Refugee claims in Canada are strictly confidential. The decisions by the tribunal are rarely published and, when they are, they are heavily redacted and it takes significant effort to protect to identities of the persons involved. Confidentiality in the refugee context is extremely important. We have had claims where the claimants’ lives would be at risk, even in Canada, if their home government knew their location. The purpose of the RPD is to decide whether the claimants are described in the Act and, therefore, warrant protection from the Government of Canada.
We have assisted many (many!) refugee claimants from around the world. A few examples: Nigeria, Chad, Israel, South Africa, North Korea, Syria, Somalia, Burundi, Kenya and Zimbabwe. I will not list all “source” countries here. Professor Sean Rehaag publishes data on decisions from the RPD. This research is invaluable to lawyers and advocates across Canada.
Refugee Lab has published many important decisions from 2020. This work is extremely labour intensive and we applaud the students who combed through RPD decisions.
Only one (1) of CIL’s cases was published by Refugee Lab:
Citation: 2020 RLLR 86
Tribunal: Refugee Protection Division
Date of Decision: March 2, 2020
Panel: Sandeep Chauhan
Counsel for the Claimant(s): Alastair Clarke
RPD Number: VB9-05166
Associated RPD Number(s): VB9-05182, VB9-05188, VB9-05189
ATIP Number: A-2021-00800
ATIP Pages: 000171-000174
You can read the case here and you can see that it was a mixed decision. This family was from NIGERIA; however, their daughter was born in the USA and, therefore, she was also AMERICAN.
The key to this decision is the section on persecution:
 The persecution that the principal claimant faces has a Nexus to one of the five Convention grounds, which is membership in a particular social group; that is her sexual orientation and, therefore, this claim is assessed under Section 96. The Panel finds that the principal claimant and associate adult claimant have established that they have a well-founded fear of persecution due to her bisexuality, which is supported by objective evidence. The documentary evidence shows a high level of societal homophobia in Nigeria, and also that same-sex relationships are illegal in that country. The country documentation is consiten- consistent with the principal claimant’s past experiences and confirms her forward-looking fear of returning to Nigeria, which is as follows. Homosexuality and bisexuality are against the law in Nigeria. The United States Department of State report on Nigeria discusses some of the relatively recent developments in that country. According to the National Documentation Package, NDP Item 2.1, the 2014 Same-Sex Marriage Prohibition Act, which is referred to as the SSMPA, effectively renders all forms of activity illegal which is supporting or promoting lesbian, gay, bisexual, transgender or intersex rights. According to the SSMPA, anyone convicted of entering into a same-sex marriage or civil union may be sentenced up to 14 years imprisonment. A Response to Information Request of the Immigration and Refugee Board, which is as per ne- NDP Item 6.1, discusses the societal treatment and perceptions of homosexuals. According to the report, LGBTQ people are treated with disdain and disregard for their fundamental human rights. LGBTQ face being ostracized from the community and being subjected to acts of violence, stigma and reproach. The Response to Information Request also discusses the discrimination faced by sexual minorities in employment, accessing housing and accessing healthcare services. According to Section 214 of the Nigeria Criminal Code Act, and this is as per NDP Item 6.2, any person who has carnal knowledge of any person against the order of nature, is guilty of a felony, and is liable to imprisonment for 14 years. In this case, the associate adult claimant is aware of and is fully accepting of the principal claimant’s bisexuality, and is also privy to her friend’s sexual orientation, who he found being intimate with his wife in [XXX] 2017. As such, he would be liable for persecution at the hands of the government of Nigeria, according to Section 214, especially since the police in Nigeria expects the associate adult claimant to repay the whe-, to report the whereabouts his wife and her friend, so that they can be tried under the criminal law. Therefore, the Panel finds that he faces more than a mere possibility of persecution in Nigeria, if he were to return to his country.
As a result of the particulars of this case, most of the claimants were accepted; however, the American child was not granted refugee protection. Please note: the RPD Member made numerous references to objective evidence and documents from credible sources. This highlights the importance of submitting relevant Country Condition evidence to the tribunal.
This RPD decision was extremely well reasoned and it was a pleasure to work with this family. For your information, all family members (including their American child) have been granted Permanent Resident status.