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Immigration and Refugee Board of Canada guidelines on cases involving sexual orientation and gender identity and expression

Immigration and Refugee Board of Canada guidelines on cases involving sexual orientation and gender identity and expression

1.1 The purpose of this Guideline is to promote greater understanding of cases involving sexual orientation and gender identity and expression (SOGIE) and the harm individuals may face due to their non-conformity with socially accepted SOGIE norms. This Guideline addresses the particular challenges individuals with diverse SOGIE may face in presenting their cases before the Immigration and Refugee Board of Canada (IRB) and establishes guiding principles for decision-makers in adjudicating cases involving SOGIE.

1.2 This Guideline applies to all four divisions of the IRB, namely, the Immigration Division (ID), the Immigration Appeal Division (IAD), the Refugee Protection Division (RPD), and the Refugee Appeal Division (RAD).

1.3 This Guideline applies to decision-makers and other IRB personnel who are involved in the processing or adjudication of cases before the Board.

1.4 This Guideline provides guidance on the following themes:

  1. Understanding the unique challenges faced by individuals with diverse SOGIE in presenting evidence pertaining to SOGIE;
  2. Using appropriate terminology and language in both proceedings and reasons for decision when referring to individuals with diverse SOGIE;
  3. Protecting sensitive information in reasons for decision;
  4. Avoiding stereotyping and inappropriate assumptions when making findings of fact;
  5. Assessing credibility; and
  6. Increasing awareness of circumstances unique to individuals with diverse SOGIE that may affect findings of fact and findings of mixed fact and law in each of the four divisions.

Hat tip to colleague Ali Bandegani for highlighting these. There are also other IRB guidelines which may be of interest available here, for example on gender, children and other issues. The website says about the guidelines:

The Chairperson’s Guidelines provide guiding principles for adjudicating and managing cases. They serve primarily as source of guidance for decision-makers, but also for the personnel supporting adjudicative functions. They may have an adjudicative or an operational content. While they are not mandatory, decision-makers are expected to apply them or provide a reasoned justification for not doing so. Within the IRB, Guidelines have generally been employed to achieve strategic objectives, as opposed to simply managing daily operations. The Immigration and Refugee Protection Act, in s. 159(1)(h), provides statutory authority for the Guidelines.

There is no directly equivalent statutory basis in the UK, but it would nevertheless be good to see some similar materials developed for judges in this jurisdiction. The gender guidelines, which were excellent, were in effect killed off some years ago. Yet there are a series of very good judicial “bench books“, including on equal treatment, which are used in the courts but are, as far as I know, not used in or adapted for the immigration tribunal.

Source: Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression – Immigration and Refugee Board of Canada

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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