It matters little whether this case “should be a slam dunk under Canadian law” because the immigration board is not applying Candian law; at least not exclusively. Asylum claims are adjudicated under the UN Convention Relating to the Status of Refugees. Hence the question becomes whether Okoli faces a well-founded fear of persecution on the basis of his membership in a particular social group (in this case, presumably, homosexuals) upon his return to Nigeria.

Kate: Presumably, the first panel of the immigration board based their reasoning on Okoli’s membership in the particular social group “out” or “known” homosexuals; if so, if Okoli were able somehow to conceal his homosexuality while in Nigeria, he would no longer fall under the definition contained in the Refugee Convention. Silly, perhaps, but true, as the law stands. Legally, the prior decision wasn’t “absolutely ridiculous”, it simply runs afoul of our sense of justice.

Hopefully, upon remand to the immigration board, the new panel will 1) consider scars as physical evidence in support of a claim of well-founded fear of persecution (actual past persecution is the most compelling evidence of a forward-looking fear); and 2) the new panel will determine that Okoli is a member of the paricular social group of Nigerian homosexuals (known or otherwise), a designation sufficient to establish his fear of persecution.

Let’s hope that Okoli and all who find themselves similarly situated see their rights vindicated!

And who says my years in law school were a waste?

WTF? What an insanely backwards society where someone who is gay can be charged with such “crimes”. I feel very badly for the GLBT community of Africa when I hear such things.