2023 RLLR 203
Citation: 2023 RLLR 203
Tribunal: Refugee Protection Division
Date of Decision: December 20, 2023
Panel: Sarah Gebrenegus
Counsel for the Claimant(s): Melissa Singer
Country: Nigeria
RPD Number: TC3-25509
Associated RPD Number(s): N/A
ATIP Number: A-2024-01010
ATIP Pages: N/A
DECISION
[1] MEMBER: This is the decision for XXXX XXXX XXXX, file number TC3-25509. As I have said, I have considered your testimony as well as the other evidence in the case, and I am ready to render my decision orally. I have considered and applied Guideline 9 Relating to Sexual Orientation, Gender Identity and Expression of Sex Characteristics, which is also known as SOGIESC guidelines. You do claim to be a citizen of Nigeria, and are claiming refugee protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act. I find that you are a Convention refugee for the following reasons.
[2] Your allegations can be found in your Basis of Claim form which is found in Exhibit 2. You alleged you are a citizen of Nigeria, and fear persecution by your former partner’s fiancé, your community, as well as the Nigerian police because of your sexual orientation as a lesbian. You further allege that there is no state protection for you, or an internal flight alternative anywhere in Nigeria.
[3] Your personal identity as a citizen of Nigeria has been established by your testimony and the supporting documentation found in Exhibit 1, specifically your Nigerian passport.
[4] I do find that there is a link between what you fear and one (1) of the five (5) convention grounds because of your membership in a particular social group as a lesbian.
[5] Next I will turn to the issue of credibility. I find you to be a credible witness and believe what you have alleged in support of your claim. When a claimant affirms to tell the truth, this creates a presumption of truthfulness unless there is evidence to the contrary. You have been consistent with your narrative as submitted in your Basis of Claim and credible in your allegations and evidence. In your testimony, your descriptions of your same sex relationships and your sexual orientation was consistent with your narrative. You were able to provide spontaneous and detailed testimony about how you discovered your sexual orientation as well as the two (2) same sex relationships you had while you were in Nigeria. For both of these same sex partners that you had while you were in Nigeria, you were asked to provide specific details about your partners and your relationships, and you did so credibly.
[6] You testified about how you met your partners, how your relationships with them began, the activities you enjoyed partaking in with your partners, memorable moments shared, and other specific details about your relationships. You also provided credible testimony about how your sexual orientation was discovered by your ex-partner’s fiancé and what you faced as a result of this. You testified that you left for Canada days after this incident, and provided testimony about your ex-partner’s fiancé is still looking for you, and you were notified by your friend and cousin about this. You also provided letters of support from your friend, cousin, and mother in Nigeria, which establishes your allegations that you are a lesbian. These letters of supports can be found within Exhibit 6. I note that you have submitted an Affidavit from your best friend, which indicates that you are a queer woman. Within the hearing, I did ask how you were able to obtain this Affidavit as Exhibit 3, Item 6.10, indicates that there is evidence that says it would be strange for a person to swear to an Affidavit about sexual orientation because these are crimes in Nigeria and because of the high level of homophobia there.
[7] You testified that you are not with your best friend, and your best friend told you that she would go to the courts to have this completed. I do not find this reasonable as the same item within the NDP states that the Nigerian Notary Public Commissioners of Oaths may refuse to participate in such an activity due to the same homophobia on criminalization. Moreover, it states that high levels of homophobia and the criminalization of same sex practice and relationships would prevent LGBT individuals or allies from swearing such an Affidavit with a Nigerian Notary Public Commissioner of Oaths. They would likely fear outing, which can lead to loss of family, friends, work, education. There would be violence, arrest, blackmail and extortion. Therefore, I placed low weight on this Affidavit from your best friend.
[8] Moreover, you did testify about your involvement in LGBTQ organizations, AGIR, and XXXX LGBTQ+ community centre. You did provide photographs of yourself at Pride events in XXXX. When I asked you for additional information pertaining to these images submitted, you testified thoroughly about your experience on that day, as well as how this impacted you. Additionally you provided letters of support from the LGBTQ organizations you are involved with in Canada, which establishes that you are a participant of these organizations. These documents that I have further mentioned can be found within Exhibit number 6.
[9] I find that the evidence submitted, aside from the Affidavit, was credible and trustworthy, and I assign a full weight in support of your allegations. I therefore find, on a balance of probabilities, that you are a credible witness and have found that you have established that you are a lesbian.
[10] I do further find that, on a balance of probabilities, you have an objective basis for your fear because of the documented conditions for Nigeria, as per the evidence in Exhibit 3, the NDP for Nigeria. Item 2.1 of this NDP reads that, “The law effectively renders illegal all forms of activity supporting or promoting lesbian, gay, bisexual, transgender, queer, and intersex LGBTQI+ rights.” According to Item 1.4, “The law states that anyone found to have entered into a same sex marriage or civil union can be punished with a maximum of 14 years in prison. Those found guilty of solemnization of such a union, or supporting LGBT organizations, participating in such associations or directly, indirectly, publicly showing amorous same sex relations can be punished with 10 years imprisonment.” Item 6.2 of the NDP states that, “The harsh laws in force in Nigeria and its affects on LGBT people have been widely documented. In fact, Nigeria has been cited as one of the most homophobic countries in the world, not only due to the severity and comprehensiveness of its legislation that criminalizes same sex relations, but also for the discriminatory and violent treatment given to LGBTI people in the form of arbitrary arrests, blackmail, physical and psychology abuse by the police and kidnapping, extortion, harassment, sexual attacks, subjection to conversion therapies, pressure to marry, and involuntary outing by family and society members.” I find that, on a balance of probabilities, your subjective fear has an objective basis. Therefore I find that you have a well-founded fear of persecution due to your sexual orientation.
[11] The next issue is state protection. As same sex sexual activity is criminalized in Nigeria, and since homophobic violence continues with impunity, I find that there is clear and convincing evidence that adequate state protection would not be available to you.
[12] The other issue is internal flight alternative. This is also known as IFA. Given that same sex sexual activity is criminalized throughout Nigeria, I find that there is nowhere in Nigeria where you would not face a serious possibility of persecution based on your membership in a particular social group as a lesbian. As the test for an IFA fails on the first prong, I find that there is no viable IFA for you.
[13] Based on the totality of the evidence, I find you to have a serious possibility of persecution in Nigeria due to your membership in a particular social group as a lesbian, and therefore to be a Convention refugee, your claim is therefore accepted.
——— REASONS CONCLUDED ———