Long wait is cause of frustration for Caribbean LGBTQ refugee claimants

El-Farouk is an immigration and refugee lawyer in Toronto, Canada. Photo contributed

Craig Cromwell is the refugee settlement coordinator at the Black Coalition for AIDS Prevention (Black CAP) in Toronto. Photo contributed

Long wait is cause of frustration for Caribbean LGBT refugee claimants

By Neil Armstrong

Several LGBTQ refugee protection claimants from the Caribbean, Africa and elsewhere, who have been in Canada since 2011 and 2012 feel that their lives are at standstill because of changes to the refugee system, which became effective in December 2012.

As a result of those changes introduced by the Stephen Harper-led government, claimants in Canada before December 15, 2012 -- known as legacy claims -- have been waiting for 5 or 4 years for a hearing from the Immigration and Refugee Board of Canada (IRB).

The IRB is an independent administrative tribunal that makes decisions on immigration and refugee matters. It decides who is a convention refugee or a person in need of protection.

“The IRB’s capacity to resolve legacy Refugee Protection Division (RPD) claims has been impacted by a growing intake of new refugee protection claims, which must be scheduled for a hearing within legislated time limits (30, 45 or 60 days from referral)‎. New referrals increased by 22%, going from 13,200 in 2014-15 to 17,000 in 2015-16,” says Anna Pape, senior communications advisor at IRB.

She notes that RPD legacy claims, which were referred before December 15, 2012, are not subject to legislated time limits and are scheduled as capacity allows. There were just under 5,800 RPD legacy claims as of the end of August 2016.

LEGACY CLAIMANTS TALK ABOUT THEIR SITUATION

Steve, Rayan P., and Josephine – all pseudonyms – all Jamaicans, and Tamia Namakula of Uganda are among these legacy claims whose lives are being affected by the uncertainty of their situation.

Another claimant from St. Kitts and Nevis said he felt extremely frustrated and that his life is now in a limbo.

Steve, 35, came here from Jamaica in April 2012 and has been waiting for a hearing since November 30 of that year.

He says a hearing was scheduled for January 20 this year, but on the eve of that date his lawyer called and told him that the IRB had postponed the hearing, noting that when a new date is announced they will let him know.

Steve says he spoke to the registrar at IRB twice and the head of a department told him that they are “bringing back all the old members and they’re retraining them, along with the new ones, so that by November they can start having hearings for persons with legacy cases.

She could not guarantee which batch his hearing would be in and noted that they only have 15 rooms and accommodate 30 hearings each day, he said.

“It’s extreme pressure. There are times I feel depressed, knowing that you’ve been here 4 years and you’ve started to establish yourself and you don’t know if Canada is going to say yes or is going to say no. When I got the date for January I was so excited. Having to go back and relive all that ordeal that happened to me in Jamaica on the day of the hearing, when I got the news that it was postponed, to be honest, I felt suicidal.”

He said fear crept in his mind that he might have to go back to Jamaica and face the homophobia he escaped from there.

His doctor has diagnosed him with Post-Traumatic Stress Disorder (PTSD) and he has been taking medication and attended counseling for it.

Steve said there are many who want to pursue education and employment opportunities but because they do not have the proper landed documents they are “barred from doing a lot of things that you would really want to do.”

There is also the concern that all of his documents will expire in June 2017 and there is a 3-month requirement of IRB for claimants to re-submit them.

They have to apply for a work permit annually which takes 41 days if done online, and 120 days by regular post, he said.

He also said refugee claimants have to apply for their social insurance number annually and there are certain basic medications that are not covered by the Interim Federal Health Program (IFHP) anymore.

IFHP provides limited, temporary coverage of health-care benefits to protected persons, including resettled refugees, refuge claimants, and certain other groups who are not eligible for provincial or territorial health insurance.

Rayan P., 28, came to Canada from Jamaica on September 7, 2012, and filed for refugee status one week later.

He said since the new refugee claim system came into place he has not heard much about his case except the repeated message that there is no budget and he has to wait.

“So basically, we’re just waiting, waiting, waiting and nothing has been done.”

Initially, Rayan P. thought being designated a legacy case meant his would be given priority but after waiting for 4 years, he feels disrespected.

“Basically, it is unfair I’ll say as well, because we’ve been here much longer than a lot of the people who have come into the country and are now settled as convention refugees. They have gone on to permanent resident status, now looking to apply for their citizenship.”

Rayan P. said persons who came into Canada long after he and others “are now progressing faster than us who have been here for so long contributing to the Canadian economy.”

He wants to study political science or law to pursue a legal or political career but said it is stressful for him because he does not have the means to do so as he is still a refugee claimant.

The only option that is available to legacy case claimants, he said, is to find a job paying minimum wage or a little above it to contribute to the Canadian economy by paying taxes.

“For me, personally, that has caused depression, stress, and thinking about certain things that I’ve never thought about for the majority of my life.”

He said the fear of living in Jamaica as a gay man is constantly on his mind and he has nightmares frequently about the possibility of being sent back.

Josephine, 52, also a Jamaican who came to Canada in 2012, says she is stressed and depressed and the uncertainty of her situation is causing a bit of anguish.

“You start your life, you have a job, you make roots; you lost everything back home so there’s nothing to go home to -- nothing at all, no home, nothing – and you’ve built this life. Back home you had a good job and circumstances, family and other people, you have to flee.”

Josephine said the uncertainty of her future here is “eating” her alive and causing nightmares.

Even though she has settled, started a life and has a job, she says there is no comfort for her and she feels stagnant.

Equipped with a postsecondary degree, Josephine wants to pursue another one, however, she cannot act on it because of her predicament.

Working in the social service system and watching the news, she has seen other people come in after her who have gotten their “permanent residency and health cards as they come.”

“It depresses you and you feel helpless. You feel like you’re in this void. You’re jealous but you’re also grateful that the other person get through.”

As a social worker, some of these people are her clients and she is happy for them but “inside you’re dying because you’re saying look at this, they’re going back to school, they’re buying cars, they’re buying houses and you’re just here, opportunities pass you by and I’m not getting younger.”

As a result of this, suicidal thoughts have crossed her mind and Josephine had to see a psychologist and psychiatrist, and has been on anti-depressants, anxiety, and high blood pressure medication.

She is also HIV-positive and said this kind of stress caused by an “unknown” future is not good for her health.

As a survivor of sexual abuse she has developed a phobia for nighttime and so cannot access services that are only available from some agencies at night.

In August 2012, Namakula, 27, of Kampala, Uganda arrived here and filed to become a refugee claimant.

“I received a hearing in 2014 but it was postponed. From that day I’ve never got any hearing dates,” she says, noting that her lawyer said the reason given for the postponement was that there was no member to attend to her file on that day.

Namakula said she went to adult school but when she was finished she could not go on to university or college because she needs to be a permanent resident or to be a convention refugee to get in.

She said her family in Uganda did not like her because of her sexual orientation and being a Muslim, it was really hard for her. She had to move from her community.

“I had to move to the north part of Uganda where, literally, no one knew me to hide,” she says, because the police were looking for her in her old community in central Kampala.

“News was spreading, like in newspapers, so it was getting worse, that’s why when I got a chance to come here I came immediately.”

The Black Coalition for AIDS Prevention (Black CAP), The 519, Access Alliance, and the Canadian Centre for Victims of Torture have support programs for LGBTQ refugee claimants.

“In my country it was very hard to find the same person in a similar situation like you. So when you go in those groups you get people in the same situation and if they’re from the same country you feel at home,” said Namakula.

She said since the refugee rules changed she has seen many people come from her country and different countries who get their hearings and can move on.

“Right now, if you don’t have papers it’s very hard to move on. It’s very hard to do so many stuff when you don’t have even papers at all,” said Namakula who works on contract as a customer service representative.

A REFUGEE AND IMMIGRATION LAWYER SHARES HIS PERSPECTIVE

El-Farouk Khaki is a Canadian refugee and immigration lawyer who represents many of these legacy cases.

He says it’s like IRB has allocated no resources to the hearing of these cases.

“The new system that came in, in December of 2012, was supposed to be supposedly expeditious and efficient and so on and so forth, except I have cases that were postponed two years ago and have not been rescheduled, and that’s in the new system. And we can’t get them on the schedule. That’s the new system, it’s not even the legacy file.”

Khaki said a lot of times, IRB will postpone a hearing and “they’ll say there is no member available or they’ll say there’s no security certificate, we haven’t received a security certificate and so we’re postponing the hearing, and they don’t give us the new date.”

He said those ones that they don’t give him a new date for they don’t bother rescheduling them.

“So they have a whole slew of cases in the new system that are also backlogged and these are not the legacy files, these are actually in the system right now. And that also includes a lot of Caribbean cases.”

The lawyer said a significant part of his practice is Caribbean clients -- a major part of the Caribbean cases are Jamaican.

About 30-40% of Khaki’s client base is Caribbean and of this, about 50% is Jamaican.

“And, of course, the Caribbean cases are usually almost all of them are either sexual orientation or gender-based, so LGBT people or women fleeing some kind of domestic violence situation. Out of Jamaica, it’s mostly sexual orientation. Out of my Jamaican cases, I would say 98-95% are sexual orientation and only 5 or 10% are domestic violence-related,” he said.

Khaki said there is nothing much that he can do to reassure his clients and noted that there are clients waiting since 2011 for their hearing and there is nothing that he can tell them.

“Because anytime we make contact with the refugee board to schedule a hearing, they say we’ll get back to you when we have the resources to schedule them. So, basically, my clients are in complete limbo. I have a few 2011 cases and a whole bunch of 2012 cases that are still waiting.”

Khaki said legacy cases claimants have the recourse of a federal court judicial review if they want to appeal a decision of the IRB.

The new refugee appeal division is not available to the legacy file.

IRB SAYS IT DECIDED 1,950 LEGACY CLAIMS IN 2015-2016

Pape said as of September 2015, the RPD was fully staffed for the first time with a total of 94 funded public servant decision-maker positions.

In addition, the Immigration and Refugee Board (IRB) was able to reallocate funds internally earlier this year to increase the total number of RPD decision makers to 113. This will permit the hearing of approximately ‎17,500 new refugee protection claims within the legislated time limits.

“However, given the rising intake over the past year and ongoing resource constraints, there is also a pending inventory of new system intake (new referrals, Refugee Appeal Division and Federal Court returns) of about 12,400 cases, of which 7000 are in excess of a healthy rolling inventory,” she said.

Pape said the IRB initiated a staffing process to create an inventory of public servant RPD decision-makers who can be hired, when resources permit, to deal with both the pending inventory of new system intake (new referrals, Refugee Appeal Division and Federal Court returns) and legacy claims.

She noted that despite limited capacity and growing new intake, through the introduction of expedited processes and other strategies, in 2015-16, the RPD decided approximately 1,950 legacy claims and 13,440 new intake claims.

“In 2015-16, more than half of all new system cases decided were finalized within 3 months. The IRB recognizes the importance of timely processing and appreciates the difficulties this situation can present for legacy claimants,” she said.

CANADIAN COUNCIL FOR REFUGEES MAKES RECOMMENDATIONS

Meanwhile, the Canadian Council for Refugees (CCR) is recommending the regularization of legacy claimants.

It recommends that a regulatory class be created for legacy claimants, that legacy claimants be landed if they apply and meet minimum requirements (e.g. they have worked for at least 6 months or have been in some form of education for at least 6 months in Canada), and that applicants for this class not be required to withdraw their claims.

Khaki completely agrees with all of the recommendations of the council.

“There’s this expression ‘justice delayed is justice denied.’ We talk about that within the criminal justice or other areas but what about these people who are like stuck in a limbo and don’t know…and the danger of some of these cases too is the circumstances. Somebody who has been here four years, five years and things change back home, then these people that have been here in a limbo and then they have their hearings and they’re like that situation no longer exist, you can go back, or it’s been 4 years since you left and sorry the guy who you were scared of, your ex-husband or your ex-partner has maybe given up and now has moved on, so we don’t think that you have anything to be afraid of anymore.”

“It’s shameful and it’s kind of sad for these folk,” he said.

The lawyer said the Liberals promised to revisit and to remedy the deficiencies in the system and to actually roll back on some of the more oppressive aspects of the legislations that were put into place by the previous government.

“And while there has been some movement, it’s not been enough, and one of the things to fall through the cracks is the legacy files. What do you tell people who have been here for five years as to when their hearing is going to be? I’ve had people who have all sorts of degrees and qualifications who are completely stuck, not able to move forward with their lives in anyway because nobody wants to give somebody a job if they don’t know they’re going to be here.”

He knows of people who have been offered jobs and have to go for training in the US but they can’t travel so “it’s really an oppressive place to be in right now – this limbo.”

Khaki said maybe the Liberal government can allocate some resources to having these cases heard or what CCR has recommended which would actually clear a large part of that backlog of people.

He said one of those recommendations about people working for a certain period being qualified is not always possible when people only have a temporary permit to be able to actually get a job.

He has heard from people that they are applying for jobs but nobody wants to give them a job or the kinds of jobs they get are crappy, cash jobs or pay minimum wage.

A REFUGEE SETTLEMENT WORKER SEES THE FRUSTRATION OFTEN

In the meantime, Craig Cromwell, refugee settlement coordinator at Black CAP, guesstimates that he has about 70 clients who are legacy cases, most of whom are from the Caribbean.

“They just really frustrated. Their lives are at a standstill, whether it’s going to school to further education or finding long term employment. They don’t qualify for OSAP [Ontario Student Assistance Program], there’s many different opportunities, whether it is employment or education – they’re just ineligible to apply.”

He said many have settled and made a life for themselves and are working but it is very frustrating.

Cromwell said most of the legacy cases claimants are pretty settled so they don’t have a lot of a needs but they will check in to let him know how they’re doing with school, work, or moving somewhere.

He said many of them give back a lot to Black CAP and if they need to see a counselor about their mental health he can refer them to the culturally appropriate counseling services.

“They talk about their frustration with me when they do see me. Some of them have actually approached Black CAP to see what Black CAP could do in support of them but we’re kind of limited.”

He said Black CAP gets the same information that his clients get when they call IRB, “that Immigration Canada is saying that we need more money from the federal government to deal with this backlog. As of now, the federal government is not giving us any more money to deal with it.”

Cromwell said the situation of legacy cases has not been highlighted and it appears that they are like the forgotten group of immigrants.

There is the feeling among some that a lot of money has been invested in other refugee communities yet there is this group of asylum seekers, especially from the LGBT community, that is forgotten.

Meanwhile, on October 12, the Canadian HIV/AIDS Legal Network will present “One Love: LGBTI Rights in Jamaica,” a conversation with three leading activists in the struggle for LGBT rights.

Bishop Christopher Senyonjo of Uganda, author of “In Defense of All God’s Children” whose efforts are chronicled in the film, "God Loves Uganda,” Dane Lewis, executive director of Jamaica Forum for Lesbians, All-Sexuals and Gays (J-FLAG), and Maurice Tomlinson, senior policy analyst of the Legal Network will join in a dialogue moderated by veteran World Report, CBC Radio host, Marcia Young. 

The event will be held in the Bram and Bluma Appel Salon at the Toronto Reference Library, 789 Yonge St. from 7:00-8:30 p.m.

It is free but registration is required at http://aidslaw.nationbuilder.com/onelovelgbtirights.