2024 RLLR 93
Citation: 2024 RLLR 93
Tribunal: Refugee Protection Division
Date of Decision: November 1, 2024
Panel: Richard Bernier
Counsel for the Claimant(s): Adetayo G Akinyemi
Country: Nigeria
RPD Number: MC3-55573
Associated RPD Number(s): MC3-55577, MC3-55581
ATIP Number: A-2025-00611
ATIP Pages: M/A
REASONS FOR DECISIONS
INTRODUCTION
[1] These are the reasons for my decisions in the refugee claims of XXXX XXXX XXXX (“the Principal Claimant”), of her minor daughter XXXX XXXX XXXX (“the female Minor Claimant”), and of her minor son XXXX XXXX XXXX (“the male Minor Claimant”), citizens of Nigeria, who are claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).
[2] The Principal Claimant was Designated Representative for the two Minor Claimants.
[3] In reaching these decisions, I considered and applied Guideline 9[1] on account of the diverse SOGIESC profile alleged by the female Minor Claimant. In coming to a decision in this claim, I was mindful of the challenges that the female Minor Claimant might face in presenting her case before the Board, especially given possible cultural considerations. I was also mindful of the importance of avoiding stereotypes, and of using appropriate vocabulary.
[4] As I considered that it was necessary to hear the firsthand testimony of the female Minor Claimant, given that her experience is central to these claims, I asked her to appear at the hearing despite being a minor (aged 15 years at the time of the hearing). Consequently, I also applied Guideline 3[2] on proceedings involving minors, ascertaining with Counsel at a pre-hearing case conference (per section 6.7.1 of Guideline 3) that the female Minor Claimant would be at ease testifying about her diverse SOGIESC profile in the presence of the Principal Claimant, and adopting a child-sensitive mode of questioning when eliciting her testimony.
ALLEGATIONS
[5] The Claimants’ allegations are fully set out in the Principal Claimant’s narrative [3], on which the Minor Claimants depend, and in the respective testimony of the Principal Claimant and female Minor Claimant.
[6] The Principal Claimant alleges that she and the Minor Claimants face harm from the police and from society in general in Nigeria because a powerful and politically connected local man “G” accuses the female Minor Claimant of corrupting his niece with homosexuality; because members of his household physically assaulted the female Minor Claimant, who was a 13-year-old at the time; and because, in reprisal for that perceived homosexual identity and influence, and in reprisal for the Principal Claimant’s efforts to bring G’s abuse of her child to the attention of the authorities, G uttered threats against the Principal Claimant and the female Minor Claimant, and caused the Principal Claimant’s school (one that she founded and worked at) to be permanently shut down.
DETERMINATION
[7] I find that the Claimants are Convention refugees, as they have established that they have a well-founded fear of persecution related to Convention grounds in Nigeria.
ANALYSIS
Nexus
[8] I find that the female Minor Claimant’s allegations establish a nexus to the Convention ground of people facing persecution based on their membership in a particular social group (diverse SOGIESC profile), and that the Principal Claimant and male Minor Claimant’s allegations establish a nexus to the Convention ground of members of a particular social group (persons targeted because of a family member’s real or imputed sexual orientation). I have therefore analyzed their claims pursuant to section 96 of the IRPA.
Identity
[9] I find, on a balance of probabilities, that the Claimants have established their personal and national identities by their testimony and by the identification documentation before me, namely copies of their respective Nigerian passports.[4]
Credibility
[10] I find that the Principal Claimant was a credible witness. She spoke spontaneously, with detail, without embellishment, and without notable discrepancies, about her work as an educator, her life in Nigeria, her meeting with G and G’s wife and their subsequent interactions, her daughter’s experiences, and the subsequent consequences for her family and her school.
[11] I find that the female Minor Claimant too was a credible witness, and that she testified spontaneously, with detail, without embellishment, and without notable discrepancies about the events of XXXX XXXX, 2023.
[12] Consequently, I find on a balance of probabilities that on XXXX XXXX, 2023, the female Minor Claimant was caught kissing G’s niece S (a female friend her own age) by an adult member of G’s household, and that this unleashed accusations of homosexuality against her, as well as a physical assault that required treatment in hospital.
[13] I further find on a balance of probabilities that, when the Principal Claimant sought justice in the matter, confronted G with the incident on XXXX XXXX, 2023, and reported it to Nigerian authorities on XXXX XXXX, 2023, G responded by uttering threats and warnings against her for tarnishing his reputation, and began to circulate accusations that she was promoting homosexuality in her school; that her school was subsequently abruptly closed on G’s orders on XXXX XXXX, 2023 and has not reopened; and that on the occasion the school was raided, and during a subsequent raid on her home, the police indicated that they were looking for the Principal Claimant.
[14] The Principal Claimant’s account of the closing of her school by the police was corroborated by an administrator of the school who was on site on the day it was raided. The administrator wrote a letter, which the Principal Claimant submitted in evidence,[5] that refers to the forced closure of the school. The administrator appeared as a witness during the hearing, and answered my questions clearly, in detail, and without hesitation; his account corroborated the Principal Claimant’s.
Well-Founded Fear of Persecution
[15] I find that the Principal Claimant has established that she and the Minor Claimants have a well-founded fear of persecution in Nigeria as a consequence of the female Minor Claimant’s diverse SOGIESC profile and the Principal Claimant’s actions to support her.
The female Minor Claimant
[16] The Claimants testified that G’s wife stumbled upon her niece kissing the female Minor Claimant, instructed her staff to beat the female Minor Claimant and turn her out of their home, and that G has subsequently denounced the female Minor Claimant and her family for promoting homosexuality and introducing it into his home.
[17] The objective evidence confirms that persons believed to be LGBT face significant dangers and disadvantages in Nigeria.[6] Moreover, I note that Guideline 9 directs decision-makers to be mindful that the harassment and discrimination faced by individuals with diverse SOGIESC profiles may cumulatively amount to a well-founded fear of persecution. The Guideline lists a few scenarios, including restrictions on employment, housing, intimidation, and harassment. I find the evidence noted above corroborates that the female Minor Claimant would face a serious possibility of discrimination amounting to persecution in Nigeria on account of her diverse SOGIESC profile that has become generally known in her community in Nigeria and on account of G’s manifest hostility to her for the threat she poses to his reputation. Therefore, I find the female Minor Claimant’s subjective fears are objectively well-founded and forward-facing.
The Principal Claimant and male Minor Claimant
[18] I find that the Principal Claimant and the male Minor Claimant are at risk because of their family association with the female Minor Claimant and because of the Principal Claimant’s advocacy on her behalf.
[19] A Response to Information Request[7] indicates that “family members of sexual minorities, including spouses, parents, children and siblings, can face ostracism, stigmatization and embarrassment from community members and other extended family members. Family members of sexual minorities can be cut off from their community, and they can be insulted and assaulted by community members.” The report goes on to suggest that “whether or not family members of sexual minorities face risks depend on whether the person who is a sexual minority is public about their sexuality, is an activist who is “widely known,” and whether the family members are “openly in support” of the person who is a sexual minority.”
[20] The Principal Claimant has not only openly supported her daughter who has a diverse SOGIESC profile, but G acted decisively in reprisal against the Principal Claimant after she objected to his household’s treatment of her daughter and after she reported the actions of his household against her daughter. G abruptly shut down her school, depriving its teachers and staff of their livelihood and interrupting the education of almost 200 students. During her confrontation with G, the latter used derogatory epithets to describe the female Minor Claimant and threatened to destroy the Principal Claimant and her family. Therefore, on a balance of probabilities, I find an objective basis for the Principal Claimant’s and male Minor Claimant’s fear.
State Protection
[21] States are presumed capable of protecting their citizens, except when the state is in complete breakdown. Nigeria is not in complete breakdown and, as such, is presumed to be capable of protecting its citizens. To rebut this presumption, the onus is on the Claimants to establish, on a balance of probabilities, through clear and convincing evidence, that state protection is inadequate. I find that they have rebutted this presumption.
[22] The UK Home Office Country Policy and Information Note[8] report notes that there is no legal protection against discrimination in Nigeria for LGBT persons, who lack access to justice for human rights violations and other crimes against them. The DFAT Country Information Report 2020 observed that “there have been a number of widely reported cases in recent years in which LGBTI individuals have been arrested on the basis of their perceived sexual orientation or gender identity.” The adoption of the Same-Sex Marriage Prohibition Act (SSMPA) entrenches the hostility of Nigerian authorities against persons with diverse SOGIESC profiles. The SSMPA effectively renders illegal all forms of activity supporting or promoting LGBT rights.
[23] Police hostility to the female Minor Claimant’s family is not a mere possibility: the police in Nigeria have already heavy-handedly penalized the Principal Claimant for supporting her daughter by shuttering the school she founded and led for more than a decade and have been seeking her at her home in Benin City.
[24] On a balance of probabilities, I find that the Claimants are unable or, by reason of their fear, unwilling to avail themselves of state protection in Nigeria, and thus that the presumption of the state protection of the Claimants has been rebutted.
Internal Flight Alternative
[25] For the reasons provided below, based on an analysis under section 96 of the IRPA, I conclude that the Claimants do not have viable Internal Flight Alternatives (IFA) in the areas I proposed, namely Ibadan or Port Harcourt.
[26] The test for assessing an IFA is two-pronged and is set out as follows in the Federal Court of Appeal decision in Rasaratnam.[9]
i. The Board must be satisfied on a balance of probabilities that there is no serious possibility of the Claimant being persecuted in the part of the country to which it finds an IFA exists and/or the Claimant would not be personally subject to a risk to life or risk of cruel and unusual treatment or punishment or danger, believed on substantial grounds to exist, of torture in the IFA.
ii. the conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable in all the circumstances, including those particular to the claimant, for her to seek refuge there.
[27] The Claimants testified that it would not be possible to relocate to the proposed IFAs as G’s political connections, together with police corruption, make it possible for him to track and harm them anywhere in Nigeria; and that his motivation to do so is demonstrated by the threats and epithets he has uttered against them and by his heavy-handed actions to intimidate them.
[28] I note further that, even apart from G’s personal animus, as already noted above, the objective documentation confirms that the female Minor Claimant’s diverse SOGIESC profile exposes her and her family to a serious possibility of persecution everywhere in Nigeria.
[29] Based on the above, the proposed IFAs fail the first part of the test and I therefore find that there is no viable internal flight alternative for the Claimants.
CONCLUSION
[30] Having considered all the evidence, I find that the female Minor Claimant faces a serious possibility of persecution based on her membership in a particular social group (persons with a diverse SOGIESC profile), and that the Principal Claimant and male Minor Claimant face a serious possibility of persecution based on their membership in a particular social group (persons targeted because of a family member’s real or imputed sexual orientation).
[31] I find therefore that the Claimants are Convention refugees pursuant to section 96 of the IRPA. Their claims are accepted.
——— REASONS CONCLUDED ———
[1] Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics.
[2] Chairperson’s Guideline 3: Proceedings Involving Minors at the Immigration and Refugee Board.
[3] Document 2.1 –Basis of Claim Form and Narrative for MC3-55573.
[4] Information from the referring Canada Border Services Agency (CBSA)/Immigration, Refugees and Citizenship Canada (IRCC): Copy of Principal Claimant’s Passport; copy of female Minor Claimant’s Passport; copy of male Minor Claimant’s Passport.
[5] Document 4 – Claimants’ Evidence – C8, Letter from Administrator with photo ID
[6] National Documentation Package, Nigeria, 31 May 2024, tab 6.1: Anti-LGBTQ vigilante groups, including their objectives, structure, activities, and areas of influence; response of the authorities and state protection (2018–October 2020). Immigration and Refugee Board of Canada. 29 October 2020. NGA200343.E; National Documentation Package, Nigeria, 31 May 2024, tab 6.2: Nigeria. State-Sponsored Homophobia 2019. International Lesbian, Gay, Bisexual, Trans and Intersex Association. Lucas Ramón Mendos. March 2019; National Documentation Package, Nigeria, 31 May 2024, tab 6.3: Social Perception Survey on Lesbian, Gay, Bisexual and Transgender Persons Rights in Nigeria. The Initiative for Equal Rights. 2023; National Documentation Package, Nigeria, 31 May 2024, tab 6.5: Not dancing to their music: The Effects of Homophobia, Biphobia and Transphobia on the lives of LGBT people in Nigeria. Bisi Alimi Foundation. Bisi Alimi et al. January 2017; National Documentation Package, Nigeria, 31 May 2024, tab 6.9: 2023 Report on Human Rights Violations Based on Real or Perceived Sexual Orientation, Gender Identity/Expression and Sex Characteristics (SOGIESC) in Nigeria. The Initiative for Equal Rights et al. Chimdimma Ike. 2024; National Documentation Package, Nigeria, 31 May 2024, tab 6.11: The Situation of Sexual and Gender Minorities in Nigeria (2014-2018). Immigration and Refugee Board of Canada. February 2019; National Documentation Package, Nigeria, 31 May 2024, tab 6.12: Country Policy and Information Note. Nigeria: Sexual orientation, gender identity and expression (SOGIE). Version 3.0. United Kingdom. Home Office. February 2022.
[7] National Documentation Package, Nigeria, 31 May 2024, tab 6.11: The Situation of Sexual and Gender Minorities in Nigeria (2014-2018). Immigration and Refugee Board of Canada. February 2019.
[8] National Documentation Package, Nigeria, 31 May 2024, tab 6.12: Country Policy and Information Note. Nigeria: Sexual orientation, gender identity and expression (SOGIE). Version 3.0. United Kingdom. Home Office. February 2022.
[9] Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.).