Docket: IMM-913-14
Citation:
2015 FC 480
Toronto, Ontario, April 16, 2015
PRESENT: The
Honourable Madam Justice Simpson
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BETWEEN:
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ABDULAH AZIZ SSALI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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ORDER AND REASONS
(Delivered
orally from the Bench in Toronto, Ontario on April 13, 2015)
[1]
The applicant, Abdulah Aziz Ssali, has applied
for judicial review of a decision of the Refugee Protection Division of the
Immigration and Refugee Board [the Board] dated January 21, 2014, wherein the
Board determined that the applicant is neither a Convention refugee nor a
person in need of protection [the Decision]. This application is made pursuant
to subsection 72(1) of the Immigration and Refugee Protection Act, SC
2001, c 27 [the IRPA].
[2]
The applicant was born in Kampala on April 11, 1977
and is a citizen of Uganda. He has travelled extensively to international
destinations and has a university degree in social work.
[3]
From 1991 to 1994 the applicant had sexual
experiences with two male classmates, MP and MJ.
[4]
In 2001, the applicant entered an arranged
marriage with his first wife. They had three children before they divorced in
2008 after his wife learned that, in 2005, the applicant had rekindled his relationship
with MP.
[5]
In June 2009, the applicant married his second
wife. He described this marriage as one entered into for their mutual
protection because she was a bisexual woman. She subsequently left Uganda for the United States (USA).
[6]
In 2011, the applicant reconnected with his
first wife and she had their fourth child.
[7]
The applicant testified that on October 26,
2012, he was arrested for printing LGBT t-shirts and t-shirts for the Forum for
Democratic Change political party (FDC). The applicant was arrested and was
released after the payment of a bribe.
[8]
On November 4, 2012, the applicant flew to New York using a visa he had applied for prior to his arrest. He remained in the USA until July 13, 2013 without claiming asylum. He then came to Canada and applied for
refugee protection.
I.
The Decision
[9]
The Board found the determinative issues to be
credibility and lack of subjective fear.
[10]
In my view the Board reasonably concluded with
regard to the applicant’s claims for refugee protection based on his sexuality
and political opinion that:
- The applicant is
not gay or bisexual
- The applicant
was never arrested.
- The applicant
did not have a profile with the FDC that put him at risk.
- The applicant
had no subjective fear based on his failure to claim in the US
- The applicant
offered no credible evidence relevant to his claim with exceptions noted
below.
[11]
The exception to this general conclusion is
found in para 17 of the Decision. The Board acknowledged that the applicant:
- participated in
conferences
- wrote abstracts;
and
- printed LGBT
promotional material.
II.
The Issue
[12]
The issue is whether the Board had a duty to
consider whether the applicant would be at risk as an activist on the topics of
AIDS prevention and LGBT rights.
III.
Discussion
[13]
In my view, the applicant’s Personal Information
Form and his counsel’s submissions before the Board show that his fear of
persecution by reason of his work as an activist was before the Board .
Accordingly, the Decision was unreasonable because the Board failed to consider
one of the reasons for the applicant’s refugee claim.
[14]
Accordingly, an order will be made directing a
consideration of the question whether the applicant faces risks under section
97 of the IRPA as an activist in support of the LGBT community and AIDS
prevention in Uganda. The applicant may file further material on the
reconsideration.
[15]
The applicant posed a question for certification
for appeal pursuant to section 74(d) of the IRPA but, in view of his success on
this application, it need not be considered.
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