Refugee judge: You're not gay, you weren't banging guys at age 14

The BBQ Pit
41

[QUOTE=RickJay]
Much hand-wrining and accusations of bigotry are being made here based on, well, very little evidence aside from a news story that’s pretty light on the details.
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I’m wondering why, for example, a hearing that was decided on October 6, 2005 (according to the linked news story) is only now causing problems. There must be more details. Did the applicant not file for judicial review of the case in the 16 months since the decision? Was any judicial review heard by a proper court instead of an administrative body (i.e. the IRB)? If so, what did the court say?

I don’t want to see this young man sent back “just because he didn’t indicate that he was gay.” But at the same time, I’d like to know what remedies he and his lawyer pursued in light of the IRB’s decision a year and (nearly) a half ago.

42

[QUOTE=Spoons]
I’m wondering why, for example, a hearing that was decided on October 6, 2005 (according to the linked news story) is only now causing problems.
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As far as I can tell, the decision wasn’t in October 2005; the hearing was. It may well be that it’s taken a year for the finding to be made and the deportation order to be issued.

In addition to the stay of deportation and the request for humanitarian & compassionate grounds, there’s apparently also been an application for a judicial review based on a breach of natural justice.

I guess it’s because I can’t think of a justification for deciding someone wasn’t gay on the ‘reasoning’ referred to in the news stories.

43

[QUOTE=treis]
Your other words are what you want it to say instead of what it does. All the judge said was that she found the reasons why Mr Orozco’s didn’t pursue a same-sex relationship unconvincing. That doesn’t mean she thinks gays should be trying to screw everything that walks. All it means is that she thinks that the reason Mr Orozco didn’t pursue homosexual relationships is that he is not homosexual.
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Thing is, by that line of reasoning I must have been asexual most of my life. Including during my teens and college years, when the main reason I didn’t have heterosexual sex in quite a few cars is that I had (and still have) this rule about “no condom, no chichi.”

44

[QUOTE=Muffin]
Decisions are supposed to be made on evidence, and the burden of proof is only that of the balance of probabilities. http://www.irb-cisr.gc.ca/en/references/legal/all/weighevid/evidence07_e.htm

The fellow presented evidence - his sworn word that the tale he told was true. Unless there was evidence presented to the contrary, or evidence presented to impinge his credibility, then the decision should have been made based on his evidence and his evidence alone.

From what I have heard in the media so far, no evidence was presented to the contrary, and no evidence presented to impinge his credibility.

Therefore, unless there was something presented that we have not heard about, the adjudicator botched the decision by not accepting the evidence and by deciding the matter on something other than the evidence.

If the government wanted to change the rules, it could: it could change the burden of proof from “balance of probabilities” to “no reasonable doubt”. It could out and out require independent third party confirmation of an applicant having been abused. But it has chosen not to do so. It has chosen to leave the test at one of a balance of probabilities based on credible evidence.
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The problem with this, as others have pointed out, is that it means acceptance in virtually every case.

To my mind, it makes sense for an arbiter to require that the clamant prove on the balance of probabilities that the country he or she fled from was one in which that person had a reasonable apprehension of persecution.

I agree with those who say that whether or not this fellow was actually gay is only of tangental interest (someone fearing persecution because they reasonably expected to be persecuted because others thought they were gay seems to me to be sufficient). However, strictly speaking the arbiter was not requiring the claimant to ‘prove he was gay’: the arbiter was simply evaluating the truthfullness of the claimant’s testimony - something the arbiter must do as part of the job. A system in which the arbiter is required to not evaluate the validity of the evidence before him or her strikes me as unworkable.

While I may agree (after studying the transcript) that the arbiter made the wrong call on this, I do not think that the arbiter was not entitled to make a call.

45

[QUOTE=Malthus]
The problem with this, as others have pointed out, is that it means acceptance in virtually every case.
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If the government has a problem with this, it can always change the burden of proof.

46

[QUOTE=Muffin]
If the government has a problem with this, it can always change the burden of proof.
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It seems to me that you are moving away from a reasonable position – that this particular arbiter was wrong in this particular case – to an unreasonable one, namely that the legislation requires the arbiter not to rule on the veracity of evidence at all.

47

Nope. Not at all. I expect the judge to make a reasoned decision that applies the law.

48

[QUOTE=Malthus]
The problem with this, as others have pointed out, is that it means acceptance in virtually every case.

To my mind, it makes sense for an arbiter to require that the clamant prove on the balance of probabilities that the country he or she fled from was one in which that person had a reasonable apprehension of persecution.
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Part of the way the IRB does this is by studying the situation in particular countries and determining whether, in general, the situation is hostile for those in particular situations. Given what Amnesty International and others report, and the facts of the law in Nicaragua, those would support Mr. Orozco’s claim.

Well, she was, in the sense that she decided he was not gay (for stupid stereotypical reasons), and concluding on the basis of this that he was making up his story. Had she believed that he was gay, that would have eliminated the reason she had for disbelieving his story.

Certainly, otherwise why have an arbiter? However, this particular arbiter made a stupid, stereotype-based decision in this case (as arbiters have occasionally previously done with regard to claims of homophobic persecution), which is what I’m inveighing against.

49

[QUOTE=matt_mcl]
Part of the way the IRB does this is by studying the situation in particular countries and determining whether, in general, the situation is hostile for those in particular situations. Given what Amnesty International and others report, and the facts of the law in Nicaragua, those would support Mr. Orozco’s claim.

Well, she was, in the sense that she decided he was not gay (for stupid stereotypical reasons), and concluding on the basis of this that he was making up his story. Had she believed that he was gay, that would have eliminated the reason she had for disbelieving his story.

Certainly, otherwise why have an arbiter? However, this particular arbiter made a stupid, stereotype-based decision in this case (as arbiters have occasionally previously done with regard to claims of homophobic persecution), which is what I’m inveighing against.
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I’m not really disagreeing with any of that. The arbiter may well have made a wrong call (though as always with legal matters, I’d have to actually research the case before comming to that conclusion with any certainty - it is all too easy to be burned by the characterization of a legal case in the press). That wrong call may well have been based on bias in this case, and in other such cases.

I am merely pointing out, contrary to what was asserted by some, that an arbiter has no choice but to make decisions based on their opinion of the veracity of the witnesses before them. Moreover, absent a statutory right of appeal, in general a court will not intervene on judicial review merely because they think an arbiter is wrong in such a call.

Of course, that opinion should not be influenced in any way by a bias one way or the other.

To say ‘this arbiter is requiring the poor fellow to prove his gayness, an impossible task’ is I think putting the matter too highly; it would naturally flow from this reasoning that anyone comming from a place in which there exists a reasonable likelihood of persecution based on sexual orientation could simply make the same claim, which would in effect be unchallengable. Rather, I’d say ‘this arbiter made a call on the veracity of this witness that is not just wrong, but possibly unreasonable on its face’. That is I think what this guy would have to prove to get it overturned on judicial review.

50

And according to all this, I am completely none-of-your-business-sexual. :dubious:

His sexuality should not be the question. His persecution in regard to his sexuality is. If I walk up to Canada’s immigration service and say “I’m gay, lemme in” they’re going to laugh. If I walk up to Canada’s immigration service and say “I’m being beaten by my dad for being gay,” they’re going to suggest I take the issue to my local law enforcement.

When the local, regional, and national law enforcement all say “You should be beaten for being gay” and you ARE beaten for being gay, it doesn’t matter if you’re having sex with men, women, or chickens. If I, generically ethnic-looking as I am, get beaten up for looking half-black/Hispanic/Iranian/whatever, I am still the victim of a hate crime even though I am not actually of that nationality. If I lived in a country where it was both legal and encouraged to beat people of that nationality, rather than walking around with a sign that says “I’m a white chick!” I’d move.

51

[QUOTE=Otto]
I for one stand ready to have hot refugee sex with any attractive gay immigrants who need a reference.
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What will you be grading them on?

52

[QUOTE=Muffin]
Nope. Not at all. I expect the judge to make a reasoned decision that applies the law.
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But surely the judge is entitled to weigh the credibility of the evidence presented.

In other words, if the guy’s testimony was, “Yeah, sure, I’m gay, whatever you need to hear to let me in, ya know?” we could say that the judge heard no contrary evidence and was, according to your lights, required to find that the applicant was gay.

53

[QUOTE=Bricker]
In other words, if the guy’s testimony was, “Yeah, sure, I’m gay, whatever you need to hear to let me in, ya know?” we could say that the judge heard no contrary evidence and was, according to your lights, required to find that the applicant was gay.
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Yes, if there were no contrary evidence, the judge would have no reason to disregard the sworn statement, and ought to find that the applicant was gay. (Of course, that the applicant is gay may or may not be sufficient reason for a refugee claim. )

In this case, this judge wrongly used failure to have sex with guys, under the conditions stated, as contrary evidence.

54

[QUOTE=Malthus]
Rather, I’d say ‘this arbiter made a call on the veracity of this witness that is not just wrong, but possibly unreasonable on its face’. That is I think what this guy would have to prove to get it overturned on judicial review.
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Sure, that’s what I’ve been arguing. She expected him to prove he was gay by asserting he had had sex with men when [list of difficult conditions deleted] – for which, incidentally, she would have had to accept the same type of evidence as his assertion that he is gay, to wit, his sworn statement.

Her call on the veracity of the claimant was unreasonable because she required an unreasonable type of proof of a particular element of his claim.

55

The Refugee Board is hopelessly corrupt, a total violation of natural justice.

A number of Board members have recently been removed for things like sexual harassment and (in one case) offering to trade a positive ruling for sexual favours. At least one Board member has never made a single positive ruling.

Please note that refugee laws are not Canadian laws: they are under the Geneva Convention, and Canada has obligations under that convention to take in a certain number of refugees each year. As someone has already pointed out, we are nowhere near that upper limit and could “afford” many, many more.

However, what we get are political appointees using their experience as middle-to-upper-class white Canadian folks to decide whether applicants’ stories sound “credible.” Board members often have no background whatsoever in either (a) refugee law or (b) international situations, and as such are hopelessly unqualified to be making life or death decisions based on their opinions about situations that applicants found dire enough to flee from.

There is no mechanism for accountability or appeal in any form whatsoever. Bricker says

On a similar note, a Board member could say “Your claim is rejected because you are black and I don’t like your kind” and there is not a single thing that anyone could do about it.

56

[QUOTE=cowgirl]
On a similar note, a Board member could say “Your claim is rejected because you are black and I don’t like your kind” and there is not a single thing that anyone could do about it.
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Well, there is a right of judicial review for violation of natural justice, and there’s a direct request to the Minister for humanitarian and compassionate grounds (both of which Mr. Orozco is going for), but they’re extremely difficult and chances tend to be quite slim.

The main point is that there is no way to appeal the merits of the case, and the most galling thing is that this is despite the fact the Immigration and Refugee Protection Act established one in 2001. The government simply announced it wasn’t going to set one up despite what the law said.

57

[QUOTE=matt_mcl]
Sure, that’s what I’ve been arguing. She expected him to prove he was gay by asserting he had had sex with men when [list of difficult conditions deleted] – for which, incidentally, she would have had to accept the same type of evidence as his assertion that he is gay, to wit, his sworn statement.

Her call on the veracity of the claimant was unreasonable because she required an unreasonable type of proof of a particular element of his claim.
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Sure, we can agree on that (assuming the transcript bears it out). I’ll not agree that the arbiter would have to accept an uncontested sworn statement as proof of a claim withour recourse to noting any inconsistencies within it, though. That’s going too far.

58

[QUOTE=Nava]
Thing is, by that line of reasoning I must have been asexual most of my life. Including during my teens and college years, when the main reason I didn’t have heterosexual sex in quite a few cars is that I had (and still have) this rule about “no condom, no chichi.”
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You still pursued a heterosexual relationship, no?

59

[QUOTE=cowgirl]

There is no mechanism for accountability or appeal in any form whatsoever. Bricker says On a similar note, a Board member could say “Your claim is rejected because you are black and I don’t like your kind” and there is not a single thing that anyone could do about it.
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That’s just not true. That’s one of the few cases in which a remedy would be available - namely, judicial review on the basis of bias and unreasonableness.

Let’s put it this way: like many an administrative tribunal, where an arbiter’s ruling is not appealable to a higher authority* and a court will not overturn it because in the court’s opinion it was wrong. A court will overturn it if it was a decision outside of the arbiter’s jurisdiction to make, or was made unreasonably, or was prompted by bias or corruption.

*Unless the Act provides for such an appeal - and the Immigration Act does, to the Immigration Appeals Division.

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[QUOTE=Malthus]
*Unless the Act provides for such an appeal - and the Immigration Act does, to the Immigration Appeals Division.
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That’s for immigrants, not refugees. As I said earlier, the Act provides for refugees to appeal to a Refugee Appeals Division, which the government has never bothered to set up.