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by Arshy Mann/Daily Xtra

Rolston Ryan, a gay asylum seeker from St Kitts and Nevis, will get to stay in Toronto at least a little bit longer.

The Federal Court has overturned a decision from the Refugee Appeal Division that found Ryan was not refugee. Ryan’s case will go back to the RAD, the third time he will make his case to that tribunal.

Sex between men is illegal in St Kitts and Nevis and can result in up to 10 years in prison. The RAD had concluded that the law is “rarely enforced,” and therefore that there was no evidence that Ryan couldn’t go to the police for protection.

But Judge Anne Marie McDonald found that the RAD had no basis upon which to make the assumption that the law isn’t enforced.

“The RAD referenced the National Documentation Package for St Kitts,” she wrote. “There is however no statement in the National Documentation Package that such laws are rarely enforced.”

Instead, McDonald argued that the panel came to this conclusion based on evidence that laws criminalizing same-sex contact are rarely enforced in Antigua and Barbuda. While Antigua and Barbuda is only about 100 kilometres from St Kitts and Nevis, they are two entirely different countries with different legal systems and police forces.

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“There was no evidentiary basis for finding that there was “relaxed enforcement” of St Kitts’ law against sex between men,” wrote McDonald.

Unlike many queer asylum seekers, Ryan’s sexual orientation has never been in question. Instead, immigration officials have contended that there is no evidence that St Kitts and Nevis is unable to protect its LGBT citizens. In refugee law, it’s up to the asylum seeker to prove that the state is unable or unwilling to provide them with protection.

Ryan says he was stabbed and beaten multiple times in St Kitts and Nevis for his sexual orientation. He went to the police, but Ryan says they did not follow through on any investigation.

Daily Xtra has spoken to three people who say they reported homophobic violence in St Kitts and Nevis. But the government denies any reports of anti-LGBT violence in the country.

Since coming to Toronto, Ryan has found employment and built a life that includes Joel Dick and Dara Douma, who consider him to be part of their family.