e-4268 (Citizenship and immigration)

Consistent with its obligations under international conventions to which it is a party, including the 1951 Convention Relating to the Status of Refugees and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Government of Canada is committed to providing protection to persons who have a well-founded fear of persecution or are at risk of torture, or cruel or unusual punishment in their home countries.

The In-Canada Asylum Program is grounded in Canada’s international legal obligations and its national law, including the Canadian Charter of Rights and Freedoms and the Immigration and Refugee Protection Act (IRPA), which enshrines Canada’s commitment “to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada’s respect for the human rights and fundamental freedoms of all human beings” (outlined in paragraph 3(2)(e) of IRPA). Individuals fleeing persecution for reasons related to their sexual orientation, gender identity, gender expression, or sex characteristics (SOGIESC) can already qualify as refugees under the 1951 Convention, specifically as members of a particular social group. In addition to being a reason for persecution under the Convention, SOGIESC can also be an added layer of vulnerability for refugees who fled due to persecution under other grounds.

As part of the In-Canada Asylum Program for people making refugee protection claims from within Canada or at a port of entry, the Immigration and Refugee Board (IRB), the administrative tribunal responsible for determining refugee status, takes into consideration the need for protection from persecution in the individual’s country of origin, including for reasons based on sexual orientation and gender identity and expression. In Canada, asylum was first granted on the basis of persecution as a result of sexual orientation in 1991 and gender identity and expression in 2000.

Unless subsequently abandoned or withdrawn, the IRB hears and decides all claims that are referred to it by Immigration, Refugees and Citizenship Canada (IRCC) or the Canada Border Services Agency (CBSA). This includes claims submitted by transgender and non-binary individuals. Claims are determined by an independent decision maker, based on the law, jurisprudence and the evidence before them. Before granting refugee status, IRB decision makers must determine that a claimant is not able to access protection from their country of origin, and that the claimant does not have a viable and reasonable place elsewhere in their country of origin where they might live free from risk.

In 2017, the IRB implemented the Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, later revised in late 2021. The Guideline provides decision makers with a set of principles to follow in cases involving claimants with, or who are perceived to have, sexual orientations, gender identities and expressions and sex characteristics that do not conform to socially accepted norms in a particular cultural environment. This Guideline addresses the difficulties that many SOGIESC individuals claiming asylum face because they do not fit with normative sociocultural views surrounding sexuality, gender identities and gender expressions, and the impact this has on presenting their case. It also has a specific section for trans and intersex individuals. The Chairperson’s Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board, initially implemented in 1993 and most recently revised in mid 2022, also indicates that "Gender-based violence refers to violence based on gender norms and unequal power dynamics, perpetrated against someone based on their gender, gender expression, gender identity, or perceived gender."

The IRB established a Gender-related Task Force (GRTF) in 2020, with specialized and trained decision makers to hear and decide gender-related refugee claims, including SOGIESC claims. The GRTF ensures the respectful, trauma-informed, and consistent adjudication of gender-related claims. Claims are assigned to members on the GRTF based on claim-type and are determined based on evidence, the specific merits of the claim, and in accordance with the law. The IRB also ensures its decision makers receive in-depth practical training, which leverages best practices on trauma-informed adjudication, and regularly reviews its guidelines.

Beyond the in-Canada asylum system, in the refugee resettlement context, IRCC relies primarily on the United Nations Refugee Agency (UNHCR), as well as other recognized referral organizations and private sponsors to identify and refer individuals in need of resettlement, including those who have been persecuted on the basis of their SOGIESC. As announced on June 8, 2023, Canada will be partnering with Rainbow Railroad, an organization based in Canada and the United States that focuses on advocacy and helping LGBTQI+ individuals who seek safe haven from state-sponsored or enabled violence, to refer LGBTQI+ refugees under the Government-Assisted Refugees Program. This new partnership will help increase the number of LGBTQI+ refugees and their families being resettled to Canada overall as it will be in addition to the LGBTQI+ refugees referred by the UNHCR. This will also provide an example for other resettlement countries who are seeking to provide additional protection for the LGBTQI+ community.

Canada also supports LGBTQI+ refugees through the Rainbow Refugee Assistance Partnership, a program which assists Canadians privately sponsoring LGBTQI+ refugees fleeing violence and persecution. In 2019, this partnership was expanded, increasing the number of privately sponsored refugees from 15 to 50 refugees per year between 2020 and 2024. The Government of Canada continues to provide the start-up expenses and three months of income support for each privately sponsored refugee case. The monthly income support for the remaining nine months of the sponsorship is provided by the sponsoring group. This partnership encourages more Canadians to support LGBTQI+ refugees and helps to strengthen collaboration between LGBTQI+ organizations and the refugee settlement community in Canada.