A federal judge in Toronto has ordered the rehearing of a Nigerian man‘s asylum case after it was rejected by an immigration judge because she felt the man was not “credible” and, in her opinion, had failed to prove he was gay.
But in a decision last month, federal Judge James Russell set aside the officer’s decision, saying that the officer seemed to have been guided by stereotypical beliefs about how a gay person should behave.
“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,” Russell wrote.
The judge said he was mindful of the difficulties immigration officers face when assessing these types of cases.
“At the same time, the acts and behaviours which establish a claimant’s homosexuality are inherently private,” Russell wrote. “When evaluating claims based on sexual orientation, officers must be mindful of the inherent difficulties in proving that a claimant has engaged in any particular sexual activities.”
The case centers on Francis Ojo Ogunrinde, now 40, who in 2007 came to Canada as a refugee. However, in 2010 the Immigration and Refugee Board rejected his claim for refugee status, saying that he had failed to provide adequate proof that he is gay and therefore would face persecution if sent back to his home country.
However, it seems Ogunrinde had provided quite a bit of material evidence to support his assertions.
Ogunrinde reportedly provided letters attesting to his sexuality from several people, and also a letter from a man with whom he had been in a relationship with since 2010. Within that submission there were also pictures of the couple.
Moreover, Ogunrinde is said to have provided a letter from a friend still living in Nigeria that said Ogunrinde was wanted by police with regards to so-called “homosexual activities.”
The submission also provided a letter from a local community center near where Ogunrinde currently resides. The letter confirmed he had a longstanding membership with a gay community group and that he was an active member.
However, this apparently was not enough for the senior immigration judge.
She said that the letters and pictures had not adequately proved that he was gay, noting that the letter from Ogunrinde’s alleged boyfriend failed to explain how they’d met or expound on any romantic aspects of their relationship.
Human rights groups have continually pointed out in cases like this that overt details of an asylum seeker’s sexual orientation would be hard to pin down precisely because they must hide their sexuality in their home country, and therefore pictures of the applicant and their romantic partner were unlikely to make the relationship obvious.
This case also speaks to the wider problem faced by immigration officials who must consider what constitutes a genuine asylum claim with reference to sexuality and an opportunistic claim.
What is interesting in this particular case however is the sheer breadth of evidence the applicant had sort to have considered and how this evidence was summarily–and according to the federal court, improperly–dismissed by immigration officials.