Docket: IMM-2881-16
Citation:
2017 FC 222
Ottawa, Ontario, February 23, 2017
PRESENT: The
Honourable Madam Justice McDonald
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BETWEEN:
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SONIA IRENOSEN
ISESELE
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Applicant
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and
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THE MINISTER OF
IMMIGRATION, REFUGEES AND CITIZENSHIP
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Respondent
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JUDGMENT AND REASONS
[1]
The Applicant, Ms. Isesele, is a young female from
Nigeria who claimed refugee status in Canada. Her refugee claim was dismissed
because her identity documents contained a discrepancy in regard to her year of
birth. This is a judicial review of the denial of her permanent residence
application on humanitarian and compassionate [H&C] grounds.
[2]
For the reasons that follow, this judicial
review is granted as the H&C Immigration Officer’s [the Officer] analysis
and conclusions on the issue of sexual orientation are unreasonable.
I.
Background
[3]
Ms. Isesele claims she was born on August 8,
1998 in Edo State, Nigeria. Following the death of her mother in 2012, she was
sold into marriage by her father to an older man who had two other wives and
several children. During the two years she was in this marriage, she says she
was subjected to verbal and physical abuse and rape.
[4]
In 2014, with the help of a smuggler, Ms. Isesele
left Nigeria for Canada. She provided the smuggler with her birth certificate and
two photos, which her smuggler used to obtain a passport and other documents.
[5]
Upon arrival in Canada, Ms. Isesele claimed
refugee protection. Her claim was denied because she was in possession of two
birth certificates with different birth years. The Refugee Protection Division
[RPD] concluded that she had failed to establish her identity. The Refugee
Appeal Division concurred with the RPD’s decision.
[6]
Ms. Isesele submitted an H&C application on
the grounds of establishment, the best interests of the child [BIOC], and she also
claimed to be at risk in Nigeria as she began to identify as bisexual while in
Canada.
II.
H&C Decision
[7]
With respect to her age, the Officer notes that although
Ms. Isesele failed to provide convincing evidence that she was under the age of
eighteen (18), as the Province of Ontario considered her a minor, the Officer
decided to undertake a BIOC analysis. However, the Officer states that given
the uncertainty of Ms. Isesele’s age, she did not place significant weight on
the BIOC factor in the overall assessment of Ms. Isesele’s H&C application.
[8]
The Officer also found that there was
insufficient evidence demonstrating a negative impact on Ms. Isesele if she
were to leave Canada, mainly due to the deficiency in evidence related to her
identity.
[9]
With respect to Ms. Isesele’s sexual
orientation, the Officer accepted that she was a bisexual woman. However, the
Officer concluded that Ms. Isesele would not face discrimination amounting to
hardship in Nigeria, because there was insufficient evidence to establish that she
would return to a part of Nigeria where Sharia law was imposed. The Officer
notes that bisexuality is more tolerated in Nigeria than male same-sex activity
and that there were low reported incidents of corrective rape, forced marriages
and psychological violence committed against bisexual women. Finally, the Officer
notes that Ms. Isesele could maintain a low profile about her sexual
orientation.
III.
Issue
[10]
The following issue is determinative of the
outcome of this application:
- Did the Officer err in assessing the issue
of sexual orientation?
IV.
Analysis
A.
Standard of Review
[11]
The applicable standard of review of an H&C
decision is reasonableness (see Kisana v Canada (Citizenship and
Immigration), 2009 FCA 189 at para 18).
I.
Did the Officer err in assessing the issue of sexual
orientation?
[12]
The Officer accepts that Ms. Isesele is bisexual
and notes that the law in Nigeria prohibits same-sex marriages and practices. The
Officer also accepts that it is “socially taboo”
to be a homosexual in Nigeria.
[13]
The Officer’s decision contains the following
remarks:
“…there is little evidence that the
applicant engages in any public behaviour that would cause others to perceive
her as a bisexual women. She does not state that she lives openly, she has told
very few people that she trusts[…]Consequently, I find that the applicant will
not return to a situation of discrimination resulting in much hardship because
her personal preference is to remain extremely private about her sexual
orientation.”
[14]
It is clear from these remarks that the Officer is
implying that as long as Ms. Isesele keeps her bisexuality private, she can
avoid discrimination. However, this Court has held that requiring a woman to
hide her relationship with another woman in order to avoid punishment, could be
a serious interference with basic human rights, and therefore amount to
persecution (Sadeghi-Pari v Canada (Minister of Citizenship and
Immigration), 2004 FC 282 at para 29).
[15]
Additionally, it was unreasonable for the
Officer to assume that Ms. Isesele would not face discrimination and hardship,
as long as she maintained a low profile and refrained from engaging in any
public behaviour or expression that might indicate that she is a member of the
LGBTQ community. The Officer needed to consider what would happen if Ms. Isesele’s
identity were to be discovered in Nigeria, and not whether it is likely that it
would not be discovered (see Sheikh v Canada (Citizenship and Immigration), 2014
FC 264 at paras 10 and 14).
[16]
Further, in Kanthasamy v Canada (Citizenship
and Immigration), 2015 SCC 61, the Supreme Court of Canada explained that an
Applicant only needs to show that he or she is a member of a group that is
discriminated against and is not required to present any direct evidence that
he or she would personally be the target of discriminatory action if deported
(see paras 53 and 56).
[17]
The Officer did not properly apply the test for
determining the adequacy of state protection. As such, the Officer’s conclusion
cannot be characterized as justified, transparent or intelligible (see Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47).
[18]
For the reason above, the Officer’s conclusion on
the issue of sexual orientation is unreasonable. Accordingly, this application
for judicial review is allowed and the matter is remitted to a different
Officer for reconsideration in accordance with the law.
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