Dear Mr Brown:

I would like to make a refugee claim for Canada based on sexual orientation from within Canada. I already have a visitor’s visa. Do you think that I will be successful?

— TDT

Dear TDT,

I can provide general advice based on your question. However, there is insufficient information for me to provide a detailed response.

Overall, a claim for refugee status or protected person must be substantiated on its own merits. It must be highlighted that there is a presumption that Jamaica is able to provide protection to its citizens as it is a democratic society with the rule of law. This is of paramount importance because I hear of many individuals who claim protection in Canada and enjoy the opportunity to live, work and study in Canada with medical benefits, etc, while the case is pending.

However, if your claim fails, you will be asked to leave Canada, which will undermine any effort to return there afterwards. Although I am not necessarily questioning the legitimacy of your claim, as I do not know the details, I am warning you that it may not work out for you in the long run, unless you can substantiate your claim. Claims are never guaranteed. However, many individuals who are forced to return to Jamaica have the belief that their immigration counsel in Canada did not give adequate explanation about the outcome of a failed claim.

Convention Refugee

Under Canadian Immigration law, a convention refugee is a person who is outside of his or her country of nationality (or habitual residence) and is unable or unwilling to avail themselves of the protection of their country due to a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion.

In other words, the person is claiming refugee protection in Canada out of fear of persecution if he or she returns to his/her country of origin. The person is unable or unwilling (based on fear) to obtain protection (from the State) in his/her country.

The essence of the definition includes:

• The person fears persecution, which is the systematic mistreatment of a person or groups.

• The persecution must be based on the specific reasons of race, religion, nationality, membership in a particular social group or political opinion (or analogous grounds).

Social group

Membership of a social group is based on:

1. An innate or unchangeable characteristic (gender, linguistic background and sexual orientation);

2. Voluntary association for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and

3. Groups associated by a former voluntary status, unalterable due to its historical permanence (Holocaust victims).

Based on this definition, membership in a category or group such as “poor people” does not in and of itself make one eligible for refugee protection, even though one may suffer disadvantage.

Person in need of protection

The definition of convention refugee is a very specific definition that entails persecution on specific grounds. However, should one not be able to meet the definition of convention refugee, but remains in need of protection, one may still be a person in need of protection.

A person in need of protection is one whose removal to their country would subject them to torture; a risk to their life; or a risk of cruel and unusual treatment or punishment.

Additionally, the risk:

• Would be faced by the person in every part of that country.

• Is not faced generally by other individuals in or from that country.

• Is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards.

• Is not caused by the inability of that country to provide adequate health or medical care.

Based on case law, many claims fail because of the finding that bona fide victims of discrimination do not meet the threshold of persecution. Many victims do not seek the protection of the state while living in Jamaica. There was insufficient evidence to demonstrate that they faced additional personalised risks, subject to torture, risk to life or of cruel and unusual treatment or punishment. Should you wish to pursue the claim, please be mindful of these pitfalls and focus on being able to adequately substantiate your case.

Please visit jamaica2canada.com for additional information on Canadian Permanent Residence programmes, including Express Entry, the Study and Work programme, visitor’s visas or appeals, etc.

– Antonn Brown, BA, (Hons), LLB, MSc, RCIC, is an immigration counsel and an accredited Canadian education agent of JAMAICA2CANADA.COM — a Canadian immigration & education firm in Kingston. Send questions/comments to jamaica2canada@gmail.com.