Docket: IMM-1713-13
Citation:
2014 FC 408
Ottawa, Ontario, May 1,
2014
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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OLABANJI AKANNI LADIPO
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
AND THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondents
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Olabanji Akanni Ladipo, is openly homosexual. He married his
male partner in Canada on December 30, 2011. He says that he is a citizen of Nigeria, a fact that appears to have been accepted by Citizenship and Immigration Canada, as the
Departure Order it made against him on September 15, 2009, states that he is “a
citizen of Nigeria” and there is no suggestion that he would be removed from Canada to any other country. However, Mr. Ladipo has not been able to
convince either the Refugee Protection Division [RPD] or the immigration
officer who conducted his Pre-Removal Risk Assessment [PRRA] of his identity as
a Nigerian and, as a result he has had no assessment of his risk as a gay
married man if he is returned to Nigeria.
[2]
Mr. Ladipo alleges he was caught having sex with his male lover by the
manager and staff of the motel he was staying at in Nigeria. He says the
police began searching for him at his home in Nigeria but that, with the help
of his sister, he obtained travel documents and came to Canada several days later.
[3]
The RPD rejected his claim for refugee protection on
May 30, 2011, because of credibility issues with respect to his identity as a
national of Nigeria. Since identity was not established, the RPD did not
assess the risk he would face in Nigeria as a result of his homosexuality.
Leave for judicial review of the RPD’s decision was denied.
[4]
Mr. Ladipo submitted a
significant quantity of documents with his PRRA application, including: A copy
of the Record of Solemnization of Marriage to his male partner on December 30,
2011, original affidavit for his Loss of International Passport and an extract
from the Nigerian Police Crime Diary regarding same, and a certified true copy
of a Birth Certificate issued by the Oyo State Hospitals Management Board
referencing his birth at Jericho Nursing Home in Ibadan, Nigeria, on November
16, 1978.
[5]
The officer determined that Mr. Ladipo had not
submitted new evidence to lead to a conclusion different than the RPD. As a
consequence, the officer was not convinced that Mr. Ladipo had established his
identity as a Nigerian, and rejected his PRRA application without any
examination or assessment of risk. The officer incorrectly states in his
letter informing Mr. Ladipo of the result of the PRRA application the
following:
It has been determined that you would not be subject to risk of
persecution, danger of torture, risk to life or risk to cruel and unusual
treatment or punishment if returned to your country of nationality or habitual
residence.
This statement is quite simply wrong as
there had been no such “determination.”
[6]
It is trite law that a PRRA officer must “assess the risk against the country of removal (Raza
v Canada (Minister of Citizenship and Immigration), 2007 FCA 385):” Hinzman v Canada (Minister of Citizenship and
Immigration), 2010 FCA 177, [2012] 1 FCR 257 at para 25.
[7]
I am mindful of the decision in Suresh v Canada
(Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 [Suresh]
where the Supreme Court found at para 6 that Mr. Suresh had “made a prima
facie case showing a substantial risk of torture if deported to Sri Lanka
and that his [deportation] hearing did not provide the procedural safeguards
required to protect his right not to be expelled to a risk of torture or death.”
[8]
I am also mindful of, and endorse completely,
Justice Barnes’ statement in Abioye v Canada (Minister of Citizenship and
Immigration), 2014 FC 348 at para 11, that: “Under present conditions in Nigeria, Canada should not be deporting homosexuals and bisexuals to Nigeria.”
[9]
Nigeria has recently
enacted laws which, among other offences directed to homosexuals and bisexuals,
make same sex unions punishable by up to 14 years imprisonment. There are also
credible reports contained in the record of the police actively rounding up and
mistreating homosexuals. Moreover, the record shows that citizens of that
country now apparently feel they are at liberty to harass and abuse homosexuals
and bisexuals with impunity. Accordingly, it is my view that any homosexual,
such as Mr. Ladipo, being returned to Nigeria at present, has a prima facie
case that he or she will be at substantial risk if deported.
[10]
In my view, the PRRA decision under review is unreasonable
because the officer had an obligation to assess Mr. Ladipo’s risk
against the country of removal (Nigeria), notwithstanding any continuing issue
with his identity.
[11]
The failure to establish identity means that
there was no need for the RPD to proceed further with an analysis of risk of
persecution; however, it has never been held that the same applies in a PRRA
analysis such that an officer need not assess risk if the applicant’s identity
has not been established. If it were otherwise, then the situation would be
akin to Suresh where failed refugee claimants would be removed to other
countries with no assessment made of their risk. Whether the applicant’s
identity is established to the satisfaction of a PRRA officer or not, the
obligation of that officer is to assess the applicant’s risk against the
country of removal. Because that was not done in this case, the application
for a PRRA must be reassessed by a different officer, in keeping with these
reasons.
[12]
Neither party wished to propose a question for
certification.
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