Categories
All Countries Nigeria

2019 RLLR 138

Citation: 2019 RLLR 138
Tribunal: Refugee Protection Division
Date of Decision: September 11, 2019
Panel: D. McKeown
Counsel for the Claimant(s): M. Mary Akhbari
Country: Nigeria 
RPD Number: TB8-26572
ATIP Number: A-2021-00256
ATIP Pages: 0000117-000120


DECISION

[1]       MEMBER: I’ve considered the testimony and evidence and I’m now prepared to render a decision.

[2]       The claimant is [XXX]. He seeks refugee protection against Nigeria pursuant to Sections 96 and 97 of the Immigration and Refugee Protection Act.

[3]       For the following reasons the panel finds the claimant is a Convention refugee and this claim is accepted.

[4]       COUNSEL: Just relax. Like sit back and chill out. Okay.

[5]       MEMBER: Should I … should I do the rest in writing perhaps?

[6]       COUNSEL: No, you can read it.

[7]       MEMBER: I’m … I’m just going to keep talking from here.

[8]       This claim was based on the following allegations. The claimant is bisexual. He left Nigeria in [XXX] 2017 when pressure from the community and his family became too much to bear any longer regarding his sexual orientation.

[9]       The claimant arrived in the United States on [XXX], 2017 and thereafter arrived in Canada on [XXX], 2018. The claimant signed his Basis of Claim on September 21st, 2018.

[10]     The panel took into consideration the Chairperson’s guidelines on sexual orientation and gender identity and expression when considering the process of this hearing and … and assessing the facts of this case.

[11]     The identity of the claimant was established on the basis of his Nigerian passport. The original of which was seized by the Minister.

[12]     The panel’s only significant concern in this claim was his failure to seek protection in the United States. The claimant was an educated and successful businessman. His friends in the United States knew about his sexual orientation. Instead of seeking legal means to remain in the understood he colluded with his friends to engage in a fake marriage of convenience so that he could immigrate there.

[13]     The claimant also explained that he feared the American Government and president who is not welcoming of refugees.

[14]     The panel does not accept these explanations. The United States is a democratic country which upholds the rule of law. They are Convention signatory and maintain a functioning asylum determination system.

[15]     It is simply not credible that the claimant took no steps to secure his own safety and protection in the United States until just before his visa was set to expire. The claimant’s failure to seek protection in the United States does undermine his allegations of subjective fear and the credibility of this claim. Having said that, this concern being the only significant concern in this claim the panel is prepared to give the claimant the benefit of the doubt.

[16]     The claimant is entitled to the presumption that he has been truthful unless there is reason to believe otherwise. While this failure to claim is concerning, the panel cannot say that it undermines the credibility of this claim in its entirety.

[17]     In all of the respects the panel found that the claimant was credible. The claimant spoke about his relationships in Nigeria, both with men and his wife. He spoke about how he lived and how he managed to keep his sexuality hidden from the community.

[18]     The claimant answered difficult questions posed by the panel. And where the panel had concerns about the narrative, those concerns were answered with reasonable and plausible explanations. There were no inconsistencies or embellishments.

[19]     The panel found the claimant’s testimony was compelling and the claimant was amply … the claim was amply supported by objective documentation including extensive proof that this ordeal has taken a severe toll on the claimant’s mental health.

[20]     These supporting aspects of the claim were not outweighed by his failure to claim in the United States.

[21]     The National Documentation Package for Nigeria supports this claim. The panel has access to reliable sources such as the US DOS report and the UK Home Office report. Each of which are clear about the consequences of same sex relationships in Nigeria. Punishments can include vigilante justice and 14 years in prison, for example.

[22]     Whereas the State is the agent of persecution, the claimant has rebutted the presumption that State protection would be adequate or forthcoming.

[23]     Likewise, there is no location in Nigeria the claimant could go where he would not face a serious possibility of persecution.

[24]     For all these reasons the panel finds this claim is credible. The claimant’s fear is well-founded. The claimant faces a serious possibility of persecution in Nigeria on account of his membership in a particular social group being a bisexual person.

[25]     The claimant is a Convention refugee and this claim is accepted.

[26]     Thank you very much.

[27]     COUNSEL: Thank you.

[28]     MEMBER: Thank you both very much. Thank you, sir, for being here and I know that this was difficult for you. Go home and get some sleep.

[29]     CLAIMANT: Thank you so much.

[30]     MEMBER: Thank you very much. Everyone have a good afternoon.

———- REASONS CONCLUDED ———-

Categories
All Countries Nigeria

2019 RLLR 38

Citation: 2019 RLLR 38
Tribunal: Refugee Protection Division
Date of Decision: December 10, 2019
Panel: Isis van Loon
Country: Nigeria
RPD Number: VB9-00362
ATIP Number: A-2021-01124
ATIP Pages: 000217-000225


— DECISION

[1]       PRESIDING MEMBER: [XXX], the principal claimant, and [XXX], the minor claimant, seek refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. I maintain the designation of [XXX] as the representative for the minor claimant pursuant to subsection 167(2) of the Act in Rule 20 of the Refugee Protection Division Rules. These claims were joined according to Rule 55 of the Refugee Protection Division Rules. When rendering my Reasons, I have considered and applied the Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution.

ALLEGATIONS

[2]       The principal claimant alleges that if she returns to Nigeria she will be forced to marry her brother-in-law, who has sexually assaulted her a number of times. The brother-in-law will also take her son and force him to undergo rituals. As well, the claimants are at risk from Fulani herdsmen, who burned down their village in [XXX] 2016, which forced the claimant to live with her missing husband’s family in their village.

[3]       I find that the claimant has established she faces a serious risk of persecution on a Convention ground in Nigeria. My reasons are as follows. I also find the minor claimant faces a serious risk of persecution on a Convention ground.

IDENTITY

[4]       The claimants’ identities and citizenship as nationals of Nigeria was established by the principal claimant’s testimony and supporting documentation filed, including certified true copies of their passports in Exhibit 1.

CREDIBILITY

[5]       The principal claimant testified in a straightforward manner with no inconsistencies in her testimony or contradictions between her testimony and the other evidence before me. I found her to be a credible witness and, therefore, have accepted as generally true the facts that she alleged in support of her claim. Unless I specifically note in my analysis, as I said, I found her generally credible and the minor claimant did not testify.

[6]       The principal claimant provided the following relevant and probative documents in Exhibit 4. There was a Nigerian Police report from [XXX], 2015, reporting her missing husband; a medical report from [XXX], 2017, after a sexual assault, and numerous affidavits from friends and family, all attesting to the treatment by the principal claimant’s brother-in-law, as well as her subsequent actions.  I found those documents were relevant and served to corroborate the principal claimant’s core allegations, in terms of nexus, I found the persecution the principal claimant faces has a nexus to the Convention ground of membership in a particular social group, as a woman at risk of sexual violence and forced marriage. With the minor claimant, there’s a nexus to that of a child at risk of literal abuse.

[7]       In order to be considered a Convention refugee, a claimant has to demonstrate a well-founded fear of persecution, including subjective fear and objective basis for that fear. Based on the testimony, supporting documents and country condition documents, I found the claimants do have a well-founded fear of persecution for the following reasons.

[8]       In terms of subjective fear, the principal claimant initially attempted to resist the forcible advances of her brother-in-law, [XXX]. After a sexual assault by [XXX] on [XXX], 2017, she escaped with the minor claimant to [XXX]. [XXX] located her there within a week, continued to threaten her. With the assistance of her friend, she made arrangements to leave as quickly as possible and did so when they had sufficient funds, arriving in the USA on [XXX], 2017.

[9]       Fearing Trump policies against refugees, she decided to come to Canada, which she did [XXX] of 2017, and claimed asylum. Based on her actions and the timing thereof, as well as her credible testimony, I found the claimants have adduced sufficient credible evidence to establish a subjective fear of persecution in Nigeria.

[10]     The principal claimant testified about the series of events that started with the disappearance of her husband on [XXX], 2015. She reported this to the police and checked in with them, but no progress on the investigation had occurred. When the Fulani burnt her home on [XXX], 2016, she fled to her husband’s village to stay with her in-laws there. In [XXX] of 2016, her brother-in-law [XXX] sexually assaulted her. On [XXX], 2017, the family had a meeting where they decided that tradition should be followed or bad things would happen in their village and to them and this meant that the principal claimant would have to marry her brother-in-law [XXX] as they believed by that time that her husband was deceased.

[11]     She refused to follow this tradition and fled after [XXX] sexually assaulted her with a weapon on [XXX], 2017. Sam located the claimants in [XXX] about a week later and threatened them again that they needed to undergo the ritual and the principal claimant needed to marry him. She testified about the specific ritual that was to be undergone by both her and her son, where they were to be cut and marked in various areas and have cow’s blood and other things rubbed into these during an event that would take about three days.

[12]     She also spoke of [XXX] (phonetic), a woman from her husband’s village that she knew. She met her after she got married and a similar type of thing happened. Her husband went missing at the hands of the Boko Haram or the Fulani herdsmen and, according to tradition, the people would force the woman to marry the husband’s brother. This woman, however, [XXX], she refused and she was killed when she refused to marry the brother by the brother. This was in 2014 and apparently she knew that [XXX] had gone to the police and the police said that they couldn’t do anything and said it was just a family matter. In effect, the country documentation confirms that these traditional things are often treated as a family-related incident and the police tend not to get involved. The country documentation evidence also confirms that sexual violence against women is common and that ritual activities continue. Based on all the evidence before me, I found the claimants would face a serious possibility of persecution if the were to return to Nigeria and be found by [XXX].

[13]     In terms of state protection, except in situations where a state is in complete breakdown, states must be presumed capable of protecting their citizens. I found, however, that adequate state protection would not be reasonably forthcoming in this particular case. The principal claimant described how she had not reported the sexual assaults by [XXX] as she was afraid the same thing would happen to her as happened to Nagosi and she described how [XXX] actually threatened to kill her if she did report to police.

[14]     There are a number of laws that exist to protect women against violence and these have been strengthened by the Violence Against Persons Prohibition Act in 2016. However, they are not effectively implemented in practice and are quite variable. There is no comprehensive law for combatting violence against women and, as a result, victims and survivors had little or no recourse to justice, according to the NDP 2.1. Police response is often poor and despite the existence of some laws, the persecution rates for domestic violence are low. It’s uncommon for cases to reach persecution. The burden of proof is on the victim according to NDP 5.3. Additionally, there are few shelters and restraining orders provide minimal, if any, protection in practice.

[15]     In a Response to Information Request from the IRB, a doctoral candidate states about victims of ritual practices that to his knowledge the police response is not recognized and institutionalized. He further stated that based on his direct observation and research experience over five years in Southern Nigeria, that Nigerian police officers tend to be discriminatory in their treatment of victims of ritual practices, particularly for women, and that this attitude is formed by customary norms and the subjugation of women in most Southern Nigerian societies.

[16]     The same source added that a lack of trust in the police also inhibits the reporting of ritual practices, especially by women. Furthermore, according to this source, police officers are themselves often a part of the culture in which ritual practices take place and they can have difficulty recognizing whether ritual practices are criminal or not and they weigh the evidence also against the religion rights and intent of the ritual practices.

[17]     Similarly, another source noted that because Nigerian police officers themselves come from communities where different rituals apply, they have to respect the culture and traditions and they’re reluctant to provide protection to someone who is refusing to undergo a ritual. So I find that in terms of both the sexual violence and the traditional and ritual aspects of this that state protection would not be adequate nor reasonably forthcoming for the claimants in this case and, therefore, the presumption of state protection is rebutted.

[18]     At the beginning of the hearing, I proposed several cities as internal flight alternatives, Benin City, Port Harcourt or Abuja. The principal claimant testified that there are family members of her in-laws in both Port Harcourt and Abuja, so I primarily focused from then on, on Benin City. An internal flight alternative arises when a claimant, who otherwise meets all the elements of the definition of a person in need or protection or as a Convention refugee in their home area of the country, nevertheless is not in need of protection because they would live safely elsewhere in that country.

[19]     There is a legal test, which has two prove to be satisfied that the claimants would not face a serious possibility of persecution in the part of the country in which I found an IFA exists and 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 claimants, for them to seek refuge there.

[20]     If either prong of the internal flight alternative test fails, then there is no viable internal flight alternative. I’ve started, in fact, with the second prong about whether or not the proposed IFAs are reasonable. At the beginning of the hearing I proposed, as I said, Port Harcourt, Abuja and Benin City, but primarily focused on Benin City. Having found the claimants face a serious possibility of persecution from the agent of harm, I have turned to the second prong of the IFA test, the test used in Canadian refugee jurisprudence, to assess whether a claimant could travel to and remain in a safer area of their countries, whether it would be unduly harsh to expect the claimant to do so. There’s a very high threshold for this unreasonableness test. It requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in travelling to or relocating to a safe area and it requires actual and concrete evidence of such conditions.

[21]     I’ve considered whether it would be reasonable to expect the claimants to travel to and relocate in any of the proposed IFAs. An IFA has to be realistically accessible. If a claimant would encounter physical danger travelling there, if they would encounter persecution while en route or they would otherwise be barred from travelling to an area then an IFA location would not be viable. However, the Nigerian Constitution provides for the right to travel within Nigeria. The country condition documents show that Nigerians, including women, can and do move freely throughout most of the country, including the IFA proposed cities.

[22]     With respect to the burden of proof, the Court of Appeal in Rasaratnam (phonetic) has held that once an IFA is raised, the onus is on the claimant to show that they don’t have one. The burden, as I said, is fairly high in order to show that an IFA is unreasonable. In fact, the Federal Court of Appeal stated that to show an IFA is unreasonable requires nothing less than the existence of conditions jeopardizing the life and safety of a claimant in relocating to that place.

[23]     The Chairperson identified the Refugee Appeal Division decision for TB7-19851 as a jurisprudential guide. I’ve considered this guide and the decision of the Refugee Appeal Division in which the jurisprudential guide in question is based analyzes the viability of an internal flight location within Nigeria for single women. That concludes more broadly than internal relocation and Nigeria is generally considered to be viable for refugee claimants fearing non-state actors. In this case, the RAD decision established there are several large multilingual, multi-ethnic cities in South and Central Nigeria which include the IFAs mentioned, where persons fleeing non-state actors may be safely able to establish themselves, depending upon their particular circumstances.

[24]     There’s a non-exhaustive list of factors that may be considered in determining whether the conditions in an IFA render it objectively unreasonable for the claimant. These factors are travel, transportation, language, education, employment, accommodation, healthcare, culture, (indiscernible) and religion. Additionally, the Chairperson’s Gender Guidelines specifically instruct decision makers to consider whether and how these factors affect women in the IFA.

[25]     The cm before me is both a single woman and the mother of a young son, so she’s a single mother, unlike the single woman who had no children in the jurisprudential guide case. The principal claimant has some post secondary education, but in this case her work experience is quite limited. She worked partly while as a student and then on her husband’s farm after she was married. So she does have some experience in farming.

[26]     The principal claimant testified, and the country documents support this, there are real difficulties for women in obtaining employment and housing and that this is exacerbated when a woman does not have family assistance and support. Family can help members to find housing, as well as work. In Nigeria, women need adult male members of family or other males to provide references and sign for them, particularly with respect to housing. Usually this is done by male family members.  The claimant herself stated that if she had family in the IFA she could rely upon them to care for her son, if she was able to find work, and that she would need to support herself and her son. Her family has to date refused to support her and, in fact, advised her to follow the traditional practices that her brother-in-law has been demanding.

[27]     She initially fled to [XXX] to stay with her sister, but her sister turned her out. So her family has told her to follow traditional practices, marry [XXX] and undergo the ritual that will ensure her husband’s ghost did not return to haunt the family. I’m satisfied, on a balance of probabilities, that these claimants have no family support in Nigeria and this will negatively impact their ability to find housing and employment, as well as assisting with childcare.

[28]     According to the jurisprudential guide, unemployment is generally high in Nigeria and work can be difficult to find. There are more female-headed households in the south than in the north and it is generally easier for women to obtain work in the south than in the north but, quite frankly, this is not saying a lot and it certainly doesn’t say that it is easy for women to find work. The J.G. says that where a claimant has achieved post secondary education or has meaningful work experience, they may be in a better position of securing employment than the average Nigerian.

[29]     This claimant does have some post secondary education, but her Nigerian work experience is limited to farming and some past office work that she did as a student. Additionally, she has a young child, the minor claimant, in her care, and without family or contacts, she would have to find a way to ensure safe childcare while she worked if she was able to find work. She has no connections in the IFAs. She speaks a different dialect from the locals and she would face great difficulty in finding employment, which is sometimes based on indigeneship or family connections. The J.G. states that in order for a single woman to get a reasonable job in — they were talking about Port Harcourt or Ibadan in that case, or presumably other large cities, she would need to have the help of someone influential or rich and also that it is easier for single women with high education and high social status to use this status to give them access to people who are in power who could assist her to find work. I’m satisfied that the principal claimant, as a single mother, albeit with some degree of education, but with limited work experience and with no high status standing and, therefore, no connections that that would bring, she would face extreme difficulty in finding work.

[30]     The NDP 5.9 shows that it can be difficult for women to find housing, in part due to the cost and in part if they do not have male assistance. While the north of the country is once again even worse, the south is still very difficult for women. In particular, the ability to find gainful employment, according to NDP 13.1, is a key factor in finding housing. I’ve already discussed my views on the difficulty this claimant faces in finding employment and I am satisfied that without work she would have great difficulty in supporting herself and her son in terms of housing, as well as food and other necessary item and the Nigerian state has little to no social supports available to assist her.

[31]     The claimant stated the indigeneship would be a factor, making it difficult to relocate. The documents show that this is less of an issue in large cities, such as Benin City. However, there are difficulties for those who are not indigenes. The EASO states that indigenicity facilitates settling in a given area.  However, it does not constitute a requirement. This document notes that non-indigenes, such as the claimants, without familial connections or financial means, may find relocation more difficult. The claimant also testified that language would be an issue as she does not speak local dialects. While she does speak some English and, in fact, testified occasionally in English during the hearing, I am still cognizant that despite English being an official language of Nigeria, her inability to speak the local dialects would also put her at a disadvantage among those who do not speak English and who might potentially assist her with housing or employment.

[32]     The claimant also testified that single mothers are frequently discriminated against and seen as sexually available, which leads them to experience high levels of sexual violence and sexual harassment. She said this was both through work and potentially with landlords. The country documents show that women in general and single women or women heading households do indeed experience high levels of this mistreatment, particularly when there are no family members, most likely male family members, to protect them. I accept as a single mother that the claimant would be more vulnerable to gender-based mistreatment than would a woman who was supported with or by a adult male and family.

[33]     In terms of religion, the country evidence shows that Christianity is widespread in Nigeria, particularly in the south, and thus I don’t find religion, in itself, to be a barrier to relocation. A recent Response to Information Request said that sometimes religious communities can assist in the process of resettlement in some of the similar cities to Port Harcourt, Lagos and Abuja. While religious community may, in fact, be helpful despite the principal claimant’s belief that it would be largely limited to the occasional donation of food, I’m not satisfied that we can rely on religious assistance to be sufficient to overcome the more serious impediments to the claimants in resettling that I have already mentioned with respect to lack of family support, housing and extreme difficulties in obtaining employment.

[34]     Finally, I further note that the principal claimant testified of having an anxiety attack which necessitated a 911 intervention here in Canada. Her demeanour during the hearing clearly demonstrated emotional fragility and she broke down several times during the hearing, necessitating time to compose herself in order to continue. Her emotional state is supported by a psychological assessment in which she was diagnosed with [XXX] and [XXX] in [XXX] of 2029. That’s Exhibit 4, pages 35 to 40. She has attended counselling as a psychologist recommended, based on their assessment and she said that she plans to continue.

[35]     Based on the psychologist’s findings, they concluded that, based on her trauma-related conditions with which they diagnosed her, it would impair her recovery if she had to return to Nigeria where she is convinced that [XXX] would find and harm her and the minor claimant. There are facilities for both basic medical and mental healthcare according to NDP 1.9. The country condition documents though show that Nigerians have to pay for healthcare, as well as education, and that access can be difficult for this reason. For a single mother with many impediments to finding access to money such as employment, I’m satisfied that she would face significant difficulties in accessing mental healthcare if she wished to continue treatment in Nigeria as well.

[36]     The claimant testified there would be difficulties with education for her child and that she would be unable to pay fees if she was not employed as the country condition document I’ve just referenced shows that education comes with costs and concerns that the minor claimant would be negatively impacted with respect to his basic education.  Having considered the conditions in the internal flight alternatives, particularly Benin City, and all the circumstances of this case, including those particular to the claimants, I find that the claimants have established on a balance of probabilities that it would be objectively unreasonable or result in undue hardship as those terms are understood in Canadian refugee law for them to seek refuge in the proposed IFAs of Benin City, Port Harcourt or Abuja.

[37]     Based on the totality of the evidence, I’ve concluded the claimants are Convention refugees and accordingly, I have accepted their claims.

— DECISION CONCLUDED

Categories
All Countries Nigeria

2019 RLLR 36

Citation: 2019 RLLR 36
Tribunal: Refugee Protection Division
Date of Decision: January 22, 2019
Panel: Michal Fox
Country: Nigeria
RPD Number: VB8-04811
ATIP Number: A-2021-01124
ATIP Pages: 000203-000209


[1]       PRESIDING MEMBER: [XXX], [XXX], and [XXX] claim to be citizens of Nigeria and the United States. You claim refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[2]       At the hearing the claimant was appointed the designative representative to the minor claimants, [XXX] and [XXX].

Allegations from the Basis of Claim forms, Exhibits 2.1 and 2.2

[3]       The claimant, [XXX] is a citizen of Nigeria. The claimant is Yoruba and is from the western part of Nigeria, from [XXX] (ph). The claimant is a devout Jehovah’s Witness. She attends the Kingdom Hall two times a week and preaches as well.

[4]       The claimant is the mother of the minor claimants, [XXX] and [XXX]. [XXX] is a citizen of Nigeria, being born there on [XXX], 2013. The minor claimant [XXX] is a US citizen, born in the United States on [XXX], 2017.

[5]       The claimant’s mother and father were from [XXX] – state, Nigeria. On [XXX] 2012 the claimant married her husband, [XXX]. He’s from Delta State and he is [XXX] by ethnicity.

[6]       The claimant’s family were quite hostile to the claimant. They were against this inter-tribal union and the claimant became a Jehovah’s Witness. She wasn’t born into that religion and the husband’s family rejected not only her but that their son and brother became Jehovah’s Witness as well before he married the claimant.

[7]       The claimant’s Ogun state ethnicity being Yoruba but mostly her religion is the main reason of their hatred toward her. On several occasions the claimant was attacked and beaten by the claimant’s family so that she would get away from her husband. Her husband’s sister threatened to kill her if she didn’t step away from the marriage and it is because of this that she developed psychological problems.

[8]       In [XXX] 2015, she had a heated confrontation with a sister-in-law and thereafter miscarried at ten weeks of pregnancy.

[9]       The claimant was verbally attacked so many times that she would go to her parents’ home in Ogun state for refuge. One time was in [XXX], 2017. Her husband’s family followed her there and set the house ablaze. Her room was set on fire and all of her personal documents were burned. The claimant’s family went to the police but they refused to get involved.

[10]     The claimant herself was born in to a different Christian religion or sect called Church of Christ Family and her own family rejected her for becoming Jehovah’s Witness. They turned against her. They burned her clothes. They burned her religious publications and study materials. She was beaten, denied access to food and locked out for attending Christian meetings.

[11]     Her father showed up at the Kingdom Hall and embarrassed her. Her father threatened to burn down the Kingdom Hall if the claimant did not leave there and he threatened to disown her for being part of the Jehovah’s Witness community.

[12]     She was forced out of her home and the elders of the church had to take her in. The claimant supported herself without her family’s support when she went for higher education.

[13]     Many occasions when the claimant’s husband and herself were going for the door to door ministry, his family members would mock them and throw rocks at them and yell insults. They became fearful that there were people going to kill them because of their religious beliefs.

[14]     The claimants left Nigeria, came to United States, where the minor claimant was born. The claimants thereafter came to Canada and applied for refugee protection.

For the claim of the minor claimant [XXX]

Determination

[15]     I find that the claimant is not a Convention refugee in that she does not have a well-established fear of persecution for a Convention ground in Nigeria. I also find that the claimant is not a person in need of protection in that her removal to Nigeria would not subject her personally to a risk to her life or to a risk of cruel and unusual treatment or punishment and in that there are no substantial grounds to believe that her removal to Nigeria will subject her personally to a danger of torture.

Analysis

[16]     The minor claimant is a citizen of United States. See Exhibit 1, her US birth certificate. As well, the claimant averred in Basis of Claim form that the minor claimant is a citizen of the United States.

[17]     At the hearing, in consultation with the claimant, who is the minor claimant’s designated representative, counsel stated that the claimant has no claim per section 96 and 97 against the United States.

Conclusion

[18]     For the foregoing reasons, I conclude that the minor claimant [XXX] is not a Convention refugee and not a person in need of protection and I therefore reject her claim.

The claims of [XXX]

Determination

[19]     I find that you are Convention refugees and that you do have a well-founded fear of persecution in Nigeria by reason of religion and race or ethnicity for the following reasons.

Analysis

[20]     Your identities as nationals of Nigeria are established by your testimony and supporting documentation filed, namely your Nigerian passports found in Exhibit 1.

[21]     I have found you to be a credible witness and I therefore believe what you have alleged in support of your claim. You testified in a straightforward manner and you corroborated your case with extensive documentary evidence, found in Exhibits 4 through 10.

[22]     I find your fears to be well-founded for the following reasons.

[23]     You have been attacked and even had part of your house burned down by family members due to you and your husband’s conversion to be Jehovah’s Witnesses over the years and also because of your husband’s family rejecting you due to your tribe being Yoruba while they are Osoko – O-S-O-K-O.

[24]     You’ve had stones thrown at you and at your husband when you were preaching your religion to others.  You’ve been threatened with death and abused verbally countless times. You also had a miscarriage due to the violence perpetrated against you for these very reasons and you still grieve this child to this day.

[25]     There is clear and convincing evidence before me that the state is unable or unwilling to protect you.

[26]     You filed police complaints on two times, see Exhibit 6 at page 3 and 4, and Exhibit 5 at page 16 and 18. Even neighbours filed police diary notices based on – to the police – about what they saw. Even when the agents of harm had been identified the police did nothing to investigate or take action.  It would be futile to expect protection in the future when the police, with the full evidence from even your neighbours, about who the agents of harm are, failed to take any action whatsoever in your case.

[27]     I have considered whether a viable internal flight alternative exists for you. On the evidence before me, I find that you would not be at risk in Port Harcourt. The claimants fear family members who reside in Delta, Lagos and Ogun state. She fears no one in Port Harcourt. The jurisprudential guide addressed this issue in decision TB7-19581. It states that those who fear non-state actors who have a viable internal flight alternative under such facts.

[28]     The claimant has no family members in Port Harcourt as well. She fears that perhaps family members of her husband would show up or visit Port Harcourt as Delta state is right next door, an hour away. I find that her evidence is speculative that such a risk of harm would take place. I thus find there’s no serious possibility of persecution in Port Harcourt.

[29]     However, on the evidence before me I find that it is objectively unreasonable in all the circumstance, including those particular to the claimants, for the claimants to seek refuge in Port Harcourt for the following reasons.

[30]     Psychological evidence is central to the question of whether an internal flight alternative is reasonable and cannot be disregarded. See the case of Cartaga — C-A-R-T-A-G-A – v. Canada, 208.FC.289.   In this case, the court noted that in considering whether internalflight alternative was unreasonable, the Board must take into account a claimant’s fragilepsychological state. See also Okafar v. Canada — O-K-A-F-O-R – 2011.FCl.002 andmore recently Kayhonini v. Canada-K-A-Y-H-O-N-I-N-I-2018.SC.1300.

[31]     In this case the claimant has a long history of mental health issues that only arose in her life after she converted to be a Jehovah’s Witness.  The psychological stress of losing her own family in this conversion compounded with the persecution she faced by her own family and her husband’s family, induced depression and psychosomatic illnesses since about 2013.

[32]     She’s been hospitalized for this in Nigeria. She received psychotherapy and has been medicated for her psychological condition since that time. The claimant continues to receive treatment here for these conditions. See Exhibit 4, page 10.

[33]     The [XXX] hospital in [XXX], in Exhibit 5 at page 4, specifically refers to when the claimant was hospitalized there for a week to address her psychological conditions that this was caused by the family violence towards here.

[34]     The report states that the violence perpetrated against the claimant by her in-laws on account of her religion and different ethnicity caused her poor sleep, headaches, weeping spells and low mood. The claimant was placed on anti-depressants. She deteriorated medically despite these interventions and had to change medications.

[35]     Even here in Canada, Exhibit 9, the claimant’s physician stated that her medical concerns today include depression and migraine type headaches, which were both pre-existing conditions diagnosed in Africa. The claimant is on various medications and to this day meets with her doctor every two to three months.

[36]     The claimant testified that because of all of her fears which started due the persecution she faced in Nigeria and with all of her worries and being rejected by everyone in her world, she would have epileptic attacks all over her body. Here in Canada she still has this condition but it is manageable with medication and ongoing assessment by her physician.

[37]     The claimant stated that with fears about Nigeria, she will be debilitated. She fears that she will run into someone from her family and they will tell others and that she will be attacked. With such a condition she would not be able to hold a job because she would miss more work because of her fears.

[38]     She had at times stopped working in Nigeria due to her – due to the physical condition that she suffered which was psychological in nature. The claimant also stated that she won’t be able to parent the minor claimant and her other child because she’d become so debilitated due to fear.

[39]     The claimant stated that with her fears that she is not safe in Nigeria, in Port Harcourt, just with those fears her psychosomatic symptoms will debilitate her and this is exasperated because of the claimant’s religion.

[40]     The claimant’s religion as Jehovah’s Witness requires her to go out as much as possible and spread the word. Jehovah’s Witness goes out every week, almost two days a week and weekends here in Canada, knocking on doors on strangers’ homes in unknown areas that are designated by her church. This would be the same, she did this also in Lagos, she did this in Ogun state, she did this in the United States. She would also have to do this – she would also want to do this and is required to do so in Port Harcourt.

[41]     She takes her children with her when she witnesses. This is essential to her religion. And that’s every week. If she were to return to Port Harcourt in Nigeria she would go into new areas, much more than other people do, knocking on doors, worrying that she will see someone on this street or that street who might know someone in her family, who might be visiting because of the closeness of Delta state and just this fear that she’ll be harmed once again, the claimant would psychologically fall apart.

[42]     The claimant has a chronic condition. It’s only ameliorated here but it’s not disappeared, even with medication and ongoing assistance and psychotherapy.

[43]     I find that due to the chronic nature of the claimant’s psychological condition just worrying about her situation and in conjunction with the way that she practices her religion, which is protected by a Convention ground, that she would be in a constant state of fright and dysfunction based on that she would be witnessing on average two times a week and sometimes even more if she were to return to Nigeria.

[44]     Even here she says, where she can witness freely, she still has her condition. In Nigeria it would be complete debilitation. The claimant said that she would be terrified, hyper-vigilant at all times, worrying. The claimant has suffered persecution in the past and that harm she carries with her emotionally and psychologically and physically.

[45]     Similarly, the internal flight alternative is unreasonable for the minor claimant as his mother will not be able to parent him. She will be recurrently disabled physically due to her psychosomatic illnesses and depression that have already caused her to be hospitalized, to lose work. She will not be able to support her child and take care of him when she is in so much pain herself. That pain will only be increased if she’s returned to Nigeria.

Conclusion

[46]     For the foregoing analysis, I conclude that the claimant [XXX] and [XXX] are Convention refugees and I therefore accept their claims.

[47]     That is the end of my decision.

—PROCEEDINGS CONCLUDED

Categories
All Countries Nigeria

2019 RLLR 35

Citation: 2019 RLLR 35
Tribunal: Refugee Protection Division
Date of Decision: October 29, 2019
Panel: Isis van Loon
Country: Nigeria
RPD Number: VB8-04562
Associated RPD Number(s): VB8-04561, VB8-04579
ATIP Number: A-2021-01124
ATIP Pages: 000196-000202


— DECISION

[1]       PRESIDING MEMBER: [XXX], the adult claimant and her two children, [XXX] and [XXX], the minor claimants, citizens of Nigeria are seeking refugee protection pursuant toss. 96 and 97(1) of the Immigration and Refugee Protection Act.

[2]       I maintained the designation of [XXX] as the representative for the two minor children, pursuant to s. 167 of the Act and Rule 20 of the Refugee Protection Division Rules. These claims were joined according to Rule 55 of the Refugee Protection Division Rules. In assessing this case, I have considered the Chairperson’s Guidelines on proceedings before the IRB involving sexual orientation and gender identity and expression to ensure that appropriate accommodations were made in questioning the claimants, in the overall hearing process and in substantively assessing the claim.

ALLEGATIONS

[3]       The adult claimant alleges that she is bisexual and that she and her two children, the minor claimants will be persecuted for this reason if they return to Nigeria.

DETERMINATION

[4]       I find that the adult claimant is a Convention refugee. The minor claimants are neither Convention refugees nor persons in need of protection as defined under 97(1).1

ANALYSIS

[5]       The determinative issues in this case, in the case of the adult claimant was credibility, and in the case of the minor claimants the determinative issue is whether or not they had a well-founded fear of persecution.

Identity

[6]       I find the claimants’ identities as nationals of Nigeria are established by their testimony and the supporting documentation filed including certified true copies of their passports in Exhibit 1.

Credibility

[7]       When a claimant swears to the truthfulness of certain facts there is a presumption that what the claimant has said is true unless there is sufficient reason to doubt its truthfulness. The adult claimant was straightforward. There were no relevant inconsistencies in her testimony or contradictions between her testimony and other evidence before me. She provided details of her sexuality and how she has come to accept herself for who she is. I found the claimant to be a credible witness and, therefore, believed what she alleged in support of her claim. The minor claimants did not testify.

[8]       The claimant provided the following relevant — the adult claimant provided the following relevant and probative documents:

[9]       An affidavit and a letter from her ex-husband’s friend which states that her family stayed with this friend for a few days before fleeing to the USA after she was accused of being a homosexual. The letter gives further details including the condition which the adult claimant was in when her husband brought her to this friend’s house. The friend included copies of his identification; this is all in Exhibit 4.2.

[10]     There was an affidavit and a letter from her ex-spouse’s employee as well. This employee states that the claimants were travelling to the USA to escape persecution for a homosexual offence. This employee said that they witnessed the events at the claimant’s home on [XXX], 2017. He said that the adult claimant was found in the act with a fellow lady, which is against the law. Both women were beaten and the fellow lady was sent to hospital and later confirmed to be in a coma. He assisted the adult claimant’s ex-spouse to help her escape. The police were looking for the adult claimant as were the neighbours. This letter states that the police and the neighbours will persecute her if she returns to Nigeria and the employee did include a copy of his identification as well on Exhibit 4.

[11]     Finally, in Exhibit 4, there’s a letter from a [XXX] dated [XXX], 2017. This lists first aid and treatment administered for severe body pain, arm bruises, lower abdominal pain, severe headache, minor eye and ear pain sustained from an attack.

[12]     I found these documents were relevant and served to corroborate the principal claimant’s core allegation that she has been persecuted due to her bisexuality.

Nexus

[13]     I find that the persecution the adult claimant faces has a nexus to one of the five Convention grounds; that of membership in a particular social group as a bisexual. The minor claimants have a potential nexus as membership in a particular social group; children of a women persecuted for a Convention ground. I note the minor claimants have made no allegations — or, there have been no allegations that the minor claimants are being targeted for any 97 reason, or that they’ve been at any personal targeted risk of harm under s. 97(1).

Well-founded Fear

[14]     In order to be considered a Convention refugee, claimants must demonstrate that they have a well-founded fear of persecution including both a subjective fear and an objective fear, as well, it needs to be forward-looking.  Based on the adult claimant’s testimony and supporting documents and the country condition documents I find the adult claimant has a well-founded fear of persecution; however, the minor claimants have not established a well-founded fear of persecution or a risk of harm under 97(1). My reasons follow:

[15]     The principal claimant alleges that she was discovered with another woman and assaulted on [XXX], 2017. She, her then-husband and the two minor claimants left the country on [XXX], 2017 for the USA as they already had visas. Shortly afterwards, She was separated from her husband and received a divorce on [XXX] of 2018. Unable to afford the expense of claiming asylum in the States and fearing Trump’s homophobic policies, she came to claim asylum with the minor claimants and with the permission of their father, her now ex-husband, came to Canada [XXX], 2018. I find by her timing and her actions that the claimants have educed sufficient credible evidence to establish that they have a subjective fear of persecution in Nigeria.

[16]     The adult claimant says,

“God does not make mistakes. That is how God created me, there are people like me in Nigeria, it was just unfortunate that I was caught.”

[17]     She described a somewhat fraught relationship with a woman named [XXX], a former schoolmate. Her ex-husband provided testimony as a witness over the phone. He confirmed that he knew [XXX], and he knew of his wife’s bisexuality. In fact, as the adult claimant had earlier testified, it was [XXX] who told him about the adult claimant’s bisexuality. He described the events of [XXX], 2017 which was consistent with that described in the basis of claim form by the adult claimant. He said that the cousin had called him from the house after discovering the two women together. He said that she’d been beaten and her clothes were torn and that he took her to a friend’s place. He expressed concern over the children and said that for this reason he took them all to the USA on [XXX] of 2017. He said they hadn’t been getting along for a while and they did divorce, and he expressed the hope that she could be accepted for the way that she is. I note that his testimony is consistent with that of the adult claimant, as well as the affidavits from his friend and his employee.

[18]     The country documentation is consistent with the adult claimant’s fear of persecution in Nigeria. The NDP 6.8 says that,

“The relatively new anti-gay law that was brought in has had a devastating effect on Nigeria’s LGBTI community. Although life was extremely difficult for LGBTI people before the law’s passage, and blackmail, extortion and violence against LGBTI people were common, the law significantly heightened LGBTI people’s vulnerability. Apart from the harsh criminal penalties it imposes, many interviewees stated that that the law has essentially declared open season on LGBTI people. The climate of fear, intimidation and violence created by the anti-gay law has led to numerous other human rights violations, threatening the right to free expression, literary and cultural freedoms, online expression, democratic participation and freedom of association.”

[19]     There was a recent survey at NDP 6.3 that found in 2017, 83% of persons polled would not accept a family member if they were homosexual. Nation wide, 90% of citizens support the same-sex marriage prohibition Act. 94% of those surveyed said that constitutional rights of freedom of association and assembly should be denied to LGBT persons. Another survey at NDP 6.5 found that 55% of the LGBT respondents surveyed reported being physically or sexually attacked or threatened with violence either at home or in the workplace in the past 10 years.

[20]     I find there is a serious possibility that the claimant would face persecution in Nigeria by both state and non-state actors for reason of her being a bisexual. Bisexuality is against the law in Nigeria, and in addition to homophobic laws that are on the books, homophobia is rampant in the country and that’s also well-documented in the National Documentation Package which shows that 90% of Nigerians believe the country would be better off without homosexuals. That’s NDP 6.3.

[21]     In terms of the minor claimants; the principal claimant said that her children would suffer societal discrimination as the children of an LGBT parent. Her ex-husband, who lives now in the USA, testified that he was concerned that they would be depriving his children of a mother if they had remained in Nigeria and she had gone to jail, and that this was why he had brought them all from Nigeria.

[22]     A response to information request — or, pardon me. A document at NDP 6.11 says that,

“Families disown family members who identify as sexual minorities due to the shame that the family members might face from society, their church and friends.”

[23]     Similarly, other sources explain that families of sexual minorities face stigmas; however, there are also cases where family members of sexual minorities face no risks at all. As such, it could be relative whether family members of sexual minorities face any risk from society, and it seems that whether or not family members of sexual minorities face risks depends on whether the person who is the 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.

[24]     In this case, the adult claimant was not an activist and she was not open in public about her bisexuality, and her children are too young to have been publicly supportive and, therefore, their profiles do not fit those of family members who may face risks. I also note that they have a supportive father who is no longer in Nigeria and; however, because he is no longer in Nigeria and is not openly supportive, that does not put them at any risk, either. Thus, there is insufficient evidence before me to show children of LGBTI parents are at direct risk of harm.

[25]     Counsel did allege that children could be arrested to harass the adult claimant, but he was unable to provide any evidence and I gave his assertion little weight. So, in the end, as I said there is insufficient evidence before me to show the children of LGBTI parents are at any direct risk of harm, and in this case I also note that their father, who is no longer in Nigeria is supportive of these children, thus, I do not find that the minor claimants have a well-founded fear of persecution on a Convention ground, nor do they face a risk of harm as per 97(1).

[26]     So, based on all the evidence before me, I find the adult claimant would face a serious possibility of persecution by both state and non-state actors if she were to return to Nigeria; however, the minor claimants do not have a well-founded fear of persecution, nor face a risk of harm as understood under 97(1) if returned to Nigeria.

State Protection

[27]     Except in situations where the state is in complete breakdown, states must be presumed capable of protecting their citizens. To rebut this presumption, the onus is on the claimant to establish on a balance of probabilities through clear and convincing evidence that their state’s protection is not adequate.

[28]     In this case the agent of persecution, at least one of them, is the state and the persecution the claimant would face if returned to Nigeria is at the hand of the authorities. I find that the adult claimant has provided clear and convincing evidence that rebuts on a balance of probabilities any presumption of state protection. Accordingly, I find there is no state protection available to the principal claimant.

[29]     An internal flight alternative arises when a claimant who otherwise meets all the elements of the definition of a Convention refugee in their home area of the country, nevertheless, is not a Convention refugee nor a person in need of protection because they could live safely elsewhere in that country. There’s a legal test which has two prongs; I’d have to be satisfied on a balance of probabilities that the claimant would not face a serious possibility of persecution in the part of the country to which I have found an IFA existed and conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable in all circumstances including those particular to the claimant for her to seek refuge there.

[30]     The state of Nigeria is one of the agents of harm and it is in control of all of its territories, therefore, I find that the adult claimant faces a serious possibility of persecution throughout the entire country of Nigeria. There is no internal flight alternative for the adult claimant in Nigeria.

[31]     Based on the totality of the evidence before me I’ve concluded that the adult claimant is a Convention refugee and accordingly, I’ve accepted her claim. Similarly, based on the totality of the evidence before me I have concluded that the minor claimants are not Convention refugees, nor are they persons in need of protection under 97(1) and accordingly, have not accepted their claims.

— DECISION CONCLUDED

1 The recording of this oral decision is not available, it appears, because of a technical malfunction. Therefore, this written version is based not on a recording but on the notes used by the member in rendering her oral decision on the recording on November 1, 2019.

Categories
All Countries Nigeria

2019 RLLR 28

Citation: 2019 RLLR 28
Tribunal: Refugee Protection Division
Date of Decision: October 11, 2019
Panel: J. Robinson 
Counsel for the Claimant(s): Richard Wazana
Country: Nigeria
RPD Number: TB9-02835
Associated RPD Number(s): TB9-02920, TB9-02921, TB9-02922, TB9-02933
ATIP Number: A-2021-01124
ATIP Pages: 000165-000169


DECISION

[1]       MEMBER: This is the decision for the following claimants, [XXX], [XXX], [XXX], [XXX] and [XXX] and file numbers TB9-02835, TB9-02920, TB9-02921, TB9-02922 and TB9-02933, respectively.

[2]       [XXX] was appointed as the designated representative for the minor claimants, whom I refer to as, [XXX], [XXX], [XXX] and [XXX].

[3]       I have considered your testimony and the other evidence in the case. I’m ready to render my decision, orally.

[4]       The claims were heard jointly pursuant to Rule 55 of the Refugee Protection Division Rules. The principal claimant was appointed as the designated representative for her children, the minor claimants.

[5]       In making this decision, the panel has considered the Chairperson’s Guideline 9, Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression and the Chairperson’s Guideline 4, Women Refugee Claimants Fearing Gender-related Persecution.

[6]       Having considered the totality of the evidence, the panel finds that the minor claimant, [XXX], that is, [XXX], is not a Convention refugee, pursuant to Section 96 of the IRPA or a person in need of protection, pursuant to subsection 97(1) of the IRPA.

[7]       Counsel indicated clearly at the beginning of the hearing that he was not leading any evidence with respect to this minor claimant, a U.S. citizen.

[8]       With respect to this claim, I do not have any persuasive evidence before me to suggest that the minor claimant would face a serious possibility of persecution in the U.S. or that she would face a risk of torture or a risk to her life or cruel or unusual treatment or punishment in the U.S., were she to return there.

[9]       Therefore, the panel rejects the claim of the minor claimant, [XXX].

[10]     The remainder of these reasons shall be in reference to the four remaining claimants.

[11]     The panel finds that the claimant, [XXX], is a Convention refugee pursuant to Section 96 of the IRPA on the basis of her membership in a particular social group, namely, as bi-sexual.

[12]     The panel finds that she would face a serious possibility of persecution in Nigeria.

[13]     The panel finds that the female minor claimant, [XXX], is a Convention refugee, pursuant to Section 96 of IRPA on the basis of gender discrimination because she faces a serious possibility of persecution in Nigeria in so far as the principal claimant’s husband’s extended family wishes to perform female genital mutilation, FGM, upon the female minor claimant.

[14]     The panel finds that the minor male claimants, [XXX] and [XXX], are Convention refugees pursuant to Section 96 of IRPA on the basis of religious belief, in so far as the principal claimant’s husbands extended family wishes to perform ritual incision upon them and they do not agree.

[15]     The allegations in the claim are found in the respective Basis of Claim Forms, filed by the claimants. The claimants fear that they will be killed or seriously harmed because the principal claimant is bi-sexual and because the minor claimants have refused to undergo ritual mutilation to purge or atone for the perceived transgressions of the principal claimant.

[16]     The identity and country of reference for the claimants have been established, on the balance of probabilities, by the claimants’ Nigerian passports.

[17]     The principal claimant is a member of a particular social group, as a bi-sexual, as is the female minor claimant, who has been threatened with FGM. I am, therefore, satisfied on the available evidence, that the principal claimant and the female minor claimant have established a nexus to a Convention ground under Section 96 of the IRPA, on the basis of gender-based persecution.

[18]     I am also satisfied, on the basis of the available evidence, the male minor claimants have established a nexus to a Convention ground under Section 96 of the IRPA, on the basis of religious belief because the male minor claimants are Christians who do not wish to undergo a ritual incision.

[19]     In terms of your general credibility, I have found you to be a credible witness and I, therefore, believe what you have alleged in your oral testimony and in your Basis of Claim Form.

[20]     You have explained that your difficulties in Nigeria arose in [XXX] 2018 when your sister-in-law discovered your affair with your same-sex partner and sent compromising pictures from your cellphone to your husband.

[21]     Thereafter, your husband’s family became angry about your bi-sexuality and having advised the King, the claimants were each ordered to undergo a ritual cleansing through the imposition of FGM upon the minor female claimant, facial and chest incisions upon the minor male claimants and facial and genital incisions upon the principal claimant.

[22]     When the principal claimant refused to attend to the appointed place for the ritual, representatives of the community attended at the home of the principal claimant, beating her and torturing her by the application of a hot iron to her abdomen and by lashing her legs with cables.

[23]     The claimants fled to [XXX], where, after three weeks, the story of these events followed them and their host asked them to leave.

[24]     Hence, the fled to [XXX], where the principal claimant received threatening phone calls from the agents of persecution.

[25]     Thereafter, the claimants fled to Canada.

[26]     I, therefore, find that your subjective fear is established by your credible testimony and the corroborating documentary evidence and I believe what you have alleged, on a balance of probabilities.

[27]     I find that the agent of persecution in this case is the extended family of the husband of the female claimant, the principal claimant and the broader Nigerian community in which same-sex relationships are illegal and homophobia is the prevailing attitude.

[28]     You have testified that your mother has since been beaten by representatives of your extended family in an attempt to discover your whereabouts.

[29]     Your testimony is consistent with the objective documentary evidence. Exhibit 3 consists of relevant extracts of the National Documentation Package for Nigeria. At Tab 3.2, the country conditions reports confirm that, state sponsored homophobia exists in Nigeria.

[30]     At Tab 5.28 and 6.12, the country conditions reports confirm the prevalence of FGM.

[31]     The foregoing country conditions report is consistent with the personal experiences reported by the claimant, principal claimant.

[32]     Although the country conditions reports do not specifically address the ritual mutilation ordered for the male, minor claimants, I found the testimony of the principal claimant on that matter to be compelling, consistent and credible. I am satisfied, on the basis of her testimony, that this threat did actually occur.

[33]     The principal claimant’s testimony, I found, to be credible overall. It was given directly. It was broadly consistent. There were no inconsistencies that went to the heart of the claim.

[34]     I find the events as described did, in fact, occur.

[35]     Based on your personal circumstances, as well as, the objective country documentation, I find that you have rebutted the presumption of state protection. The country conditions reports confirm that, as a bi-sexual woman, the principal claimant would be persecuted through Nigeria.

[36]     The country conditions reports confirm that the position of the police forces with respect to the enforcement of traditional norms, such as, FGM and ritual mutilation is to regard it as a family matter, rather than as a police matter.

[37]     State protection is not available for you.

[38]     I have also considered whether a viable internal flight alternative exists for you. The evidence shows that with respect to the persecution of a particular social group, the State is itself the agent of persecution with reach throughout the country and a motivation to pursue the principal claimant.

[39]     I find that the test fails on the first prong with respect to her.

[40]     With respect to the minor claimants, I find that the claimants were unsuccessful in hiding in [XXX] and that the agents of persecution would able to confirm the presence of the claimants in [XXX].

[41]     Their willingness to harm the principal claimant’s mother in order to locate the claimants, demonstrates, on a balance of probabilities, that the agent of persecution has the motivation and the reach to find the claimants in Nigeria.

[42]     In all the circumstances, I find the claimants have no reasonable flight alternative within Nigeria.

[43]     Based on the totality of the evidence, I find the claimants to be Convention refugees and I accept their respective claims.

[44]     Thank you.

[45]     So, we are off the record.

[46]     Returning to the record for just a moment to confirm that I have returned the original documents to Counsel.

[47]     Thank you very much.

——— REASONS CONCLUDED ———-

Categories
All Countries Nigeria

2019 RLLR 27

Citation: 2019 RLLR 27
Tribunal: Refugee Protection Division
Date of Decision: October 17, 2019
Panel: Dian Forsey
Counsel for the Claimant(s): Roger Rowe
Country: Nigeria
RPD Number: TB9-02164
Associated RPD Number(s): TB9-02208, TB9-02229, TB9-02230, TB9-02231, TB9-12232
ATIP Number: A-2021-01124
ATIP Pages: 000162-000164


DECISION

[1]       MEMBER: This is a decision for the claimant in file number TB9-02164. The male claimant was appointed the designated representative for the four minor children. I have also considered the Guidelines 3 and 4 with respect to look at-, looking at the evidence today. One deals with women and the other one deals with child-, with children that are before me. I’m sure Counsel’s familiar with those Guidelines.

[2]       I have considered your testimony and the other evidence in this case and I am ready to render my decision.

[3]       You are claiming to be citizens of Nigeria and are claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA). I find that you are a-, that you are Convention refugees and persons in need of protection for the following reasons.

[4]       You alleged the following, that you are citizens of Nigeria and of no other country. The documentation on file provided by your Counsel, which were in the form of your passports, your US visas, your educational documentation, the documentation with respect to your role within your church as a Pastor and Deacon for the female claimant, clearly, and the birth certificates also of your children, provide a basis for me to-, to declare that you are indeed citizens of Nigeria based on your testimony and supporting documentation filed in the Exhibits.

[5]       Therefore, on a balance of probabilities that your identity and country of reference have been established. In terms of your general er-, credibility, I’ve found that you are ere-, were credible witness and therefore I accept what you have alleged in your oral testimony and in your Basis of Claim form. In support of your claim, you provided document-, documents confirming your role as a Pastor and your wife’s role as a Deacon within the Christian Church.

[6]       You in fact performed your duties for more than seven years in that church in Nigeria. You continue today to be a parishioner of churches within Canada, which confirms to me that you are following your Christian faith. Your testimony was straightforward and in keeping with your Basis of Claim form and there were no significant inconsistency or admissions in your evidence today. Your evidence was clear, there were times when you had an opportunity to exaggerate your claim, but you did not do so. So, I find therefore that you are credible with respect to the fear that you have in returning to Nigeria.

[7]       I find there is a link between your fear, there’s no–, no link between your fear and one of the five Convention grounds, therefore I’m going to assess the claim under Section 97, and that is the fear upon your return to Nigeria given your profile. The objective evidence supports your allegations that individuals in your circumstances face being persecuted by persons that you have named as Kingsman and their-, and their group and organization, this is also supported by the documentary evidence quoted by the Counsel. It speaks of the difficulty of leaving such cults once you are born into it. In this particular case, however, it appears to be particularly offensive to them, because you have become a Christian and in fact a Pastor within the Christian Church. And that was clear from the evidence in your BOC and in your oral evidence today.

[8]       You have also provided me two police report and the originals of those police reports. The law and principle are clear that they do provide protection in some matters in Nigeria, but in your particular case, the practice is not always available to claimants who are bringing forth complaints about cults or the cult activity towards them. The police also appear as Counsel has alleged in his submissions under Chap. 2, page 12, and that the police appear to be discriminatory toward women with respect to traditional rituals. The claimant has spoken of those traditional rituals when speaking to me about the rituals that were performed, that would be performed on his family should he return to Nigeria.

[9]       The claimants also-, claimant has also-, principal claimant has also testified that he is strong within his Christian faith and does not believe in these traditional rituals that occur within his family-, the main group of his family. He has also indicated to me that he swore to his father that he would not take on the chieftainship of-, of this family group. He also would not take it on because of-, he would lose his marriage to his wife who is a strong Christian person. He’s also fearful for his children should he take on any such position. And indeed, his own beliefs would prevent him from taking on such a role.

[10]     Therefore, I find that you face a risk of serious harm, as set out in Section 97, should you return to Nigeria today. I find that adequate state protection would not be available to you were you to seek it in Nigeria. The objective evidence that I’ve stated already indicates that would not be possible for you, and more likely than not, they would continue to inform you that you should settle matters within your family and within that group.

[11]     You have testified that you made attempts to seek state protection, as we-, as I’ve just spoken about, and that the State was not forthcoming to you, and in fact advised you that you should settle it among yourselves. In light of the objective con-, country documentation which counsel has referred to and is in the documents from the Board, I find that the claimant has rebutted the presumption of state protection based on your personal circumstances as well as the do-, objective documentary evidence. I find that adequate state protection would not be available to you should you return to Nigeria.

[12]     I’ve also considered whether a viable internal flight alternative exists for you and identified Abuja and Port Harcourt as the possible IFA locations. I’ve also that the failure to claim in the US is reasonable under their circumstances that you found yourself in that particular time and place. The Panel finds that th-, your efforts also to seek state protection is reasonable in the circum-, that your efforts to seek state protection is reasonable under the circumstances that you found yourself in, in that particular time and place in Nigeria, and I have two report-, police reports that both indicate they had referred you back to the group to be able to negotiate some sort of arrangement with them. Which seems highly unlikely given the documentation about these cults.

[13]     The-, in this particular case, I just want to point out that the claimant’s profile is heightened by his work within his Christian Church as a Pastor. He would be well known and would make it even easier to find in Nigeria, should he be seriously sought by these groups of people, and there’s no doubt from the evidence that he would be continued to be sought by this group, should he return to Nigeria.

[14]     The country documentation indicates that the situation for individuals, in circumstances such as yours, would be the same throughout the country because of your profile as a Christian Pastor in the church. So, having considered your personal circumstances, I found it unreasonable for you to relocate in either of the IFA locations. I therefore find it would not be reasonable in the circumstances that you have indicated to reside in any of the IFAs. As such, I find there is no viable flight-, internal flight alternative for you and or your family in Nigeria today.

[15]     Therefore, based on the totality of the evidence, I find you to be a person-, to be a person in need of protection, your claim is therefore accepted.

———- REASONS CONCLUDED ———-

Categories
All Countries Nigeria

2019 RLLR 19

Citation: 2019 RLLR 19
Tribunal: Refugee Protection Division
Date of Decision: December 13, 2019
Panel: Z. Perhan 
Counsel for the Claimant(s): Abba Chima 
Country: Nigeria
RPD Number: TB8-19949
ATIP Number: A-2021-01124
ATIP Pages: 000132-000136


DECISION

[1]       MEMBER: This is the decision for [XXX] File number TB8-19949. I have had an opportunity to consider your testimony and examine the evidence before me and I am ready to render my decision orally. You will receive an unedited transcript of this decision in the mail, your counsel will also get a copy so if you have any questions you are welcome to ask him.

[2]       You claim to be a citizen of Nigeria and you are claiming refugee protection pursuant to Section 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       I find that you are a Convention refugee for the following reasons.

[4]       The allegations of your claim can be found in the basis of claim form and its amended version in Exhibit 2 and 5. The details were elaborated today in your testimony.

[5]       In summary you fear persecution in Nigeria due to your sexual orientation as a member of a particular social group namely because you are a lesbian.

[6]       Based on the type of claim I have carefully considered chair person’s Guideline 9 relating to sexual orientation and gender identity and expression.

[7]       I find that your identity as a national of Nigeria has been established on a balance of probabilities both through your testimony and through the valid Nigerian passport which is presented, which was presented to us when you made your claim found in Exhibit 1. I find no reason to doubt the authenticity of that document.

[8]       In terms of your general credibility, I have found you to be a credible witness. You have testified in a straightforward manner and there were no relevant inconsistencies in your testimony or contradictions between your testimony and the other evidence before me.

[9]       I also find that there were no embellishments made within your testimony. Therefore I accept what you have alleged in support of your claim including the following.

[10]     As the central issue of your claim is sexual orientation I have put a lot of weight into your testimony about your past and current same sex partners in Canada.

[11]     You were able to present affidavits of support from your roommate, your former partner, your cousin, you current same sex partner in Exhibit 4. I find that these letters corroborated the key elements of your claim for protection namely your former and current same sex relationships in Canada as well as when your family members became aware of your sexual orientation and how it affected your decision to stay permanently in Canada.

[12]     You also presented a witness in this claim who you have alleged to be your current same sex partner. I know that she herself was apparently a successful refugee claimant on the issue of sexual orientation where you appeared as her witness.

[13]     She testified at today’s hearing for you, her general oral had almost no inconsistencies. Your partner seemed very nervous and stressed, when she was asked why she was unable to speak freely she admitted that she was very stressed for you and she was afraid to lose you in case the decision for your claim was negative. I find it is a reasonable explanation for situations like yours today.

[14]     But in general you seem to know your partner well and spend a lot of time with her. You celebrated holidays together, you have plans for the future and you talk freely about each other’s likes and dislikes as well as preferences.

[15]     You also detailed in your testimony your involvement in LGBTQ communities since coming to Canada. You presented attendance log and orientation training record from the 519 in exhibit 4. Though you did attend 519 only briefly but you explained that you felt this was more a place for newcomers and you have been in Canada for awhile. In addition you started working late shifts and were unable to make it to the meetings.

[16]     I find that your testimony about participation in the pride festivities over the past two years adds to the credibility of your allegations especially in regards to your motivation to do so based on your described past in Nigeria.

[17]     At the same time you have been living in Canada since 2007 either as a student or with a work permit. I understand the delay is not the determinative issue in any claim especially because you did have status in Canada up until the end of 2016.

[18]     However I do draw a negative inference from a two year delay in applying for refugee protection since you did not have status in Canada for the last two years.

[19]     I find however you provided a reasonable explanation as to why you did not seek refugee protection sooner. You did consult two lawyers during that time who helped you to try to extend your work visa in Canada twice but you were refused and the lawyers advised you to return to Nigeria to reapply from there.

[20]     Because of social, excuse me because of your sexual orientation you decided to remain in Canada without status up until 2018 when your current partner advised you to claim refugee protection.

[21]     Therefore I find that on a balance of probabilities you are a lesbian and that you have a subjective fear of returning to Nigeria.

[22]     I find that there is a link between what you fear and one of the five convention grounds. As I noted earlier the convention ground for you claim is particular social group, so I accept on a balance of probabilities that you are indeed a lesbian.

[23]     The overall objective evidence supports your claim for convention refugee protection based on the membership in a particular social group.

[24]     The national documentation package we have for Nigeria in Exhibit, in Exhibit 3 says that same sex relationships are criminalized in Nigeria. There is a same sex marriage prohibition act enacted in the months of January 2014 and it effectively renders illegal all forms of activity supporting or promoting LGBTQ rights.

[25]     According to item 2.1 in the NDP the government has formal charges for same sex relationships anyone who is convicted or aiding or assisting homosexual activities faces a punishment of ten years in prison. Anyone convicted of entering into a same sex marriage or civil union may be sentenced to up to fourteen years in prison.

[26]     Items 6.7 indicates that any sexual orientation that is not heterosexual is considered to be unnatural, demonic and immoral in Nigeria.

[27]     Based on these personal circumstances and the country conditions in Nigeria I find that you have an objective basis to your claim. You fear the police and state and authorities in Nigeria.

[28]     I find that it would be objectively unreasonable for you to seek the protection of the authorities in Nigeria in your particular set of circumstances. Adequate state protection would not be available to you as you fear the state.

[29]     With regards to possible viable internal flight alternatives in Nigeria, given the laws, the federal laws of Nigeria criminalizing same sex relations applicable, that they are applicable throughout Nigeria I find there is a serious possibility of persecution throughout Nigeria for you and therefore a viable internal flight alternative does not exist for you in Nigeria.

[30]     Having considered all the evidence I find here is a serious possibility that you would face persecution in Nigeria pursuant to Section 96 of the Immigration and Refugee Protection Act. I conclude that you are a Convention refugee based on your membership in a particular social group namely as a lesbian and I therefore accept your claim.

[31]     CLAIMANT: Thank you so much.

[32]     MEMBER: Thank you. Okay so this is the end.

[33]     COUNSEL: Thank you madam member.

[34]     CLAIMANT: Thank you

[35]     MEMBER: In your life in Canada now in the permanent status. Goodluck. I am going off the record.

———- REASONS CONCLUDED ———-

Categories
All Countries Nigeria

2019 RLLR 16

Citation: 2019 RLLR 16
Tribunal: Refugee Protection Division
Date of Decision: May 13, 2019
Panel: Harvey Savage
Counsel for the claimant(s): Kingsley I Jesuorobo
Country: Nigeria
RPD Number: TB8-17781
ATIP Number: A-2020-01124
ATIP Pages: 000119-000122


REASONS FOR DECISION

INTRODUCTION

[1]       These are the reasons for the decision in the claim of [XXX], who claims to be a citizen of Nigeria, and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[2]       In rendering my reasons, I have considered the Chairperson’s Guidelines on Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.

ALLEGATIONS

[3]       You allege the following: You have identified as a gay person in Nigeria since an early age. Your first relationship was with [XXX] when you were 24. It lasted more than one year and ended after you were attacked on [XXX], 2017, by local vigilantes or local police who were tipped off by your stepdad. You ended that relationship because you wished to spare [XXX] from exposure due to his relationship with you. You then had a subsequent relationship with [XXX] which ended when you left for Canada on a student visa. Just before leaving you experienced other attacks. You made a claim for protection at the airport.

DETERMINATION

[4]       I find that you are a Convention refugee as you have established a serious possibility of persecution should you return to Nigeria based on the grounds in section 96.

ANALYSIS

Identity

[5]       I find that your identity as a national of Nigeria is established by the documents provided, your passport with student visa.

Nexus

[6]       I find that you have established a nexus to section 96 by reason of your sexual orientation as a gay man in Nigeria.

Credibility

[7]       Based on the documents in the file and your testimony, I have noted no serious credibility issues. In particular, the evidence establishes the allegations as set out above. You provided a medical report and corroborating letters. After reviewing the documents and the testimony, I have no reasons to doubt their authenticity.

Objective basis of future risk

[8]       Based on the credibility of your allegations, and the documentary evidence set out below, I find that you have established a future risk that you will be subjected to the following harm. The claimant faces a risk of further exposure in Nigeria and possibility of vigilante attacks and arrests because homosexuality is criminalized.

[9]       The fact that you face this risk is corroborated by the following documents: National Documentation Package (NDP) for Nigeria – April 30, 2019, items 1.3, 2.1, 6.1, 6.2 and 6.4.

Nature of the harm

[10]     This harm clearly amounts to persecution.

State protection

[11]     I find that it would be objectively unreasonable for you to seek the protection of the state in light of your particular circumstances. You were attacked by local police.

Internal flight alternative

[12]     I have considered whether a viable internal flight alternative exists for you. On the evidence before me, I find that there is a serious possibility of persecution throughout Nigeria. As homosexuality is criminalized in Nigeria, there is no viable internal flight alternative.

CONCLUSION

[13]     Based on the analysis above, I conclude that you are a Convention refugee. Accordingly, I accept your claim.

(signed)           Harvey Savage

May 13, 2019

Categories
All Countries Nigeria

2019 RLLR 9

Citation: 2019 RLLR 9
Tribunal: Refugee Protection Division
Date of Decision: November 19, 2019
Panel: C. Ruthven
Counsel for the claimant(s): Rasaq Ayanlola
Country: Nigeria
RPD Number: TB7-04392
Associated RPD Numbers: TB7-04402, TB7-04424, TB7-04425
ATIP Number: A-2020-01124
ATIP Pages: 000065-000074


REASONS AND DECISIONS

[1]       These reasons and decision are in regards to the claims for protection made by [XXX] (principal claimant), [XXX]1 (adult male claimant), [XXX]2 (eldest minor claimant), and [XXX] (youngest minor claimant).

[2]       Each is claiming protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act.3

[3]       The panel heard the claims jointly, pursuant to Refugee Protection Division Rule 55.4 The principal claimant was the designated representative for each of the two minor claimants.5

ALLEGATIONS

[4]       The principal claimant’s full allegations are set out in her Basis of Claim Form and related narrative.6 In summary, the principal claimant is a bisexual woman. She had three intimate female partners in Nigeria, prior to marrying the adult male claimant in [XXX] 2007.

[5]       On [XXX], 2016, the principal claimant restarted a sexual relationship with her third female partner, [XXX]. [XXX] was married, and residing with her husband and some of her male cousins. When [XXX] complained to her husband, [XXX], about her cousins’ criminal activities in their home, [XXX] set up hidden security cameras, unbeknownst to [XXX].

[6]       Upon reviewing his hidden camera footage on [XXX], 2016, [XXX] discovered the sexual relationship between his wife and the principal claimant. [XXX] called the principal claimant to confront her, and he informed the adult male claimant about the sexual relationship between their respective wives. When the adult male claimant and [XXX] spoke in person at [XXX] residence, the male claimant discovered that [XXX] had quickly been sent to [XXX] family home after the discovery of her adultery and sexual intercourse with the principal claimant.

[7]       Although disappointed in the principal claimant for her adultery, the adult male claimant did not want the principal claimant to be harmed by [XXX], his family, or homophobic members of the community. As such, the principal claimant and the two minor claimants relocated to the house of the principal claimant’s cousin, [XXX].

[8]       On [XXX], 2016, the adult male claimant was visited by two police officers, in the company of [XXX]. The adult male claimant was arrested, as an accomplice to the crimes related to the sexual orientation of the principal claimant. The adult male claimant was held at the [XXX] police station for two days, until he was released on the condition that he produce the principal claimant.

[9]       Instead of complying with his bond conditions, the adult male claimant went into hiding at a hotel in [XXX], and arranged for the four claimants to depart Nigeria. The claimants departed Nigeria on [XXX], 2016, and they each made their claims for protection in Canada the following month. The adult male claimant and both of the minor claimants rely on the narrative of the principal claimant.

DETERMINATION

[10]     The panel finds that the principal claimant is a Convention refugee, pursuant to section 96 of the Immigration and Refugee Protection Act, based on her membership in a particular social group, namely her sexual orientation as a bisexual female.

[11]     The panel further finds that there is sufficient nexus between the claim of the adult male claimant and the persecution of the principal claimant, and that there is sufficient nexus between the claims of each minor claimant and the persecution of the principal claimant.7

[12]     The adult male claimant faces a risk of criminal prosecution related to the perception of the authorities of Nigeria that he aided and abetted the principal claimant in evading prosecution, for crimes related to her sexual orientation. The minor claimants face risks related to spiritual cleansing rituals, at the hands of their family members in Nigeria.

[13]     As such, the panel finds that the adult male claimant, the eldest minor claimant, and the youngest minor claimant are each Convention refugees, pursuant to section 96 of the Immigration and Refugee Protection Act, as they each face a serious possibility of persecution due to membership in a particular social group, family members of the principal claimant.

ANALYSIS

Identity

[14]     The panel finds that all four claimants have established their identities as nationals of Nigeria, each based on a balance of probabilities. Each claimant presented their Nigeria passport.8

Credibility

[15]     Based on the nature of the four claims, the panel carefully considered the contents of Chairperson’s Guideline 9: Sexual Orientation and Gender Identity and Expression,9 during both sittings of the hearing, and while rendering the decision.

[16]     The panel is mindful that section 8.3 highlights that persecution may be faced by individuals who provide support for persons with diverse sexual orientation (or diverse gender identity and expression). In addition, family members of individuals with perceived diverse sexual orientation (or perceived diverse gender identity and expression) may also have a nexus to a Convention ground.

[17]     The panel finds that the principal claimant testified at the hearing in a straightforward and consistent manner, without the use of embellishments, contradictions, or omissions from the details which were presented when she made her claim for protection.

Sexual Relationship with [XXX] in Canada

[18]     The panel finds that the principal claimant and the witness each provided spontaneous testimony regarding the development of their intimate relationship in Canada, at the July 8, 2019 sitting. The panel also finds that this separate testimony from each intimate partner was also consistent with the relationship details that were presented in the letter signed by the witness, in advance of the July 8, 2019 sitting.10

Participation with the LGBTIQ Community in Canada

[19]     In support of the principal claimant’s participation in the Lesbian, Gay, Bisexual, Trans, Intersex, and Queer (LGBTIQ) community during her time in Canada, she presented two photographs depicting an indoor gathering,11 eight photographs depicting her attendance at a Pride festival,12 an [XXX], 2017 letter signed by a coordinator at The 519 Community Centre,13 as well as an [XXX], 2017 letter and a [XXX], 2019 letter signed by leaders of the [XXX] Community Church of Toronto.14

[20]     Although participation in LGBTIQ community groups in Canada is generally open to anybody who wishes to join and participate (including The 519 Community Centre and the [XXX] Community Church of Toronto), the panel finds that the testimony of the principal claimant, the testimony of the witness, and the presented written evidence provided support for the central allegations which were made by the principal claimant, in regards to her sexual orientation.

[21]     Based on the above considerations, the panel finds the principal claimant to be credible in the core elements of her claim, namely that she is a bisexual woman.

Objective Basis of the Claim

[22]     The overall objective evidence supports the claim for Convention refugee protection for the principal claimant based on her membership in a particular social group, namely her sexual orientation as a bisexual woman.

[23]     The overall objective evidence also supports the claims for Convention refugee protection for the adult male claimant and each minor claimant, based on their membership in a particular social group, namely family members of a bisexual woman.

Treatment of Bisexuals in Nigeria

[24]     Consensual female with female relationships are criminalized in Nigeria. The Same Sex Marriage Prohibition Act, enacted in the month of January 2014, effectively renders illegal all forms of activity supporting or promoting LGBTIQ rights.15 Any sexual orientation that is not heterosexual is considered to be unnatural, demonic, and immoral in Nigeria.16

[25]     The government brought formal charges for the first time last year. Anyone who is convicted of aiding and abetting homosexual activities faces a punishment of ten years in prison. Anyone convicted of entering into a same-sex marriage or civil union may be sentenced to up to fourteen years’ imprisonment.17

[26]     As a result of the referenced country condition documentation from the National Documentation Package, the panel finds that the principal claimant and the adult male claimant have each established an objective basis for their claims (as a bisexual woman and as the spouse of a bisexual woman), and that their respective fears are well-founded.

Ritual Practices in Nigeria

[27]     In Nigeria, there are some ritual practices that dehumanize, deprive, and economically dispossess the victims. The custodians of cultural or traditional rites ultimately determine the fate of the individual who is undergoing ritual practices. Nigerian police officers appear to be discriminatory in their treatment of victims of ritual practices. Prosecutions for ritual practices are rare, and police protection relies on influence and financial resources.18

[28]     The adult male claimant testified at the October 16, 2019 sitting that he expects that the two minor claimants would be subjected to ritual cutting, based on their descent from the principal claimant. The panel finds that the testimony established that, on a balance of probabilities, that ritual practices were performed in family of the adult male claimant and that members of his family would be motivated to perform these cutting rituals on the two minor claimants.

[29]     The eldest minor claimant is eleven years old and the youngest minor male claimant is eight years old.19

[30]     The panel notes the widespread problem of violence against children in Nigeria. Aside from physical violence endured by half of children, approximately 60% of children under the age of eighteen experienced some form of emotional, sexual, or physical violence in Nigeria.20

[31]     In consideration of these ages (in regards to granting consent), and in consideration of the unregulated nature of ritual practices in Nigeria, the panel finds that the evidence adduced has established that it is more likely than not that the described cutting rituals cross the threshold into violence against children, and that undergoing these type of rituals might have a material impact on the life or on the health of each minor claimant.

[32]     In addition to the above, the panel finds that the risk of harm to each minor claimant is directly tied to the sexual orientation of their mother, the principal claimant. As such, the panel finds that each minor claimant, as a family member of the principal claimant, has established an objective basis for their claim, and that their fears are well-founded.

State Protection

[33]     LGBTIQ individuals in Nigeria often do not report acts of violence to the police.21 Given the illegal nature of same-sex intercourse in federal legislation, the panel finds it unreasonable to expect the principal claimant to seek redress or protection from the police or any other authorities in Nigeria.

[34]     The adult male claimant also fears the authorities in Nigeria. In light of the referenced country condition evidence, the panel finds that it would also be objectively unreasonable for the adult male claimant, in his particular set of circumstances, to seek the protection of the authorities in Nigeria.

[35]     The panel finds that the principal claimant and the adult male claimant have each rebutted the presumption of state protection with clear and convincing evidence of the state’s inability to protect them. The panel finds that on a balance of probabilities, adequate state protection would not be available to the principal claimant or to the adult male claimant, should they return to Nigeria.

[36]     Given the limited nature of police protection for those without influence or financial resources who face ritual practices in Nigeria, as well as the lack of prosecutions against perpetrators in the court system, the panel finds that each minor claimant has also rebutted the presumption of state protection with clear and convincing evidence of the state’s inability to protect them, in their particular sets of circumstances.

Internal Flight Alternatives

[37]     With regards to possible internal flight alternatives for the principal claimant and the adult male claimant in Nigeria, given that federal laws criminalizing same-sex relations and the enumerated violence against the LGBTIQ community are each applicable throughout Nigeria, the panel finds that there is a serious possibility of persecution throughout Nigeria for both the principal claimant and the adult male claimant.

[38]     The panel finds that a viable internal flight alternative does not exist for either adult claimant in Nigeria, as the state and police are their agents of persecution.

The Two Minor Claimants

[39]     The principal claimant testified at the July 8, 2019 sitting that the two minor claimants would also face constant harassment, based on her own sexual orientation. In consideration of the current country condition evidence, the panel finds this testimony to be reasonable. The panel considered this harassment (from homophobic members of society) in conjunction with the adult male claimant’s testimony regarding risk of harm faced by each minor claimant from ritual practices.

[40]     The panel finds that, on a balance of probabilities, there would be no family member protection for either minor claimant in any part of Nigeria. As such, the panel finds that a viable internal flight alternative does not exist for either minor claimant in Nigeria.

CONCLUSION

[41]     The panel finds that there is a serious possibility that each of the four claimants face persecution in Nigeria.

[42]     The panel concludes that the principal claimant is a Convention refugee based on her membership in a particular social group, namely her sexual orientation as a bisexual woman, pursuant to section 96 of the Immigration and Refugee Protection Act.

[43]     The panel also concludes that the adult male claimant and both minor claimants are Convention refugees, as they are each members of a particular social group, namely family members with a sufficient nexus to the principal claimant, a person with a serious possibility of persecution in Nigeria.

[44]     The panel therefore accepts all four claims.

(signed)           C. Ruthven

November 19, 2019

1 Born [XXX], 1977.
2 Born [XXX], 2008.
3 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1).
4 Refugee Protection Division Rules, SOR/2012-256.
5 Confirmation of acceptance to act as designated representative, signed April 13, 2017.
6 Exhibit 2.
7 Tomov, Nikolay Haralam v. M.C.I. (F.C., no. IMM-10058-04), Mosley, November 9, 2005; 2005 FC 1527.
8 Exhibit 1.
9 Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(l)(h) of the Immigration and Refugee Protection Act, IRB, Ottawa, May 1, 2017.
10 Exhibit 20.
11 Exhibit 23.
12 Exhibit 23.
13 Exhibit 8.
14 Exhibit 8 and Exhibit 20.
15 Exhibit 7, National Documentation Package (NDP) for Nigeria (20 August 2019), item 6.1.
16 Exhibit 7, NDP for Nigeria (20 August 2019), item 6.7.
17 Exhibit 7, NDP for Nigeria (20 August 2019), item 2.1.
18 Exhibit 7, NDP for Nigeria (20 August 2019), item 10.8.
19 Exhibit 1, Exhibit 2, Exhibit 3, Exhibit 5, and Exhibit 6.
20 Exhibit 7, NDP for Nigeria (20 August 2019), item 2.1.
21 Exhibit 7, NDP for Nigeria (20 August 2019), item 6.1.

Categories
All Countries Nigeria

2019 RLLR 2

Citation: 2019 RLLR 2
Tribunal: Refugee Protection Division
Date of Decision: December 23, 2019
Panel: Marcelle Bourassa
Counsel for the claimant(s): Nicholas Owodunni
Country: Nigeria
RPD Number: TB9-01394
Associated RPD Numbers: TB9-01395
ATIP Number: A-2020-01124
ATIP Pages: 000014-000024


REASONS FOR DECISION

[1]       The claimant, [XXX] and her daughter, [XXX] (the “minor claimant”), claim to be a citizens of Nigeria, and are claiming refugee protection pursuant to s. 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).i

[2]       The claimant was appointed as the designated representative for the minor claimant.ii

[3]       Since the claimant’s claim involved allegations regarding sexual orientation, the panel considered the Chairperson’s Guidelines on Refugee Claimants involving sexual orientation and gender identity and expression (SOGIE). As the claimant’s claim also related to her gender, the panel also considered the Chairperson’s Guidelines on Women refugee claimants fearing gender­ related persecution.

ALLEGATIONS

[4]       The allegations are set out in the claimant’s Basis of Claim (BOC) form.iii In short, the claimant alleges a fear of persecution based on her sexual orientation from the police, her former husband, his extended family and his associates, her community in Ekiti State, Lagos State and in Abuja. She identifies as a bisexual woman. She alleges that her sexual orientation has been exposed to family members, her community, and the police by her former husband. She alleges that her former husband has also exposed her same sex partner.

[5]       The claimant also alleges a fear of persecution at the hands of her former husband who wants her to undergo a ritual cleaning. She further alleges a fear of persecution for the minor claimant from her former husband who wants to have their daughter circumcized. If returned to Nigeria, she fears she could be arrested and detained by the police or forced to undergo a ritual cleansing.

DETERMINATION

[6]       Having considered the totality of the evidence, the panel finds that the US minor claimant, [XXX], is not a Convention refugee pursuant to section 96 nor is she a person in need of protection under subsection 97(l) of the IRPA.iv Counsel indicated clearly at the beginning of the hearing that he was not leading any evidence with respect to the US minor claimant, a citizen of the United States (“US”).v In respect to this claim, the panel does not have any persuasive evidence before it to suggest that the minor claimant would face a serious possibility of persecution in the US, or that she would face a danger of torture, a risk to her life or a risk of cruel and unusual treatment or punishment in the US were she to return there. Therefore, the panel rejects the claim of the US minor claimant. The remainder of this decision will refer to the claimant.

[7]       Having considered the totality of the evidence, the panel finds the claimant, [XXX] to be a Convention refugee as she has established a well-founded fear of persecution based on a Convention ground, namely her membership in a particular social group, being a bisexual woman.

ANALYSIS

IDENTITY

[8]       The panel finds that the claimant’s personal identity and as a citizen of Nigeria has been established on a balance of probabilities. This has been established through her testimony and the supporting documents on file that include her passport, a certified true copy of which was provided to the Board by CBSA.vi

Claim based on her sexual orientation as a bisexual woman

CREDIBILITY

[9]       Overall, the panel found the claimant was a credible witness and believes what she has alleged in support of her claim. She was overcome with emotion at times and had to pause in giving her testimony. She answered all questions asked with a sufficient level of detail. She also provided supporting documentation. There were no major contradictions or omissions that went to the core of the claim. There were few minor inconsistencies. For example, she did to include the name of her first spouse in Schedule A. She testified that she is divorced from her first husband, [XXX] since 2013 and she refers to him in her BOC narrative. This was also an [XXX] She explained that she included the name of her most recent spouse and didn’t know that she had to write down everything. The panel finds her explanation to be reasonable.

[10]     The claimant provided spontaneous details about her same sex relationship with [XXX] including how they first became involved with one another in 1988 while attending secondary school as boarders in Rivers State and a particular incident when they were discovered together by her mother. They lost contact when the claimant moved away to live with her father in [XXX] in Ondo State. She described in spontaeous detail how they reconnected in [XXX] 2015, meeting by chance when she recognized [XXX] voice while shopping with her daughter at the [XXX]. The panel observed the claimant to ‘light up’ when talking about [XXX] and especially so about their chance encounter when they reconnected after so many years. The claimant testifed that she was going through a particularly bad time as her marriage to [XXX] was both emotionally and physically abusive. [XXX] marriage had not worked out as her husband had divorced her when she did not produce a child. She had come to live and work in Lagos. They resumed their relationship.

[ 11]    The claimant also provided spontaneous details about the evening in [XXX] 2015 when her husband came home unexpectedly and found the claimant and her partner [XXX] being intimate. Pauline escaped. The claimant testified that she tried to work things out with her husband but things only got worse. He told her he was not longer interested in her and became involved with other women. She left with her daughter to live with her sister and her family in [XXX] in [XXX] Ibom State. They returned to [XXX] in [XXX] 2016 and went to live with [XXX] She stated that her husband had divorced her and continued to contact her by phone as he insisted on their daughter undergoing circumcision as he did not want her to turn out to be promiscuous like the claimant. Her husband located them and they fled to [XXX] to stay with a cousin of [XXX]. She made plans to leave Nigeria. [XXX] did not accompany them as she could not obtain a US visa.

[12]     The claimant testified that her former husband subsequently located [XXX] at her home in [XXX] in search of the claimant and outed her to neighbours. She relocated to a friend’s home but the claimant’s former husband located her at her place of work. [XXX] was scarred and eventually left Nigeria and is in the Ukraine. They re-established contact late in 2018 and talk from time to time.

[13]     The claimant testified that her family informed her that her former husband went to her father’s home in [XXX] and reportedly created a scene and outed here to her father and community. She was told that he said that he had gone to the police to report her.

[14]     The claimant testified that she joined the Montreal LGBTQ in 2018 while living in Montreal and participated in various activities including Montreal Pride 20I8. She made a good friend while living in Montreal who provided a letter of support. She relocated to Toronto in [XXX] 2018. She is a member of The [XXX] and completed the Newcomer Orientation and attends the Among Friends program. She is also a member of the [XXX] and attends church service regularly. She also volunteers at the [XXX]. She stated that she is interested in participating in these groups and that it is a place for her to socialize and make friends. She also attended Toronto Pride 2019.

[15]     Since being in Canada, the claimant stated that she has not been involved in a same sex relationship but would like to be as she is lonely. She tried one dating app but it didn’t work out.

[16]     The claimant provided documentation in support of her allegations including:

•           A letter confirming the claimant’s membership in the Montreal [XXX] for 2018-19;vii

•           The claimant’s membership card for the Montreal [XXX] and a ticket stub for [XXX];viii

•           A Statement of Membership for the [XXX] and a record of attendance at the Newcomer Orientation Training.ix

•           Photos of the claimant attending activities at the [XXX] at Montreal Pride 2018, Toronto Pride 2019 and with her girlfriend;x

•           A psychological assessment from Dr. [XXX], that refers to her relationship with her same sex partner.xi

•           A letter of support from [XXX] confirming that she first met the claimant in Montreal at a gay pride club party in [XXX] 018, that they subsequently became friends and that she is aware that the claimant was caught by her husband while with her same sex partner in Nigeria and subsequently left the country;xii

•           An exchange of e-mails between the claimant and her father confirming that he is aware of her sexual orientation that she was caught with Pauline by her former husband, that she has brought shame to him and the entire family and that she should not think of returning to Nigeria as many people are aware of what happened;xiii

•           A letter of support from her sister [XXX] confirming that she is aware of the claimant’s sexual orientation and expressing her acceptance and support for the claimant;xiv

•           An e-mail from [XXX] confirming that she left Nigeria and that the claimant’s former husband located here at her home in Lagos and at work while searching for the claimant and outed her to neighbours,xv

•           A copy of the claimant’s certificate of marriage to [XXX] and a certificate of divorce.xvi

[17]     The panel has considered the claimant’s testimony that she applied for asylum in the US but left before a decision had been made. The claimant testified that they had been living at a Church in Indianapolis and had heard that ICE had picked up people at a church in Texas and deported them. She explained that she was very scarred and couldn’t get in touch with her lawyer. Other persons at the church had left for Canada and she decided to do the same thing. She provided a copy of the documentation in her possession about her asylum application. The panel has considered the evidence before the panel including her reasons for leaving the US and finds, on a balance of probabilities, that the claimant has no status in the US.

[18]     Considering the totality of the evidence before it, the panel finds that the claimant to be a credible witness and therefore believes what she has alleged in support of her claim as set out in her oral and written testimony. Specifically, the panel finds the claimant credible in regards to her bisexual orientation, that she was involved in a same-sex relationship with [XXX] and that, on a balance of probabilities, her sexual orientation has been exposed. Therefore, the panel finds that claimant has established on a balance of probabilities that she is a bisexual woman and has a subjective fear of persecution in Nigeria.

OBJECTIVE BASIS

[19]     The panel finds based on a review of the documentary evidence including the national documentation packagexvii and counsel’s disclosurexviii that the claimant would face more than a mere possibility of persecution should she return to Nigeria as a bisexual woman. The documentation evidence supports her allegations that LGBT persons in her circumstances face persecution from Nigerian authorities.

[20]     The panel has considered the objective documentary evidence that indicates that federal criminal law deems same-sex activity punishable by up to 14 years in prison.xix Also, the Same Marriage Prohibition Act (SSMPA) enacted in 2014 effectively renders illegal all forms of activity supporting or promoting LGBT rights.

[21]     Following the passage of the SSMPA, there were reports of increased threats and harassment against LGBT persons based on perceived sexual orientation or gender identity.xx

[22]     The social context in Nigeria is intolerant of sexual minoritiesxxi. LGBT persons are treated with disdain and disregard for their fundamental human rights and face being ostracized from their community, acts of violence, stigma and reproach.xxii LGBT persons in Nigeria do not openly identify as members of the LGBT community and they may be at risk of mob attacks and arbitrary arrest across Nigeria.

[23]     Another source states that there have been recorded instances of corrective rape against lesbian and bisexual women and women being forced into marriage because of their sexual orientation or gender identity and psychological violence such as being cut off from friends, family disowning their daughters and other subtleties of violence.xxiii

[24]     According to one source, people detained by authorities for same-sex activity have been forced to name others associated with them. Suspects arrested for homosexuality are put under considerable pressure to confess and sentences passed on confessions cannot be appealed.xxiv Chances of getting a fair trial once arrested or persecuted are considered non-existent.xxv

[25]     Human Rights Watch refers to reports of scores of persons being arrested, detained and prosecuted based on their real or perceived sexual orientation and gender identity in its January 2019 report.xxvi

[26]     According to another source, there is no government support for LGBT persons and the National Human Rights Commission does not actively pay attention to cases of human rights violations of LGBT people.xxvii

[27]     Considering all of the evidence including, the documentary evidence as well as the credible evidence of the claimant as to her sexual orientation, the panel finds that hers fear of persecution is objectively well-founded and that she would face more than a mere possibility of persecution should she return to Nigeria as a bisexual woman.

STATE PROTECTION

[28]     Based on the claimant’s personal circumstances as well as the objective country documentation as referred to above, the panel finds on a balance of probabilities that the claimant has rebutted the presumption of state protection with clear and convincing evidence. State protection is not available to the claimant as same-sex activity is criminalized in Nigeria.

INTERNAL FLIGHT ALTERNATIVE

[29]     Based on the objective documentary evidence as set out above, the panel finds on balance of probabilities that there would be a serious possibility of persecution throughout Nigeria for the claimant as same-sex activity is criminalized in Nigeria and as such there is no viable IFA.

[30]     Given the panel’s finding that this issue is determinative of the claim, it is not necessary to consider her claim on the basis on her alleged fear of persecution due to gender based violence.

CONCLUSION

[31]     For the foregoing reasons, the panel finds that the claimant is a Convention refugee and accepts her claim.

(signed)           M. BOURASSA

December 23, 2019

i Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(l)(b).
ii Immigration and Refugee Protection Act, S.C. 2001, c, 27, as amended, section 167(2).
iii Exhibit 2.
iv Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1).
v Identity and country of reference established, can a balance of probabilities, by the US minor claimant’s American passport at Exhibit 1.
vi Exhibit 1, Documentation forwarded by CBSA/IRCC.
vii Exhibit 7, Disclosure received on December 3, 2019, p. 26.
viii Ibid., p. 13;
ix Exhibit 7, Disclosure received on July 3, 2019.
x Exhibit 7, Disclosure received on December 3, 2019, pp. 37-42.
xi Ibid., pp. l-5.
xii Ibid., p. 12.
xiii Ibid., p. 22.
xiv Ibid., p, 23.
xv Ibid., p. 25.
xvi Ibid., pp. 6 and 7.
xvii Exhibit 3, National Documentation Package for Nigeria (20 August 2019).
xviii Exhibit 8, Disclosure received on December 4, 2019.
xix Exhibit 3, National Documentation Package (20 August 2019), item. 6.7.
xx Ibid., item 2.1.
xxi Ibid., item 6.7.
xxii Ibid., item 6.1.
xxiii Ibid., item 6.1.
xxiv Ibid.
xxv Ibid.
xxvi Ibid., item 2.8.
xxvii Ibid., item 6.1.