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Similarities in Nigerian asylum claims based on sexual orientation have Legal Aid Ontario asking questions

60-70% of Nigerian asylum claims made in Ontario since April cited persecution based on sexual orientation

Anita Elash, Diana Swain, Tara Carman - CBC News

November 10, 2017

Jawad Kassab, who leads the immigration and refugee program at Legal Aid Ontario, said the agency has identified an 'unusual' pattern in asylum claims based on sexual orientation claims filed by Nigerians this year. (Mark Bochsler)

Nigerian asylum seekers in Canada are making so many similar claims based on sexual orientation that Legal Aid Ontario is worried some claims may be fabricated.

Jawad Kassab, who leads the refugee and immigration program at Legal Aid Ontario, said the agency has identified an "unusual" pattern in sexual orientation claims filed by Nigerian refugee seekers this year.

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He said the agency has written to five lawyers who represent a "high volume" of those cases and asked if they can help explain what's behind it. He would not name the lawyers.

Kassab said he is concerned that if claims are fabricated, refugees with legitimate claims might have a harder time getting the help they need.

"It galls me because of the potential impact that it could have on the refugee system and the Canadian public's perception of refugee claimants and refugees in a very vulnerable time globally," he said.

Former Nigerian president Goodluck Jonathan signed the Same-sex Marriage Prohibition Act into law on Jan. 7, 2014. The law allows for up to 10 years in prison for belonging to a gay rights groups and up to 14 years imprisonment for engaging in homosexual behaviour. (Tiksa Negeri/Reuters)

The Nigerian government outlawed same-sex relationships in 2014. Arbitrary arrests, extortion and mob violence against those believed to be homosexual have become more common since then, according to New York-based Human Rights Watch, a nonprofit, nongovernmental organization.

Lawyers who represent Nigerian refugees say that may explain the recent spike in Nigerian refugee applications based on sexual orientation.

"It's almost like a war zone for homosexuals," said immigration lawyer Richard Odeleye. "You cannot expect people to put up with that, and they have to leave."

Odeleye, who said he received one of the letters from Legal Aid Ontario, says he finds the suggestion that lawyers may be coaching clients to fabricate their stories "insulting" and "discriminatory."  

About 90 per cent of the refugee claims made by Nigerians in Canada are heard in Toronto. 

Kassab said Legal Aid Ontario, which covers the legal costs for most refugee claims heard in the province, became suspicious after a routine review of refugee applications showed that 60 to 70 per cent of about 600 Nigerian claims made in Ontario since April were based on persecution because of sexual orientation.

Kassab described that number as "high, relative to other countries."

Kassab said the stories often involved a married person whose spouse discovered them with a same-sex partner. The married couple then reconciled and they and the same-sex partner all applied for refugee status in Canada over fears of persecution in Nigeria.

The fact that a few lawyers were responsible for a "disproportionate" number of claims also raised questions, Kassab said. As a result, he said Legal Aid fears some of the claims are either made up by individual claimants or that legal representatives coach them to do so.

'All I can do is ask the client repeatedly, "Are you being truthful?"' said Johnson Babalola, a Toronto-based immigration and refugee lawyer whose law firm represents a large number of Nigerian clients. (Oliver Walters/CBC)

"There's certain patterns that when you look at them over 40, 50, 60 claims you begin to wonder about the plausibility and begin to suspect that maybe some of these claims are fabricated," he said.

Nigerian nationals are the second-largest group seeking refugee status in Canada in 2017. By the end of August, 2,055 Nigerians had applied for asylum, according to Immigration, Refugees and Citizenship Canada.

Immigration and Refugee Board of Canada (IRB) data obtained by CBC News shows the number of Nigerian claims has grown steadily since the federal government set up a new refugee system in 2013.

The IRB data represents cases that were adjudicated within the same year the application was received, from 2013 to April of 2017.

It shows that Nigerians made up about 25 per cent of all claims on the basis of sexual orientation during that period. Of those claimants, 60 per cent said they were bisexual. On average, 12 per cent of claimants from all other countries said they were bisexual.

Deciding if someone's being truthful about their sexuality is nearly impossible, says Sean Rehaag, an expert in immigration and refugee law at York University's Osgoode Hall Law School in Toronto. ( Oliver Walters/CBC)

Odeleye said it's not uncommon for gay and lesbian Nigerians to get married simply to keep up appearances. When they come to Canada, they struggle to come to terms with their decision and assume they must be bisexual, he said.  

He said his job as a lawyer is to present his client's case as he or she states it, not to decide if they're telling the truth.

"I don't ask questions. I just do my job and represent my clients," he said.

Refugee and immigration lawyer Johnson Babalola, whose law firm represents a large number of Nigerian clients, said it would be "of great concern" if lawyers were counselling clients to fabricate stories to the immigration and refugee board. But he said he hasn't seen any evidence of that.

He said he has turned away some people whose story seemed suspicious, but that, generally, it is impossible to prove a client's sexual orientation.

"All I can do is ask the client repeatedly, 'Are you being truthful? Are you telling the truth?' And once the client says, 'This is my claim,' I have to advance it," he told CBC.

Refugee cases based on sexual orientation are difficult to adjudicate, said Sean Rehaag, a law professor who specializes in refugee and immigration law at York University's Osgoode Hall Law School.

Deciding if someone's being truthful about their sexuality "is a problematic if not impossible task," he said.

Earlier this year, the IRB set out new guidelines for dealing with such claims. They direct board members to avoid making decisions based on appearance and stereotypes.

At the end of the day,  adjudicators are required to give claimants the benefit of the doubt, Rehaag said.

IRB data shows that in the first three months of this year, the board accepted 54 per cent of such claims, compared with 64 per cent two years earlier.

The board has accepted 72 per cent of sexual orientation claims from all other countries since 2013.

The IRB declined to comment for this story.

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