Sexual Orientation and the Refugee Determination Process: Questioning a Claimant About Their Membership in the Particular Social Group (2004)

Abstract

For many years now, gay men and lesbians have been granted asylum in Canada on the ground that they face persecution as sexual minorities. In 1993, the Supreme Court of Canada, in Canada (Attorney-General) v. Ward, concluded, in obiter, that sexual orientation can constitute the basis of a particular social group. Ever since, a majority of gay and lesbian refugees have claimed that their fear of persecution is grounded on their membership in a particular social group, one constituted by individuals with the same sexual orientation as their own.

Given that gay men and lesbians claim to be members of a particular social group, one of the elements to be satisfied in a refugee claim based on sexual orientation will be the claimant's membership in that particular social group. Assessing the veracity of the claimant's homosexuality is a very difficult, sensitive and complex task in the context of an administrative or quasi-judicial hearing. In particular, the very private and intimate nature of an individual’s sexual orientation poses real challenges for decision-makers who are nonetheless required to engage with claimants about their personal lives and relationships.

Outlined in this document is a suggested approach to questioning a claimant about their sexual orientation. The purpose of this model is to provided decision-makers with a range of issues that they may explore with a claimant when it is determined that membership in a particular social group is an issue to be determined in the refugee claim.

Only the questioning model is included in this version. The legal issues are more fully canvassed in later papers, also posted on the SSRN.

Keywords: LGBT refugees, sexual orientation, refugee law, sexual minorities