A Federal Court judge has ruled that Canada's refugee adjudicators should not rely on stereotypes to determine if a person is gay in cases where applicants believe they will be persecuted if returned to their home countries.

The decision stems from the case of a gay Nigerian man, wanted by police in his home country for homosexual activities, who was refused refugee status here.

A division of Canada’s refugee board ruled Aug 30, 2011, that Francis Ojo Ogunrinde had not proven he was gay, despite sworn affidavits.

Reviewing Judge James Russell ruled the Refugee Protection Division (RPD) of the Immigration and Refugee Board did not give Ogunrinde’s affidavits enough weight in its 2010 decision.

Ogunrinde, 40, has been living in Canada since October 2007, when he arrived as a refugee claimant. He sought Canada’s protection because homosexuality is a crime in Nigeria.

The RPD decided that Ogunrinde is neither credible nor gay.

After the RPD decision, Ogunrinde applied for a pre-removal risk assessment. He provided two letters from people saying they know he is gay, as well as a letter from a man saying he and Ogunrinde were in a relationship.

Ogunrinde also submitted documents from two Nigerians saying Nigerian police had been seeking him because of his homosexual activities.

In reviewing the case, Russell said the RPD officer's reasoning on some points "suggests that she had in mind a set of actions or behaviours which would convince her that the applicant is homosexual.

"Behaviours which establish a claimant’s homosexuality are inherently private,” Russell noted. “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. Claimants may not be in contact with past sexual partners for various reasons, including relationship breakdown, distance, or simply the passage of time."

Russell found the RPD officer also rejected Ogunrinde’s and his friends' claims of bad experiences with police, despite corroboration from US Department of State reports. He called the assessment officer’s decision unreasonable.

"The evidence the applicant submitted was more than sufficient to establish he is homosexual and faces a risk on that basis if he is returned to Nigeria," Russell ruled.

The case has been returned to the RPD for a new pre-removal risk assessment before different staff.

It’s an important ruling, says gay Toronto immigration lawyer El-Farouk Khaki. It establishes a framework for assessing — and believing — refugee claimants about their sexual orientation.

Khaki says that in the Ogunrinde case, there was plenty of evidence when looked at as a totality, something the RPD officer chose not to do.

The officer looked "at the colours but not the whole palette," Khaki says.

Sometimes adjudicators forget that people sending affidavits from abroad may not understand what is needed and may not be able to afford the work involved, Khaki adds. "Sometimes, it's not considered by people living in a perfect bureaucratic world."

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