Refugee Claims and Criminalization of Same-Sex Intimacy: The Case of Sebastiao

Abstract

This article reviews the decision of Sebastiao v Canada (Minister of Citizenship and Immigration), in which the Federal Court upheld the decision of the Refugee Appeal Division (RAD) of the Immigration and Refugee Board (IRB) to reject Sebastiao's claim for refugee protection because his fear of persecution on account of his sexual orientation in Angola was not well founded. The case of Sebastiao attempted to advance the RAD's understanding of properly reviewing documentary evidence in refugee claims based on sexual orientation. The record included helpful resources like the United Nations High Commissioner for Refugees' Guidelines on International Protection No 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, international human rights cases setting out important legal principles, and published works of international legal experts on sexual minority refugees. Nevertheless, the Federal Court found that it was open to the RAD to expect proof that laws criminalizing sexual minorities are actively applied in Angola.