Federal Court


Immigration

EXCLUSION AND EXPULSION
Officer almost certainly wrong when he described situation as unchanged

Applicant’s underlying judicial review application sought deferral of removal in face of new risks facing homosexuals and bisexuals in Nigeria. Applicant claimed he was bisexual and feared his sexual orientation would put him at serious risk of death, extreme sanction and inhumane treatment in Nigeria. Motion by applicant for stay of removal pending outcome of judicial review application. Motion granted. Officer was given country condition reports, which demonstrated situation in Nigeria had worsened. In applicant’s refugee application, board did not accept applicant had personalized risk, but did not make any finding on his sexual orientation or generalized risk. As such, officer had no basis to conclude risk considered by board was same generalized risk presented in support of deferral request. While officer did not have authority to look behind board decision, he had duty to consider generalized risk faced by applicant as purported bisexual returning to Nigeria. Nigerian government had begun campaign against homosexuals and bisexuals, with round ups and inhumane punishment, which had been condemned by Canada and other countries. Officer was almost certainly wrong when he described situation in Nigeria as unchanged and found that board had appropriately assessed generalized risk. Irreparable harm was established and Canada clearly should not be deporting homosexuals and bisexuals to Nigeria in current conditions. Balance of convenience favoured applicant’s interest over Minister’s desire to deport him.

Abioye v. Canada (Minister of Public Safety and Emergency Preparedness) (Apr. 10, 2014, F.C., R.L. Barnes J., File No. IMM-1828-14) 239 A.C.W.S. (3d) 718.

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