ABIMBOLA KAZEEM ABIOYE Applicant v. THE MINISTER FOR PUBLIC SAFETY AND, 2014 FC 348

Date: 20140410 Docket: IMM-1828-14 Citation: 2014 FC 348 Ottawa, Ontario, April 10, 2014 PRESENT: The Honourable Mr. Justice Barnes BETWEEN: ABIMBOLA KAZEEM ABIOYEApplicantand THE MINISTER FOR PUBLIC SAFETY ANDEMERGENCY PREPAREDNESSRespondent REASONS FOR ORDER AND ORDER [1] This is a motion for a stay of removal of Abimbola Kazeem Abioye to Nigeria. Mr. Abioye claims to be bisexual and hefears that his sexual orientation puts him at serious risk of death, extreme sanction or inhumane treatment.

The motion stands to beresolved in accordance with the tripartite test described in Toth v Canada (MEI), (1988) (FCA), 86 NR 302, [1988]FCJ No 587 (FCA). [2] The underlying application for judicial review concerns a decision refusing to defer Mr. Abioye’s removal in the face ofasserted new risks facing homosexuals and bisexuals in Nigeria. The Inland Enforcement Officer (Officer) noted the denial ofMr.

Abioye’s refugee protection claim in September 2013 and refused the deferral request on the basis that the risk “is essentially thesame risk assessed in his refused claim for refugee protection”. [3] This motion speaks to a problem with the current system for assessing changes in risk arising after a failed refugee claim.

The authority of an enforcement officer to consider new risks is circumscribed and may not be sufficiently robust in all cases to ensurethat failed refugee claimants are not returned to torture. [4] Under the current legislation there is no longer a right to a full-fledged risk assessment until after one year from the denial ofa refugee claim, even in circumstances where the risk has markedly worsened in the interregnum.

In some measure, this gap can bebridged under the recognized authority of an enforcement officer to consider evidence of a new or more profound risk – albeit at thelevel of death, extreme sanction or inhumane treatment. This Court also has the jurisdiction to stay removals in appropriate cases. Butthere remains a valid concern about the ability of an enforcement officer to do justice to the evidence, particularly in the context of acompeting statutory obligation to effect removals as soon as possible. In some cases, the latter obligation seemingly takes precedenceover the former.

This appears to be one such case. [5] The Officer was given country condition reports describing the current risks facing homosexuals and bisexuals in Nigeria. That evidence indicated that the situation had profoundly worsened. [6] It is clear from the Refugee Protection Division (Board) decision that Mr. Abioye’s story of personalized risk was notbelieved. Unfortunately, the Board made no finding concerning Mr. Abioye’s sexual orientation. The Board also paid no attention tothe issue of generalized risk.

Accordingly, the Officer had no basis to conclude that the risk considered by the Board was essentially thesame as the generalized risk that was presented in support of the deferral request. [7] Although the Officer had no authority to look behind the Board’s decision, he did have an obligation to consider thegeneralized risk facing Mr. Abioye as a purported bisexual or gay male returning to Nigeria. [8] Included in the new material before the Officer was evidence that early this year the government of Nigeria began acampaign against gays and lesbians.

This included legislative changes that, among other things, criminalized homosexual clubs andassociations with penalties of up to 10 years in prison. Same sex unions are now punishable with up to 14 years of prison. Disturbingly,an active police round-up was also initiated leading to dozens of arrests and reports of torture. In one case an individual was punished bywhipping. The hunt was said to be on for others.

The situation was of sufficient concern that the governments of Canada, the UnitedStates and Britain have all condemned the new law and the official campaign to enforce it. [9] In the face of these apparently credible reports, the Officer was almost certainly wrong when he decided that the situation inNigeria was unchanged and that the Board had appropriately assessed the generalized risk in Nigeria. [10] I am satisfied that the Officer’s approach to this issue was almost certainly a mistake and therefore meets the elevatedstandard for finding a serious issue required by Wang v Canada (MCI), 2001 FCT 148, [2001] 3 FC 682.

I would add a further concern: if recourse to this Court is to be considered a vital element of the duty to assess the risk arising from deportation in post-refugeedetermination cases, we may want to reconsider the wisdom of applying the Wang standard on motions of this kind. [11] In the face of Mr. Abioye’s sworn evidence and in the absence of any determination with respect to his sexual orientation, Iam satisfied that irreparable harm has been established. Under present conditions in Nigeria, Canada should not be deportinghomosexuals and bisexuals to Nigeria.

[ 12 ] The balance of convenience clearly favours Mr. Abioye’s interest over the Minister’s desire to remove him from Canada. ORDER THIS COURT ORDERS that the Applicant’s motion is allowed and his removal from Canada is stayed until the final determination of the underlying application. "R.L. Barnes" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-1828-14 STYLE OF CAUSE: ABIMBOLA KAZEEM ABIOYE v THE MINISTER FOR PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: April 3, 2014 REASONS FOR ORDER AND ORDER: BARNES J. DATED: April 10, 2014 APPEARANCES : Mr.

Johnson Babalola For The Applicant Ms. Suran Bhattachar yya Mr. Christopher Crighton For The Respondent SOLICITORS OF RECORD : Johnson Babalola Barrister and Solicitor Toronto, ON For The Applicant William F. Pentney Deputy Attorney General of Canada Toronto, ON For The Respondent