Francis Ojo Ogunrinde v. Canada (Minister of Public Safety and Emergency Preparedness; Minister of Citizenship and Immigration), Federal Court of Canada (15 June 2012)
The petitioner was refused refugee status by the Refugee Protection Division of the Immigration and Refugee Board because his claim of being a homosexual was found not credible. He appealed to Federal Court for review of the Immigration and Refugee Board decision.
The petitioner, a Nigerian citizen, arrived in Canada and sought refugee status on the basis of his sexual orientation. The Refugee Protection Division of the Immigration and Refugee Board (RPD) refused his application since he was found not credible and not homosexual. Subsequently, he applied for a Pre-Removal Risk Assessment (PRRA) and provided extra evidence to underline his sexual orientation and the serious risks he would face if sent back to Nigeria. The senior immigration officer rejected this application on the same grounds as the RPD.
Whether the immigration officer had considered adequately the evidence on the sexual orientation of the petitioner before rejecting the PRRA application.
Immigration and Refugee Protection Act 2001
Kaybaki v Canada, Federal Court Canada, 2004 (PRRA application is not an appeal of a refugee determination);
Maldonado v Canada (Minister of Employment and Immigration), Federal Court Canada, 1980 (sworn evidence is presumption of truth);
Ponniah v Canada (Minister of Citizenship and Immigration), Federal Court Canada, 2003 (It is inappropriate to rely on stereotypes when evaluating any ground of risk);
Herrera v Canada (Minister of Citizenship and Immigration), Federal Court Canada, 2005 (It is inappropriate to rely on stereotypes when evaluating any ground of risk).
Reasoning of the Court
Judgment by Hon. Mr. Justice Russell
The Federal Court deemed that the PRRA Officer failed to consider the evidence correctly for a variety of reasons.
Both the RPD and the PRRA officers argued that the evidence contained inconsistencies and concluded that, on a balance of probabilities, the applicant was not gay. At the same time, they both appeared to accept in general terms that homosexuals are at risk in Nigeria. They seemed to agree that the applicant would possibly face risk or persecution in Nigeria if his homosexuality had been proven. Since his homosexuality was not proven, the PRRA Officer determined the applicant would not face a risk of persecution if he returned to Nigeria. When evaluating the judgment of the PRRA Officer, the Court found that the risk of perceived homosexuality in Nigeria had not been appropriately analysed. The Court stated that the question was not whether or not the applicant was gay but rather the belief of Nigerian authorities about his sexual orientation. The applicant had provided clear evidence of the risk he faces in Nigeria, for example by producing a letter of a friend explaining that the Nigerian law enforcement agencies believe he is homosexual and are looking for him because of his alleged homosexual activities. Although he failed establish his homosexuality to the satisfaction of the PRRA Officer, he was regarded as a homosexual in Nigeria and was wanted for that. The Federal Judge found that the PRRA Officer had not adequately considered this important aspect.
The Federal Judge also found the treatment of the evidence by the PRRA Officer unreasonable. Although several letters and affidavits had been provided, the Officer considered the evidence to be insufficient because of the low probative value. The Federal Judge believed that by expecting further details as corroborative evidence for the risk of persecution he would face in Nigeria, the Officer ignored the reality that Nigerian authorities are not likely to treat gay people with “normal formalities” such as formal respect or due process. Furthermore, the Federal Court found it unreasonable to ask for more concrete details on his behaviours and actions with other men.
The Court emphasized that certain acts and behaviours that might establish an applicant’s homosexuality are inherently personal. Although the burden of proof lies with the claimant, officers must be mindful of the difficulties in proving sexual relationships. The Court stated: “The Officer’s reasoning on this point also suggests that she had in mind a set of actions or behaviors which would convince her that the Applicant is homosexual. It is inappropriate for officers to rely on stereotypes when evaluating whether or not a person has established any ground of risk, including sexual orientation.”
The PRRA officer had not adequately considered the evidence. The decision was quashed and the matter was sent back to a different PRRA officer.
Francis Ojo Ogunrinde v. Canada (Minister of Public Safety and Emergency Preparedness; Minister of Citizenship and Immigration) Federal Court of Canada (15 June 2012) (full text of judgment in English, PDF)