A country to call homo

On May 17 Citizenship And Immigration Canada (CIC) announced an interim policy to recognize same-sex marriages performed in any of the three provincial jurisdictions where they’re currently valid, despite the fact that federal marriage law has yet to catch up.

It was an important step in addressing discrimination against queers in the immigration system, but advocates say there’s still a long way to go. To begin with, CIC only recognizes same-sex marriages performed in Ontario, BC or Quebec – a Netherlands or Massachusetts marriage won’t cut it – and only when one of the spouses is a Canadian citizen.

“For foreign same-sex couples, their legal Canadian marriage is not being recognized. We’re still concerned about that one,” says Peter Bernier of the Lesbian And Gay Immigration Task Force (LEGIT) Toronto. “I don’t know how they can refuse to recognize a legal Canadian marriage. They’ve unboggled half my mind but not the other half.”

“There’s no reason why a person’s nationality should factor into the legitimacy of a same-sex marriage,” concurs lawyer Michael Battista. “None of the three courts of appeal tied the right to any nationality or residence rights.”

But CIC spokesperson Claire Despins says the interim policy is as far as the department can go until the federal government changes the marriage law.

“It’s in the hands of the Supreme Court right now,” says Despins. “We have to wait for their decision. So in this way, we’re very avant-garde.”

Battista says he’s seen a recent increase in the number of couples seeking to immigrate from the US, either where both partners are American or where one is American and the other is a foreign national.

“They seek residency in Canada in order to find recognition of their relationship.” He adds that many such couples have had their faith in Canada shaken when they discover that CIC doesn’t recognize their Canadian marriage.

“How does that make us look internationally when we’re advising foreign clients?” asks Battista. “Our judges are saying one thing but the bureaucracy is saying something different. It gives the impression that the rule of law is quite arbitrary in Canada.”

In April Battista threatened legal action when it became clear that CIC wasn’t processing spousal sponsorship applications based on same-sex marriages. Now he’s repeating the threat over inconsistent documentation requirements.

Battista says he was told by an immigration officer processing one of his clients that the Record Of Solemnization – the document issued at the time of the ceremony – is proof enough that a straight couple has been legally married but that a copy of the official marriage certificate is required from homos, which takes approximately three months after the wedding to be processed.

“I got it right from the mouth of the immigration officer and I’d expect that she’d be the one to know. Either they [CIC] are discriminatory and not being upfront about it or they’re not training their officers very well.”

In a response to a letter from Battista, CIC program specialist Doug Haaland referred to the paperwork obtained at the time of the marriage ceremony as “a souvenir document” and maintained that the “interim policy on same-sex marriages reflects the requirements of heterosexual marriages.”

“This is for all cases, not just same-sex [marriages] that the required document is the marriage certificate,” concurs Despins. “Our guidelines clearly refer to marriage certificates.”

if immigration policy has some sticking points for same-sex couples, refugee policy is a virtual quagmire for queer and trans individuals.

“It’s still uneven in terms of its application,” says Egale Canada’s director of advocacy Laurie Arron. “It’s not clear what level of persecution you have to face and there’s also a problem with evidence. Generally people, when they live in a country where gay, lesbian, bisexual and trans-identified people are persecuted, are not open about their sexuality or gender identity. Their closest friends and family may not know so there’s a difficulty in proving that persecution.”

Arron offers as an example the case of a gay Mexican man, Fernando Enrique Rivera, who was recently denied refugee status and deported after the Immigration And Refugee Board (IRB) member ruled he was not effeminate enough to be a likely victim of discrimination.

“A person should never be expected to hide who they are and live in the closet in order to avoid persecution,” says Arron, likening the situation to a member of a religion being told to renounce their beliefs or avoid going to church. “The fact that we are not a visible minority doesn’t mean our protection should be taken away based on the idea that we can hide who we are.”

“Stereotyping is a dangerous thing to get into in a hearing room,” says lawyer Robert Blanshay, who represented Rivera at his subsequent judicial review. He says IRB members frame it as, “I don’t see the standard attributes that I know to be attributed to that particular social group,” but Blanshay says, “it just doesn’t work like that.

“The justice was visibily concerned,” adds Blanshay. “He actually said in court, ‘Am I supposed to find that [the IRB member] had her gaydar on?'”

Currently the only method of appeal for a failed refugee claimant is a judicial review, in which a Federal Court judge determines, not whether the IRB member came to the right decision, but if there were any legal mistakes along the way.

“I’ve seen decisions where the judge has said, ‘No, this was definitely wrong but there’s no legal error so I’m not going to overturn it,'” says lawyer El-Farouk Khaki.

When the new Immigration And Refugee Protection Act (IRPA) came into effect on Jun 28, 2002, there was one important omission: Although the act provides for the establishment of a Refugee Appeal Division, intended to increase consistency in the system, implementation of the appeal division has been postponed indefinitely.

“Many refugee advocates didn’t yell and scream and holler at changes in the new act because they were given certain carrots,” says Khaki. “[CIC said] ‘Yes, we’ve toughened here and made this more difficult but we’re also opening it up in terms of appeal.’ So the toughening up of the act was conceded to but the carrots that were offered seem to have been puréed and chucked.”

Before June 2002 a refugee claimant could apply for immigration status on the basis of a relationship, but the IRPA removed that option. “In my mind, there’s a disproportionate impact on queers. When you’re looking at straight refugees they come from a wider age range, they come here in families or with spouses and or children. Many queers who come here come from a particular age bracket – late teens to early 40s – and many come here as single people. They are repressed in their own societies, have often had to be secretive [about their relationships]. It’s not unreasonable that waiting in Canada [for their refugee application to be processed] that they would have developed a significant relationship.”

LEGIT also takes issue with the system’s inflexibility, which requires claimants to withdraw their refugee claims and return to their country of origin for their immigration interview.

“As long as they’re successful they are issued the immigration status and can return to Canada,” explains Bernier. “But if not, they face separation from their lover and have lost their refugee application. It’s a problem and we’d rather they didn’t do that. They’re insisting on the interview because it gets them out of Canada. There’s nothing I can find in the law that requires this policy.”

Since 1999 the backlog of refugee cases has been growing, reaching some 56,000 unresolved cases by the end of 2003, the majority of which were waiting with the Toronto office. In an attempt to lighten the load, the IRB began redistributing Toronto’s cases to other offices.

But that redistribution has resulted in discrepancies in acceptance rates across regional offices. In particular, Khaki has noticed the impact of the redistribution on his clients from Mexico who are seeking refugee status on the basis of discrimination because of sexual orientation.

“Mexico being transferred to Vancouver has had a very negative impact on acceptance rates…. Whether that was a bonus or an intent, I don’t know,” says Khaki.

Similar discrepancies exist in cases stemming from other countries, including dramatically lower acceptance rates for El Salvador, Bulgaria, Nigeria and Kenya when processed through the Montreal office versus the Toronto office.

The IRB’s Charles Hawkins says these regional discrepancies may be explained by the way the board has sorted refugee cases for redirection. “Vancouver may receive 100 cases from country X and Montreal might receive 100 cases from country X but they may be totally different types of refugee claims,” says Hawkins.

Overall, Bernier says Canada’s immigration system is “complicated and messy” which makes it difficult for advocates to know for sure what’s going on. “There are two big mountains of immigration law and they’re quite different in a lot of ways,” he says. “It’s quite difficult to know one, let alone knowing both.”

Battista says it’s time CIC “implement their policies quickly in a nondiscriminatory fashion without the necessity of having to threaten legal action.

“Of course, if that’s the only way our rights are going to be recognized equally then we’ll have to do that. Unfortunately, the whole history of gay and lesbian equality in this country has been court driven and it seems that pattern has not been broken.”