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