A person can seek Convention Refugee status in Canada if they are afraid of persecution in their home country due to their race, religion, nationality, membership in a particular social group or political opinion.
In one of our most recent cases, we assisted the claimant, in claiming refugee protection pursuant to the Immigration and Refugee Protection Act as a Convention Refugee. The applicant identifies as part of the LGBTQIA+ community which is against the law in his home country.
In assessing whether the claimant met the definition of a Convention refugee, the Immigration and Refugee Board of Canada (IRB) made an assessment on the following:
- Credibility of the claimant during the hearing: Although the
hearing was conducted through video conference, the IRB Panel
Member will ask questions of the claimant and any other witnesses
who can speak to the claimant's background, and in this case,
the claimant's membership in the LGBTQIA+ community, and any
fears of persecution. During a credibility assessment by the IRB,
where a claimant affirms to tell the truth, there is a presumption
of truthfulness unless there is a reason to doubt the veracity of
the allegations. The applicant was prepared to answer questions to
verify his identity, establish his sexual orientation and that it
was public knowledge to his community back home and in
Canada.
- Fear of Persecution: The claimant must establish that he or she
has a well-founded fear of persecution by reason of race, religion,
nationality and membership in a particular social group or
political opinion. The IRB cited the Supreme Court of Canada which
held that establishing a fear of persecution is bipartite in nature
– that is – the claimant must subjectively fear
persecution, and this fear must also be well-founded in an
objective sense. The objective test can be met through documentary
evidence. In this case, there was an abundance of evidence
confirming that the government has criminalized same-sex behaviour
and relationships. The Human Rights Watch report confirms that the
police and the public have engaged in torture, violence, arbitrary
detention, kidnapping, and extortion of LGBTQIA+ individuals.
- Whether the home state is an agent of harm or whether internal state protection is offered: If the home country perpetuates the harm and persecution that the claimant is seeking to avoid, then it is more than likely that the IRB will find that there is no state protection for the claimant and that the claimant, if he had to return to the home country, would not have a viable internal flight alternative. This is also a factor that would convince the IRB to grant Convention refugee status.
In a Convention refugee hearing, it is a requirement of the IRB Panel Members to ensure that their questioning of the claimant is done in a non-confrontational and sensitive manner. IRB Panel Members must consider any potential impact of trauma on the claimant's testimony. However, the IRB Panel Member must also balance that role with proper legal assessment of the above-mentioned factors in determining whether a claimant is a Convention refugee.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
