538, supra note 45 at para 6.
SAME-SEX RELATIONSHIPS UNDER REFUGEE LAW IN CANADA 567
negative plausibility determinations. The Board stated that, The claim-
ants claim is based on his alleged sexual orientation. The onus is on the
claimant to satisfy the panel that he has and was following his desires in
that type of lifestyle. The panel finds that he has not done so.178 The
claimants legal representative pointed out to the Board that heterosexual
claimants would not be compelled to submit evidence of opposite-sex rela-
tionships for a claim. The Board responded by stating:
[t]he panel finds that the claim is not based on sexual orientation
and in this case, the integral issue is whether the claimant has met
his onus in establishing his identity and persecution suffered due to
that in his country and has acted accordingly to fulfill those desires
in an open society in Canada.179
It appears that for the Board, the decision turned on whether the claim-
ant pursued that type of lifestyle in Albania and Canada, and not neces-
sarily whether the claimant was a sexual minority. Similar to the analysis
in Houshan, the decision maker refers to a homosexual lifestyle. However,
unlike Houshan, the Albanian claimant did participate in gay organiza-
tions and pride parades, yet the Board member concluded that since he
did not explore having a relationship in the community in a country,
which is open to the concept, he did not carry out a bona fide homosexual
lifestyle.180
Canada has earned a reputation of guaranteeing core human rights
for sexual minorities. Direct and indirect discrimination against sexual
minorities is prohibited based on Canadas human rights legislation.181
Therefore, it may not be surprising that decision makers in refugee-status
determination expect that bona fide LGB refugees, once in Canada, would
have experiences of same-sex relationships resembling the final stages of
the Cass model. However, the considerations previously outlined must be
taken into account when judging refugees volition to seek same-sex rela-
tionships after arrival to Canada. Refugee claimants may not openly ex-
press their sexuality nor desire same-sex partners as they may continue
178 Re NVJ [2007] RPDD 125 (QL) at para 12 (IRB).
179 Ibid at para 15.
180 Ibid at para 23.
181 See e.g. Charter of human rights and freedoms, CQLR c C-12, s 10. See also Egan v
Canada, [1995] 2 SCR 513, 124 DLR (4th) 609, judgments of Cory J, Iacobucci J,
LHeureux-Dub J, and McLachlin J; Vriend v Alberta, [1998] 1 SCR 493, 156 DLR
(4th) 385 (declaring sexual orientation a prohibited ground in Albertas human rights
legislation); Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11,
[2013] 1 SCR 467 (holding that anti-gay speech in flyers distributed by a Christian ac-
tivist is not protected by the Charter, violating the purpose of preventing discrimination
embedded in Saskatchewans human rights legislation).
568 (2015) 60:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
to suffer from PTSD182 or major depression due to the traumatic experi-
ences faced in their home countries due to their sexual orientation. Be-
coming comfortable enough to accept and express same-sex sexuality may
take several years or more after arriving in an asylum country.183 Though
in Canada, refugees may have little to no community support to help
them overcome mental health challenges. Reoccurring accounts of socie-
tal, religious, and state discrimination negatively impact sexual minori-
ties adaptive coping skills, self-esteem, and identity development.184
The intersection of claimants gender, sexual orientation, and socioec-
onomic status, among other factors, plays a critical role in defining their
experience once arrived in Canada. Immigrants and refugees tend to
gravitate toward communities sharing their ethnic, cultural, linguistic,
and religious backgrounds. Such communities in Canada may be just as
disapproving of openly-identifying LGB refugees as the communities in
their countries of origin. Sexual minorities living in these areas, therefore,
may continue to hide their sexual orientation in order to be afforded
community acceptance.185 Significantly, many sexual minority refugees
arrive in receiving countries alone, and may not have been able or willing
to seek out other sexual minorities who share a similar background.
Moreover, refugees often come with limited finances, making socializing
in gay-frequented venues unlikely. Naturally, some refugees may not en-
joy going out to bars and clubs.186 There is no doubt that many refugees
confront the hardships of poverty and racial exclusion after arriving to
Canada.187 Therefore, when adjudicators form expectations on the life-
styles of sexual minority refugees, they must take into consideration the
intersections of gender, sexual orientation, socioeconomic status, and lin-
guistic background, among other considerations. Failing to do so will like-
ly produce a seriously limited and obscured analysis.
Significantly, the Protecting Canadas Immigration System Act, which
came into force in December 2012, imposes a 30 to 60 day time limit for
refugee claimants to prepare for their hearing, depending on whether
their claim is lodged at the Canadian border or inland and whether the
182 See Heartland Alliance, Rainbow Response: A Practical Guide to Resettling LGBT
Refugees and Asylees at 47, online: Rainbow Welcome Initiative,
183 See Shidlo & Ahola, supra note 61 at 9.
184 See Reading & Rubin, supra note 66 at 8788.
185 Randazzo, supra note 12 at 40.
186 Millbank, The Ring of Truth, supra note 3 at 19.
187 See e.g. Sharalyn Jordan & Chris Morrissey, On What Grounds? LGBT Asylum
Claims in Canada (2013) 42 Forced Migration Review at 14.
SAME-SEX RELATIONSHIPS UNDER REFUGEE LAW IN CANADA 569
claimants come from a country designated by the Minister of Citizenship
and Immigration as safe.188 Various stakeholders in civil society have
strongly criticized this legislation for a number of reasons that go beyond
the scope of this article. For sexual minority claimants who have not yet
overcome the psychosocial barriers to accepting their sexual identity, the
truncated time limit poses the impossible challenge of preparing a coher-
ent verbal testimony in an extremely limited time frame.189 It is therefore
imperative to take a closer look at adjudication practices, and to ensure
that decision makers refrain from relying on Western narratives of sexual
minority lifestylesincluding evidence of same-sex relationshipswhen
determining refugee status.
III. Recommendations
Sexual and intimate relationships, while being important elements of
a credibility assessment for refugee claims based sexual orientation, must
be analyzed with diligence and sensitivity. The following recommenda-
tions are relevant to adjudicating claims based on sexual orientation be-
cause, as Part I of this article suggests, there may be a strong correlation
between credibility of same-sex relationships and credibility of sexual ori-
entation.
LGB individuals may suffer from mental health conditions like PTSD
and internalized homophobia, which in turn, explains why they may
struggle to convey their relationships as loving and compassionate to ad-
judicators at the RPD hearing. Decision makers should make efforts to
avoid triggering trauma and feelings of shame in the claimant. Reference
to useful adjudicative tools like the UNHCR Guidelines on Gender-
Related Persecution should be considered.
Decision makers should also be cognizant that there is no global model
illustrating the complex relationship between sexual identity and sexual
behavior. Without societal recognition of the love shared with their part-
ners, sexual minorities have resorted to their own, personal ways of eluci-
dating their relationships bonds and milestones. As LaViolette maintains,
individuals sexual orientation and gender identity are characterized
based on their country of origin, gender, culture, social class, education,
religion, family background and socialization.190 As such, refugees may
not articulate their identities and same-sex relationships in terms match-
ing decision makers personal notions of sexuality.
188 IRPA, supra note 6, s 111.1(1); Immigration and Refugee Protection Regulations, SOR
2002-227 s 159(1).
189 Jordan & Morrissey, supra note 187 at 13.
190 LaViolette, RPD Process in Canada, supra note 29 at 24.
570 (2015) 60:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
Unfortunately, not enough research is available on the various ways
by which same-sex relationships develop across cultures. Many of the spe-
cific examples I have cited relating to sexual minorities and their rela-
tionships, were based on studies derived from Western countries, which
may fall short of providing a comprehensive depiction of non-Western cul-
tural norms. Sexual minorities in countries with harsh living conditions
for them may not feel comfortable or safe enough to speak about their re-
lationships to researchers. At the very least, decision makers must re-
main sensitive to cultural interpretations of relationships, and be con-
scious of the tendency to assess them based on personal beliefs on what
constitutes genuine relationships.
Millbank makes several recommendations to improve credibility as-
sessments of refugee claims made by sexual minorities. She notes that
credibility guides in most countries focus on reaching negative credibility
assessments, rather than highlighting factors that support positive credi-
bility. She advises against fast-tracking adjudication and instead rec-
ommends adopting the UNHCRs benefit of doubt standard191 as well as
the presumption of truthfulness in Canadian jurisprudence.192 These
standards for credibility assessments are an appropriate response to the
issues outlined in this article because they embrace the diversity of forms
same-sex relationships can take.
Plausibility findings concerning claimants relationships should be
made cautiously. This article has referred to case law and academic litera-
ture to assert that the perceived level of societal acceptance of sexual mi-
norities should not influence the assessment of how likely it is that claim-
ants will enter into same-sex partnerships. Decision makers should not
assume that sexual minorities in homophobic countries are totally devoid
of the volition to have same-sex sexual and intimate partners. Nor should
they assume that they are willing to have them after arriving in Canada.
The Stage-Identity Model by Viviane Cass might accurately reflect the
experiences of many sexual minorities in accepting their sexual identity
and being in relationships. Evaluating same-sex relationships in accord-
ance with the Cass model, however, can lead to persistent doubts as to
191 Millbank, The Ring of Truth, supra note 3 at 24. See also UNHCR Handbook, supra
note 10 at para 203:
After the applicant has made a genuine effort to substantiate his story there
may still be a lack of evidence for some of his statements … it is hardly possi-
ble for a refugee to prove every part of his case and, indeed, if this were a re-
quirement the majority of refugees would not be recognized. It is therefore
frequently necessary to give the applicant the benefit of the doubt.
192 See Maldonado, supra note 28.
SAME-SEX RELATIONSHIPS UNDER REFUGEE LAW IN CANADA 571
whether those who are genuinely in need of refugee protection are indeed
sexual minorities.
Decision makers would benefit from resorting to open-ended questions
when soliciting testimony about claimants relationships. This approach
canvasses a wider spectrum of experiences of sexuality, allowing claim-
ants to testify about their experiences with their partners without pres-
sure to conform to decision makers potentially prejudiced expectations. It
follows that closed-ended questions on personal and partner identity as
well as sexual conduct should be avoided. Adjudicators should reflect on
their own assumptions of how relationships grow, recognizing that same-
sex couples might construe their relationships differently than those of
opposite-sex couples due to their sexual orientation as well as their cul-
tural background.
Finally, claimants should be asked what type of lifestyle they ulti-
mately desire to lead. By repositioning sexual minority claims as gender
claimsfocusing on persecution on account of noncompliance to tradi-
tional gender roles rather than pigeonholing sexual identities and rela-
tionshipsadjudicators can unravel deeply-held beliefs related to heter-
onormative and culturally constructed understandings of sexuality. This
broadened approach would create a sounder, fairer adjudication process
and refugee protection system.
Conclusion
This article has explored the significance of testimony of same-sex re-
lationships raised by sexual minorities, for the purpose of having the ref-
ugee definition apply to them. In spite of certain methodological limita-
tions, the trends presented in this article reveal a strong link between
claimants credibility of same-sex sexual and romantic experiences, and
their membership in an LGB social group. Based on these findings, the
challenges pertaining to testifying about same-sex relationships and as-
sessing their veracity have been raised and explored. This exploration has
illustrated how decision-makers knowledge and cultural framework of
sexual orientation may pose significant obstacles for refugee claimants
required to demonstrate believable testimony of same-sex relationships.
The challenge for decision makers is to overcome mutable inferences re-
lated to sexual minorities lifestyles. This could allow and empower claim-
ants to better articulate their personal narratives and experiences, draw-
ing from their emotional, sexual, and romantic attractions for people of
the same gender.
