Experts say adjudicators assessing gender- and sexuality-based refugee claims often lean on wrongful stereotypes. Photo by Eduardo Lima (CP)
A Canadian Immigration and Refugee Board (IRB) adjudicator who rejected a refugee claim after the claimant said she chose to keep her baby after experiencing rape is no longer with the board, VICE News has learned.Global News first broke the story in February and reported how Sarwanjit Randhawa repeatedly asked a Roma claimant from Hungary to justify why she chose to keep a child after being raped.
“The panel is sensitive to the subject of rape, but the claimant’s explanation does not make sense as to why she would keep a child who would remind her of being raped, unless that is not the case,” reads the April 2019 decision.VICE News obtained the official transcript from the hearing held prior to the decision. During the hearing, Randhawa repeatedly asked why the claimant didn’t get an abortion.“When you say you were raped, did you think of aborting when you found out you were pregnant?” Randhawa asked. “If you’re raped, why would you keep a child of rape?”The Roma woman told Randhawa she kept the child because she doesn’t agree with abortion and the rape wasn’t the baby’s fault.Randhawa also pointed out that at one point the claimant said she was “gang raped” and later said she was raped by two men. “There are differences. I don’t want you to go into it; I just want you to tell me why they are different,” Randhawa said.The adjudicator ultimately rejected the refugee claim after concluding the woman likely wouldn’t face persecution or harm in Hungary. Her decision was overturned after the Federal Court said the woman was deprived of procedural fairness and natural justice, Global reported.The IRB confirmed Randhawa is no longer with the board, but did not say why. It is unknown if Randhawa’s departure is linked to this case.A spokesperson for the board, Anna Pape, said the board is unable to comment on specific cases but said it was “deeply concerned” with the issues raised. Pape also said the board offers mandatory trauma-informed training for refugee adjudicators, and is reviewing how cases involving gender-based violence have been handled.
In a previous statement to VICE News, the board said it was putting together a dedicated team to deal with gender-related claims, and claimants who believe an adjudicator has erred can seek recourse through the Federal Court “as appropriate.”VICE News obtained several of Randhawa’s IRB decisions from 2010 to 2020. In a decision from March 2019, Randhawa was in charge of assessing a gay Filipino man’s request for asylum. While the decision points out inconsistencies in the man’s testimony, including timing delays in his application, Randhawa also determined the man’s sexual orientation was “neither trustworthy nor credible.”To determine whether the claimant was gay, Randhawa asked if the man attended gay pride parades in the Philippines and Toronto or, visited gay communities in Toronto, and if he was familiar with Filipino law as it pertains to gay rights. Randhawa said she didn’t believe the man was gay because he answered no to all of the questions, only expressing awareness of pride and gay parties in the Philippines.In another rejected refugee claim, from February 2019, Randhawa wrote that she didn’t believe it when a Nigerian woman said she was bisexual.The claimant said she continued to live with her husband for some time after she was caught having sex with a woman, which Randhawa found “implausible.” The Nigerian also didn’t have documented evidence of her same-sex relationships. When Randhawa asked if the woman had “any relationships in Canada where one is free to express their sexuality,” the claimant said she didn’t “because her life is full of emotions.”
“The determinative issue is credibility, which shows that, on a balance of probabilities, the claimant is not bisexual,” the decision says.Experts say some of the cases expose imperfections wi-thin Canada’s refugee system, namely, that adjudicators have ample discretion and authority to scrutinize a claimant’s identities—sexual orientation and gender, for example—and related traumatic experiences.Decisions that call into question sexuality are “unfortunately very common,” according to Sean Rehaag, director of York University’s Centre for Refugee Studies.“In the context of sexual minority refugee adjudication in particular, it's hard to imagine what a good credibility assessment in this context looks like,” Rehaag said.According to Rehaag, adjudicators often lean on LGBTQ stereotypes to validate whether someone belongs to the community.“People have ideas about what sexual minority lives look like,” Rehaag said, adding that adjudicators often struggle to believe claimants who say they are LGBTQ if they don’t reflect mainstream assumptions around what it means to be gay, lesbian, queer, or gender fluid.IRB members have been receiving training related to gender and sexual identity since May 1, 2017 when the board introduced comprehensive guidelines, Pape said.“Decision-makers are instructed not to rely on stereotypes or inappropriate assumptions in adjudicating cases,” Pape said, adding that sexuality and gender “may be expressed in both the private and public spheres, an individual's testimony may, in some cases, be the only evidence."
Ryerson University sociology professor and Canada research chair in migration and integration, Anna Triandafyllidou, said the same issues play out all over the world.Studies in Europe show “people have to perform their LGBTQ identity in ways that are expected by the refugee boards of the different countries to gain amnesty,” Triandafyllidou said. “One way is the way you behave: the way you look or talk or whether you go to a pride parade.”She said assumptions can be racialized too.“There are specific expectations of what a North African gay man or Arab LGBTQ should look like,” Triandafyllidou said.Triandafyllidou told VICE News that “gender and sexuality, even religion, are often seen with greater suspicion” and can be harder to judge than cut-and-dry claims in which claimants are fleeing genocide or civil war.Rehaag said the problem doesn’t lie with individual adjudicators, but rather, with the system itself.The stakes are high—often dire—in refugee cases because people are typically fleeing dangerous situations, Rehaag said, and unfortunately, when claimants seek refuge in Canada on the basis of sexual identity, gender-based violence, or religion, it can be hard to test the veracity of their claims.Those cases “often hinge not on documentation, but on testimony,” Rehaag said.In criminal law, for example, offenders still need to be guilty “beyond reasonable doubt” to be sentenced. The bar for refusing refugee claimants is much lower even though adjudicators also have their own implicit biases that likely influence decision-making, Reshaag said.It’s a huge responsibility to place on individual adjudicators, so appropriate oversight needs to be implemented to protect refugee claimants from mistakes, he said.“I would expect the IRB people would have had intercultural training,” Triandafyllidou said. “So the question is whether people get enough legal support to fight a decision and get an appeal, and also how much discretion is given, with what guidance.”The way to do that, Triandafyllidou said, is to provide training that focuses on unconscious bias and helps adjudicators become aware and critical of their own views and prejudice.Follow Anya Zoledziowski on Twitter.