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All Countries Nigeria

2021 RLLR 52

Citation: 2021 RLLR 52
Tribunal: Refugee Protection Division
Date of Decision: June 18, 2021
Panel: S. Charow
Counsel for the Claimant(s): Udo Mandy Nwobu
Country: Nigeria
RPD Number: TC0-06416
Associated RPD Number(s): TC0-06460 / TC0-06477 / TC0-06478
TC0-06479
ATIP Number: A-2022-01594
ATIP Pages: N/A

REASONS FOR DECISION

[1]       XXXX XXXX (“the principal claimant”), his wife XXXX XXXX (“the associated claimant”), and their children, XXXX XXXX, XXXX XXXX, and XXXX  XXXX (“the minor claimants”), citizens of Nigeria, claim refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (“the IRPA”).1

[2]       The claims were heard jointly as required by Rule 55 (1) of the Refugee Protection Division Rules. The principal claimant was appointed as a designated representative for the minor claimants. The minor claimants relied on the testimony of the principal claimant and the associated claimant.

[3]       In making this decision, I have considered the claimants’ testimony, tendered evidence, and counsel’s written submissions.2 I have also considered and applied the Chairperson’s guidelines on both sexual orientation and gender.3

ALLEGATIONS

[4]       The claimants’ allegations can be found in their Basis of Claim forms (“BOCs”)4 and their amended BOC.5 In short, the claimants allege that the principal claimant is a bisexual man who was caught with his same-sex partner. He fled the city. After he left, the principal claimant was sought by the police. The associated claimant and minor claimants fear cleansing rituals. They allege that there is no state protection available to them, nor any viable internal flight alternatives.

DETERMINATION

[5]       I find the principal claimant to be a Convention refugee. I find that the associated claimant and the minor claimants are neither Convention refugees nor persons in need of protection as they have a viable internal flight alternative (“IFA”) in Port Harcourt. My reasons follow.

ANALYSIS

Identity and Country of Reference Are Established

[6]       The claimants’ personal identities and country of reference have been established, on a balance of probabilities, by their Nigerian passports.6

The Claimants’ Credibility Was Mixed

[7]       I find, overall, the claimants’ credibility was mixed. I noted substantial and significant omissions of key events, all of which tie back to the core of the claim regarding the principal claimant’s sexual orientation. When put to the claimants, these omissions were not adequately explained and each one negatively impacts the claimants’ credibility.

[8]       I further noted one considerable inconsistency, regarding what happened when the principal claimant’s sexual orientation was revealed to his community. The principal claimant’s testimony was inconsistent with the associated claimant’s testimony. This inconsistency was also inadequately explained and again negatively impacts the claimants’ general credibility.

[9]       Lastly, I note that the claimants were in the United States for a lengthy period of time without seeking asylum there. I put this failure to claim asylum to the claimants and was not satisfied that their reply adequately explained the issue. This also negatively impacts their overall credibility.

[10]     I balance this with other detailed, spontaneous, and forthright lines of testimony, including how the principal claimant realized his sexual orientation and about his same-sex partners. The principal claimant’s testimony about how his sexual orientation was revealed was also consistent and rang true. I further note some supporting evidence to establish the principal claimant’s sexual orientation and the subsequent risk to all the claimants, specifically affidavits from the associated claimant’s father, a friend of the principal claimant, their neighbour, and the principal claimant’s sister.7 These affidavits have no clear issues presenting and are consistent with the claimants’ allegations. I further note the presence of two police invitation letters, inviting the principal claimant to the police station to discuss his sexual orientation.8

[11]     In short, although I do find the claimants’ credibility generally tarnished, I still have enough credible evidence before me to find that the principal claimant has established that he is a bisexual man and would be at risk of persecution should he return to Nigeria. I find that the principal claimant has established his subjective fear.

Nexus Is Established for The Principal Claimant

[12]     I find that there is a link between what the principal claimant fears and one of the five Convention grounds due to his membership in a particular social group as a bisexual man. His claim has therefore been assessed under section 96 of the IRPA.

An Objective Basis Has Been Established for the Principal Claimant

[13]     I further find that the principal claimant has an objective basis for his fears, as per the documented conditions for Nigeria. I note that Nigerian legislation effectively all forms of activity supporting or promoting lesbian, gay, bisexual, transgender, and intersex rights. According to the law, anyone convicted of entering into a same-sex marriage or civil union may be sentenced to up to 14 years’ imprisonment. The law also criminalizes the public show of same-sex “amorous affection.”9 Furthermore, there are many incidences of mob violence against LGTBTQ individuals. Law enforcement agents consider the vigilantes’ attacks as an intervention to ease their work to enforce peace in the community; therefore, the victims are the ones who get arrested on the basis of homosexuality and face more stigma, discrimination, unlawful arrest, and detention, extortion and rape.10

[14]     As both subjective fear and objective basis has been established for the principal claimant, I find that he has a well-founded fear of persecution.

There Is No State Protection or Internal Flight Alternative Available for The Principal Claimant

[15]     As per the above analysis, same-sex sexual activity is criminalized throughout Nigeria and homophobic violence continues with impunity. I therefore find that there is clear and convincing evidence that state protection would not be available to the principal claimant.

[16]     Likewise, I find that there is nowhere in Nigeria where the principal claimant would not face a serious possibility of persecution due to his sexual orientation. As the test for an IFA fails on the first prong, I find there is no viable IFA for the principal claimant.

The Remaining Claimants Have A Viable IFA In Port Harcourt

[17]     As I have accepted that the principal claimant is a bisexual man, I also accept that there is a corresponding danger for his wife and children (the remaining claimants) as alleged. However, I must determine if there is another place in Nigeria that it is both safe and reasonable for the remaining claimants.

[18]     In short, to determine whether a viable IFA exists, I must consider a two-prong test.11 I must be satisfied that, on a balance of probabilities, there is no serious possibility of the claimants being persecuted in the part of the country in which I find an IFA exists. Furthermore, conditions in that proposed part of the country must be such that it would not be unreasonable, in all circumstances, including those particular to the claimants, for them to seek refuge there.

[19]     As the claimants were originally from Lagos, I proposed IFA locations of Abuja and Port Harcourt to the claimants. I find that, on a balance of probabilities, the remaining claimants do not face a serious possibility of persecution or risk of harm under section 97 of the IRPA in Port Harcourt and it is not unreasonable for the claimants to relocate to Port Harcourt.

The Remaining Claimants Would Be Safe in Port Harcourt

[20]     The associated claimant testified that it would not be safe in Port Harcourt because if people by there happen to find out about the principal claimant’s sexual orientation or what had happened to the claimants by chance, they will start “warring” against the remaining claimants. When asked how people in Port Harcourt would find out about what had happened, the associated claimant replied that her calls would be traceable.

[21]     The onus of disproving a proposed IFA falls to the claimants. In this case, I find that the claimants’ allegations about the risk in Port Harcourt do not disprove the IFA on the first prong of the test.

[22]     The associated claimant testified that the people in Port Harcourt could find out about what had happened to the claimants “by chance”. To be clear, I do not draw a negative credibility inference from this allegation – I accept that the claimants believe this. However, saying that they may be discovered by chance – without a further explanation as to how regular people in Port Harcourt (or the principal claimant’s family in Lagos) may discover them – is entirely speculative. There has been no evidence tendered to establish this and therefore it does not rebut this prong of the test for an IFA.

[23]     I turn to the second argument made, specifically that the claimants could be traced through the associated claimant’s telephone. I find that this also does not rebut this prong of the IFA. This is because there is no evidence to establish that the people the claimants alleged to fear could access any telephone records.

[24]     I have accepted that the claimants fear the Nigeria Police in Lagos and I must consider whether the remaining claimants would face any risk from them in Port Harcourt. However, there is no confirmation that there is any implemented communication system between police forces or other authorities in Nigeria that would be able to track the claimants. Although I note the presence of a national database, there is no indication that it has been fully implemented. The available documentary evidence states that is limited to nominal data, stolen and lost travel documents, and stolen motor vehicles.12 I find, on a balance of probabilities, that the Nigeria Police would not be able to track the remaining claimants should they relocate to Port Harcourt.

It Would Be Reasonable for The Remaining Claimants To Relocate Ta Port Harcourt

[25]     The claimants allege that they would not be able to relocate to Port Harcourt because the associated claimant could not get a job there or open another business because she doesn’t know anyone there and it is hard to get jobs. She testified that the children could not go to school there because they don’t know anyone there and can’t live there. She also stated that there would be a language barrier in Port Harcourt.

[26]     In considering this IFA, I am mindful that the Federal Court of Appeal has set a very high threshold for the unreasonableness prong of the IFA test. Indeed, “it requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant.”13 The Federal Court of Appeal has also been clear that the personal circumstances of a claimant must be central to the reasonableness analysis.14 The question to be answered on the second prong of the test is whether expecting the claimant to relocate to the proposed IFA location would be “unduly harsh.”15

[27]     I further note that I must consider whether the principal claimant would return to Nigeria with the rest of his family, even though his claim is to be accepted. I find that it has not been established that he will – there has been no corroborating evidence nor testimony tendered to support that speculation. I therefore assess the reasonableness of the proposed IFA for only the remaining claimants, as a female-headed household with four young children (the three minor claimants and one Canadian-born child, who although is not a claimant, must still be considered with regards to their impact on the IFA for the remaining claimants).

[28]     I have also considered the Chairperson’s Guidelines, as cited above, especially as they relate to the claimants’ ability to travel safely to the IFA and to stay there without facing undue hardship.

[29]     For the reasons as outlined below, in all the circumstances, including those particular to the remaining claimants, conditions in Port Harcourt are such that it would not be unreasonable for the claimants to seek refuge there.

[30]     According to the UK Home Office report on internal relocation in Nigeria, generally, a person fearing a non-state actor is likely to be able to relocate to another part of Nigeria depending on the nature of the threat from the non-state agent(s) and the individual circumstances of the person.16 Although there is a fear of the police, I have found that the police could not locate the remaining claimants. I also note that Nigerians have the right to and can generally freely travel around their country.17 Port Harcourt has an airport as well.18

[31]     Although relocation in Port Harcourt could be “relatively difficult” for single women, especially if they have a low level of education or do not benefit from financial support,19 I note that this is not the case for the associated claimant. The associated claimant testified she has a XXXX XXXX XXXX XXXX, which is much higher than the national average for education in Nigeria.20 She has XXXX XXXX XXXX XXXX XXXX and has XXXX XXXX XXXX XXXX. In Canada, she has upgraded skills and is currently completing a program to XXXX XXXX all transferable skills. I find that these are all factors that will facilitate the remaining claimant’s relocation to Port Harcourt.

[32]     I do note that country document evidence indicates that it is difficult to find work in the formal sector but there are opportunities to work in the informal sector such as trading,21 which would be very similar to the associated claimant’s own work experience.

[33]     I further note that among working Nigerians, 57.37 % of women were working full time and 70% of working women were self-employed,22 even though gender inequality is widespread in Nigeria and women tend to find it harder to obtain paid work. However, there is evidence that there is a “withering of cultural restrictions on the perception of women in public affairs” and an “increasing tendency of women to take up economic roles in the family previously reserved for men and to question the myth of the ‘male-as-breadwinner’ in many middle-class and low­ income families.”23

[34]     Having found it is likely that the associated claimant could obtain suitable employment, I find that it is also likely that the remaining claimants could obtain suitable housing. In terms of housing, I also accept that affordability is not the only issue and that country document evidence “indicates that relocation may present greater challenges for single women who do not have access to a support network.”24 However, despite these challenges, many women do indeed head their own households in Nigeria’s southern states. 14.7% of rural households and 21.8% of urban households are headed by women.25

[35]     Female heads of households may encounter discrimination in seeking accommodation and be stigmatized for living alone, especially if they do not have adequate economic resources or male advocates and this may also make them vulnerable to sexual exploitation, as alleged by the claimants. However, an exception to this discrimination may be the case of accommodation offered by formal real estate firms, in which case what matters is the ability to pay and not social norms, gender, or marital status.26

[36]     In terms of language in Port Harcourt, in Nigeria, Pidgin English is spoken by most of the population and that this ensures that language is not an obstacle. 27 The remaining claimants speak English.28 I also note that most Nigerian towns and all large cities have quite large migrant communities from other parts of the country.29 Furthermore, the evidence indicates that non-indigenes are entitled to access essential public services, including health care, primary and secondary education; however, societal norms discourage them from attempting to do so.30 I find, on a balance of probabilities, that the minor claimants (and the Canadian-born child if need be) could access education, even if it requires the payment of school fees. There is no indication as well that the claimants could not freely practice their religion, as there are large Christian populations throughout Nigeria.31

[37]     The claimants have submitted that Port Harcourt would be an unreasonable IFA as there would be no available treatment for the principal claimant’s mental health conditions. But the principal claimant, as outlined above, has not stated that he would return to Nigeria should the remaining claimants return to Nigeria. No evidence has been tendered regarding any of the remaining claimants’ mental health.

[38]     I accept that relocation to Port Harcourt may be difficult for the remaining claimants. However, difficult circumstances do not make Port Harcourt an unreasonable IFA location in the context of a refugee claim. While the remaining claimants’ circumstances may be difficult, I cannot find that these conditions will necessarily place the claimants in jeopardy, the high bar set by the existing jurisprudence. These factors alone are not capable of sustaining a refugee claim and nor do they suggest that the claimants’ life would be in jeopardy or at risk of persecution.

CONCLUSION

[39]     For the above reasons, I find that the principal claimant is a Convention refugee under section 96 of the IRPA, as he faces a serious possibility of persecution upon return to Nigeria.

[40]     His claim is therefore accepted.

[41]     As the remaining claimants have an IFA in Port Harcourt that is safe and reasonable in their particular circumstances, I find they do not face a serious possibility of persecution in Nigeria. The finding of an IFA also applies to the IRPA section 97(1) as, on a balance of probabilities, the remaining claimants do not face a danger of torture, or risk to life, or risk of cruel and unusual treatment or punishment. Consequently, the remaining claimants are neither Convention refugees nor persons in need of protection.

[42]     Their claims are accordingly denied.

(signed) S. Chow

June 18, 2021

Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1).

2 Exhibit 10, written submissions, received May 25, 2021, entered into evidence June 16, 2021.

3 Chairperson’s Guideline 9: Proceedings Be/ore the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective date: May 1, 2017 and The Chairperson ‘s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, Guidelines continued in effect by the Chairperson on June 28, 2002, under ss. 159(l)(h) of the IRPA.

4 Exhibits 2.1-2.5.

5 Exhibit 7.

6 Exhibit 1, referring package from CBSA/IRCC.

7 Exhibit 5, p. 1-8.

8 Exhibit 5, p. 9-20.

9 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 2.1.

10 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 6.1.

11 Thirunavukkarasu v. M.E.I., [1994] 1 F.C. 589 (C.A.); Rasaratnam v. M.E.I., [1992] 1 F.C. 706 (C.A.) at 710.

12 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 10.4.

13 Ranganathan v. Canada (MC]), 2000 CanLII 16789, at para. 14.

14 Rasaratnam v. Canada (MEI), [1992] 1 FC 706, at p. 710.

15 Thirunavukkarasu v. Canada (MEI), 1993 CanLII 3011.

16 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 1.17.

17 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 5.10.

18 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 1.1.

19 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 5.9.

20 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 1.4.

21 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 13.1.

22 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 5.9.

23 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 5.9.

24 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 5.9.

25 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 5.9.

26 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 5.9.

27 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 5.9.

28 Exhibits 2.2-2.4, BOCs, question 1g.

29 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 13.1.

30 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at 1.17.

31 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at 1.7.

Categories
All Countries Nigeria

2021 RLLR 47

Citation: 2021 RLLR 47
Tribunal: Refugee Protection Division
Date of Decision: January 12, 2021
Panel: Joseph Berkovits
Counsel for the Claimant(s): Ugochukwu Udogu
Country: Nigeria
RPD Number: TB8-31369
Associated RPD Number(s):
ATIP Number: A-2022-01594
ATIP Pages: N/A

REASONS FOR DECISION

[1]       Mr. XXXX XXXX, a 44-year-old citizen of Nigeria, has claimed refugee protection pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act, (the IRPA).

[2]       The panel has considered the Chairperson’s Guideline 9: “Proceedings before the IRB involving Sexual Orientation and Gender Identity and Expression.”1

[3]       Pursuant to paragraph 17(c) of the Immigration and Refugee Protection Act and according to Section 29 of the Refugee Protection Division Rules, the Minister informed the Refugee Protection Division that he wished to intervene in this claim by making observations and submitting evidence. The Minister’s submissions formed Exhibit 42. The Minister’ s representative intervened in writing only.

DECISION

[4]       For the reasons given below, the panel finds that the claimant is a Convention refugee.

ALLEGATIONS

[5]       The claimant’s allegations are, in summary, that due to his bisexual sexual orientation, as well as his political opinion, he faces violence, arrest and imprisonment in Nigeria.

[6]       The claimant, who has been an active member of an opposition party, alleges that after a same-sex relationship with a prominent member of another party- the governing party­ ended, his former partner organized reprisals against him, which resulted in the claimant being shot at and injured by people sent over by the governing party, threatening phone calls, and ultimately, a police investigation on the grounds of the claimant’s bisexuality.

[7]       On XXXX XXXX, 2018, the claimant was able to fly from Nigeria to Canada on an assumed identity, and on November 24, 20218 he claimed asylum.

[8]       The claimant alleges that should he return to Nigeria, he faces criminal charges for being bisexual, and that he also faces extra-judicial violence at the hands of political adversaries.

NEXUS

[9]       Given the claimant’s allegations, his claim will be assessed pursuant to section 96 of the IRPA, with the nexus being a person of a particular social group, as a bisexual man. While the claimant’s allegations about his political opinion also forma nexus to section 96 of the IRPA, because of the strong connection between his allegations about his sexual orientation and his political opinion, his claim will primarily assessed on the grounds of membership in a particular social group.

IDENTITY

[10]     While the claimant flew into Canada under an assumed identity, the claimant’s personal identity as a citizen of Nigeria has been established by a certified copy of his true passport. Also, biometric information shared between Canada and the United States reveals that his identity is as claimed in his application.3

[11]     The panel therefore finds that the claimant has established his identity, on a balance of probabilities.

CREDIBILITY

Introduction:

[12]     When a claimant swears that certain facts are true, this creates a presumption that they are true, unless there is valid reason to doubt their truthfulness. Hence, as a corollary, there is no general legal requirement for a claimant to corroborate sworn testimony that is uncontradicted and otherwise credible.

[13]     In terms of the claimant’s general credibility, and in light of the evidence below, the panel has found him to be a credible witness and the panel therefore accepts what he has alleged in his oral testimony and in his basis of claim form.

The Minister’s Intervention:

[14]     It was the position of the Minister that “the claimant has not been consistent in his answers to a point where it is difficult to discern the truth of his statements.”4 The panel put these concerns to the claimant, and will consider each one separately below;

[15]     Firstly, the Minister submitted that, “The claimant did not declare that he was denied a US visa in his Schedule A, even though he clearly admitted that fact in his last US NIV application.” According to the claimant, he did verbally inform the officer at the airport in Toronto that he had applied for a US visa after the officer asked if he if had or had not. He further testified that he was under the impression that the officer wrote his answer down and that he had no intent to be misleading. It was the submission of the claimant’s counsel that the failure to complete Schedule A correctly constituted an error or a miscommunication rather than an intentional effort to mislead Immigration. Ultimately, the panel agrees and does not find that the failure to properly fill in Schedule A, undermines the claimant’s credibility in an substantial way, especially in light of the claimant’s testimony, which the panel accepts as credible, that he thought that his verbal answer to the officer at the airport was written down and kept on record. As such, the panel does not find that this concern, in and of itself, is sufficient to undermine the claimant’s credibility.

[16]     Secondly, the Minister submitted that, “The claimant declared that he travelled alone and also inferred that he travelled with someone. The Minister does not believe that both statements can be true.” The claimant confirmed at the hearing that he travelled alone from Abuja, stating that he last saw the agent assisting him when he got onto the plan in Abuja. However, in the narrative attached to his Basis of Claim, the claimant does state that “we transited in Cairo International Airport in Egypt. We spent some hours in Cairo Airport before we now took off from Cairo Airport on that same day of XXXX XXXX 2018. Then we arrived in Toronto Canada International Airport on the XXXX XXXX 2018 and filed for asylum.”5 At the hearing, the claimant testified that by using “we” in the previous sentences, he merely meant to refer to the other passengers on the airplane, meaning that he was not the only person on the airplane. The panel accepts this explanation as reasonable, as the usage of “we” does not have to interpreted literally and can reasonably be employed in a more colloquial fashion. As such, and in light of the claimant’s explanation, the word “we” does not need to be interpreted with such precision in this context, especially in light of the fact that while the claimant speaks English, it is not his first language. Overall, the panel does not find that anything substantial turns on this issue in terms of the claimant’s overall credibility.

[17]     Thirdly, the Minister submitted that “The claimant swore by declaration that he came to Canada on XXXX XXXX 2018 while officer notes clearly show that he arrived and was examined on XXXX XXXX 2018.” After hearing the claimant’s testimony at the hearing, as well as referring to the documentary evidence in Exhibit 16 , the panel is not persuaded that this issue is substantially affects the claimant’s credibility. The claimant’s explanation for the discrepancy was clear and reasonable. According to the claimant, he arrived at the Toronto airport on XXXX XXXX , 2018, and made his claim for asylum at that point. However, he returned for a second interview at the Immigration Officer on December 3, 2018. These interview notes are included in Exhibit 1 and are dated December 3, 2018.7 The claimant subsequently filed his Basis of Claim Form on December 17, 2018, and then was given up to two weeks to file his narrative, which he did by December 28, 2018. At the time that the claimant filed his narrative, he included the declaration referenced by the Minister, on December 17, 2018. At this point, however, according to the claimant’s counsel, a template was used that referenced to the date that the claimant attended his second interview, which was December 3, 2018, rather than his date of entry and initial entry to Canada, which was XXXX XXXX, 2018. The claimant’s counsel submitted that this was essentially a clerical error due to the multiple dates involved and did not represent an attempt to mislead the Minister. The panel does not find that the claimant’s credibility can be undermined in any substantial way by an incorrect date being given in a statutory declaration that the panel is persuaded was done inadvertently, and that, in and of itself, does not in the panel’s view, speak to the merits of the claim in any meaningful way.

 [18]    Fourthly, the Minister submitted that “The claimant submitted a BOC narrative which cited sexual orientation as the basis of his claim as well as political opinion. This differs from what he told the examining officer upon arrival to Canada.” At the hearing, the claimant testified that as a person coming from a country where bisexuality is criminalized, he initially felt frightened to disclose his bisexuality, for fear that he would be turned back to his home country immediately. Even though the claimant is not unsophisticated, and is a XXXX in Nigeria, he testified that he came from a closed and homophobic society where one’s bisexuality is kept secret. He testified that he felt fear at the prospect of talking to a government official about his sexuality, and the fact that she was wearing a uniform made him feel particularly scared. However, it should be noted that by the second interview with the Immigration Office, on December 3, 2018, which was well before the claimant submitted his narrative in December 28, 2018, the attending officer’s notes do reflect the claimant’s answer that he is bisexual.8

[19]     The panel accepts the claimant’s explanation for his initial reluctance to disclose his bisexuality to the Immigration Officer as reasonable, particularly given his objective country conditions, where bisexuality is criminalized, and as will be discussed in a separate section below. The panel also notes section 7.4 of the Chairperson’s Guideline 9: “Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression,” wherein it is stated that: “Decision-makers should examine whether there are cultural, psychological or other barriers that may reasonably explain [an] inconsistency. For instance, it may be difficult for an individual who has concealed their SOGIE to disclose and discuss it with government authorities at a port of entry, which may give rise to an inconsistency between information from the port-of-entry interview and testimony at a hearing.”9 In this instance, the claimant did, however, disclose his sexual orientation fairly soon after his initial port of entry interview, by December 3, 2018, and well before he filed his Basis of Claim Narrative on December 28, 2018. Overall, the panel finds that claimant’s credibility is not undermined in any substantial way by this issue raised by the Minister.

[20]     Fifthly, the Minister submits that it is difficult to know what is the truth, and what is part of an evolving narrative.” The panel understands this submission to be connected to the previous submission which the panel has already addressed in the previous paragraph, but also to engender a more general concern with the claimant’s credibility. As will be seen in the analysis below, during the course of a lengthy hearing, the panel found the claimant’s testimony about the core of his claim, in particular as it related to his sexual orientation, to be consistent both during the course of the hearing, and to be consistent with his Basis of Claim, as well as well supported by corroborating documents. While, as will be discussed below, his allegations on the basis of his political opinion were less central to his section 96 claim, there was no reason for the panel to find that the claimant was being untruthful about them. Overall, and for the reasons below, however, the panel found the claimant to be truthful and credible.

The Claimant’s Sexual Orientation:

[21]     According to the claimant, he first realized that he had feelings for other males when he was in secondary school and felt a ‘chemistry” with a classmate named XXXX and this evolved into a physical relationship. After graduation, the two were unable to keep in touch. The claimant detailed other relationships with men that followed, as well as his unhappy marriage with his wife.

[22]     In 2016, during the course of his work as a political organizer for the leading opposition party in Nigeria, the PDP, the claimant met an eventual partner, XXXX, a prominent and powerful organizer for the governing party, while the two campaigning for their respective candidate. The claimant testified that he “could not resist a handsome man,” and at the claimant’s initiative, the two started dating clandestinely. However, according to the claimant, XXXX started demanding that the claimant switch political parties and began exhibiting controlling behaviour overall, something that the claimant found frightening. The claimant stated that he commenced seeing another man XXXXS who became the claimant’s partner to this day, although the claimant’s partner is still in Nigeria. To help corroborate his testimony about their relationship, the claimant submitted photos and print-outs of numerous text messages exchanges between himself and XXXX.10

[23]     Soon after the claimant commenced this new relationship, however, XXXX found out, and in October, 2017, sent “thugs” over to a private party he was having with his new partner, and this resulted in the claimant being shot in the leg. Being afraid to go to the hospital for fear of a police report, which he testified would result in the authorities finding out about the bisexual relationships he was having, he went to stay with a traditional medical practitioner who would not report the bullet wound to the police. The claimant submitted into evidence two photographs of the bullet wound to his leg.11 However, the claimant’s wife found him some three or four days later, still being treated by the practitioner. According to the claimant, his wife, instead of being sympathetic to him, became very angry, confronted him about his bisexuality, reported him to their pastor, and demanded that the claimant call him. The claimant testified that he was too afraid and ashamed to call his pastor. Nevertheless, the claimant’s pastor ultimately called the claimant and informed him that his wife was leaving him.

[24]     Only a few months later, by January, 2018, the claimant received a phone call from a police inspector from his home city of Benin City, notifying him of a complaint that had been made against him on the grounds of his sexual orientation, and ordering him to turn himself in. In the meantime, the claimant started receiving threatening phone calls from either XXXX or his friends. According to the claimant, the fact that XXXX was also bisexual did not make him any less of a danger to him, because XXXX was so well connected politically, that he was able to insulate himself from homophobia more than the claimant could, who was no as powerful and well-connected.

[25]     As a result of these threats from both the police as well as from his former partner, XXXX the claimant decided to leave Nigeria, using the services of an agent who was able to obtain travelling documents and a passport of a man with the same last name as the claimant. The claimant testified that he keeps in touch with his cousin in Nigeria, who informed him that the police are still looking for him. The claimant’s fear of the police was understandable. As will be discussed further below, the passing of the Same Sex Marriage Prohibition Act in 2014 has, according to an objective observer, resulted in “increased harassment and threats against” LGBTQ people. “According to [Human Rights Watch], the law had become a tool used by police and members of the public to legitimize human rights violations against LGBTI persons such as torture, sexual violence, arbitrary detention, extortion, and violations of due process rights.”12

[26]     Since coming to Canada, the claimant has been able to participate in LGBTQ positive events, such as social activities sponsored by the 519 Community Centre, which he attended prior to the pandemic. The claimant provided corroboration of his participation in LGBTQ activities by means of a letter from the LGBTQ Refugee Programme at the 519 Centre, as well as his attendance records at a Newcomer Training Programme at the 519 Centre, as well as his membership card in their “Among Friends Program.”13

The Claimant’s Political Opinion

[27]     While the claimant also submitted that he was being persecuted as a result of his political opinion, the panel finds that his political opinions were less central to his section 96 claim than his membership in a particular social group. Nevertheless, the claimant gave credible evidence about his political activities. The claimant met his previous partner through his political activities, and the claimant demonstrated credible knowledge about this aspect of his life. The claimant established that he belonged to an opposition party, submitted into evidence his party membership card14, gave credible evidence that demonstrated that he was well-versed in his country’s political situation and in his country’s political issues, and described how his former partner’s political party was adversarial to his own.

[28]     However, the claimant’s evidence about his political activity, in the panel’s view, was more in support of allegations about his persecution on the grounds of his bisexuality rather than helping to establish that his political opinion, in their own right, were grounds for his persecution. The claimant’s political opinions are relevant inasmuch as they help explain how and why his previous partner, who is powerful and well-connected, exposed him to danger and persecution, but the claimant’s political opinions and their connection to a nexus ground are otherwise not sufficiently delineated to stand on their own as a grounds for persecution. Ultimately, the panel finds that the reason for the dispute between the claimant and his former partner is just as much grounded in his sexual identity as in his political opinion, and further analysis of his political opinion is not necessary.

[29]     To be clear, however, the panel does not find that that the claimant’s evidence about his political activity undermined his credibility overall, just that his evidence on these grounds was not as central to his claim to protection as his sexual orientation.

Conclusion:

[30]     The panel therefore finds that the claimant’s allegations about his membership in a particular social group have been, on a balance of probabilities, credibly established. His testimony about his relationships with men rang true, and his most recent relationship was corroborated by multiple text messages, as already referenced above.

[31]     The panel therefore finds that on a balance of probabilities that the claimant’s subjective fear of persecution is both credible and that it poses an ongoing threat.

OBJECTIVE EVIDENCE:

[32]     The claimant’s experience of persecution at the hands of his community and the state is not unique to him but is shared by the LGBTQ community in Nigeria at large. As Amnesty International has observed, “Human rights abuses continue to be committed against people suspected of engaging in same-sex relations or for having a non-conventional gender identity.”15 As such, the objective country evidence supports the claimant’s allegations that LGBTQ people are at a serious risk of persecution by the state, which criminalizes same sex relationships.

[33]     Because same sex acts are criminalized in Nigeria, pursuant to the Nigerian Federal Criminal Code, anyone having physical relations with a member of the same sex is considered to be acting “against the order of nature,” and to be committing an “unnatural offence,” and is subject to a 14-year prison term. The Same Sex Marriage (Prohibition) Act also criminalizes same sex marriages and civil unions, as well as gay clubs, gay organizations, meeting of gay people, and the support of LGBT organizations. For example, anyone who supports or participates in pro-LGBT organizations is liable to a 10- year prison term.16

[34]     Furthermore, while the Constitution of Nigeria “offers general legislative guarantees to the rights to life, privacy, association, assembly, dignity, and freedom of expression…. there is no legislation explicitly protecting sexual minorities from targeted violence or discrimination.”17 The situation of LGTBQ people is made even more difficult by their treatment by the police, who arrest LGBTQ on the basis of “physical appearances, or on other pretexts,” blackmail and extort them, and mistreat them in custody.18

[35]     As the claimant himself has experienced by the attitude towards him and his family by his community, acceptance of LGBTQ people in Nigerian society is very low. According to a survey conducted as recently as in 2015, 87 percent of Nigerians “said that they would not be willing to accept a family member who is homosexual…. And 81 percent did not believe that homosexuals should have the same rights as other Nigerians.”19

[36]     As one objective study has concluded, “The roles of discriminatory laws are evident in the forms of violence perpetrated by both state and non-state actors. Impunity is one of the driving forces of the continued violation of [LGBTQ] people in Nigeria. [LGBTQ] people find it extremely difficult to approach relevant government agencies for redress, for fear of stigma, more violence and discrimination…. Actions by non-state actors are further validated by the behaviour of state actors who also extort [LGBTQ] people by evoking fear of legal reprisal…. This is not surprising given the fact that these government institutions are often the perpetrators of harm themselves or act in collusion with non-state actors.”20

[37]     Overall, the panel finds that there is a well-documented basis for the claimant’s objective fear of persecution on the grounds of being a bisexual man.

STATE PROTECTION

[38]     The principal claimant’s fear that, as a bisexual man, is without adequate state protection from homophobia is corroborated by the objective evidence. Not only does the objective evidence demonstrate that LGBTQ people are without adequate state protection, it also demonstrates that in many instances the state is itself a persecutor of LGBTQ people. As one objective report has observed, “The initiative for Equal Rights (TIER) noted in its annual report that ‘in 2017, there were several instances of mass arrests based on perceived sexual orientation… a number of cases of arbitrary arrests and unlawful detention were perpetrated by the police.”21

[39]     Also, “Sources explained that sexual minorities tend not to file reports with authorities out of fear of reprisals from authorities… [S]exual minorities who report abuse or discrimination are ‘ridiculed’ by authorities…. The Amnesty International representative indicated that the judicial system is not effective in investigating crimes committed against sexual minorities and ‘[i]n most cases, crimes committed against sexual minorities are not even investigated, [and] vigilante group attacks are not often reported due to fear of repercussions and further stigmatization by law enforcement officers.”22 Furthermore, it has been noted by objective observers that “there is no government-supported helpline for sexual minorities who face violence.”23

[40]     Given the objective evidence of country conditions discussed above, as a bisexual man, the panel finds that adequate state protection would not be available to him.

INTERNAL FLIGHT ALTERNATIVE

[41]     As the panel finds that an agent of persecution is the state by virtue of sexual minorities being criminalized, the panel finds that there is no place in Nigerian where the claimant could reside safely. The panel also notes that the claimant is politically active and likely well known within political circles, which increases the likelihood of him being discovered in an any internal flight alternative location, making it more dangerous for him to live anywhere in Nigeria. Therefore, there is no viable internal flight alternative for the claimant in his particular circumstances.

CONCLUSION

[42]     The panel is persuaded that should the claimant return to Nigeria, he would face a serious possibility of persecution at the hands of the Nigerian community as well as agents of the state, namely the police. Based on the totality of the evidence, the panel finds that the claimant faces a serious possibility of persecution in Nigeria pursuant to section 96 of the IRPA.

[43]     The claim for protection is therefore accepted.

(signed) Joseph Berkovits

12 January 2021

1 Guidelines issued by the Chairperson pursuant to subsection 65(3) of the Immigration Act, IRB, Ottawa, November, 13, 1996

2 Exhibit 4, Minister’s Written Intervention

3 Exhibit 1, Package of information from the referring CBSA/IRCC.

4 Exhibit 4, Minister’s Written Intervention, p. 5

5  Exhibit 2, Basis of Claim Form, Narrative, paragraph 23

6 Exhibit 1, Package of information from the referring CBSA/IRCC.

7 Exhibit 1, “RIPC= Examining Officer Notes,” pp. 1-5

8 Ibid.

 9 Guidelines issued by the Chairperson pursuant to subsection 65(3) of the Immigration Act, IRB, Ottawa, November, 13, 1996, paragraph 7.4, np

10 Exhibit 5, Claimant Disclosure, p. 17, (photo of current partner), pp. 18-48, (Print-out of text messages between the claimant and his current partner). Exhibit 6, Claimant Disclosure, pp. 49-50, (Print out of text messages between the claimant and his current partner).

11 Exhibit 5, Claimant Disclosure, pp. 15-16, (photographs of bullet wound)

12 Exhibit 3, National Documentation Package for Nigeria, (July 31, 2020), Item 2.1, p. 39

13 Exhibit 5, Claimant Disclosure, pp. 10-14

14 Exhibit 7, Claimant Disclosure, p. 1, Party Membership Card

15 Exhibit 3, National Documentation Package for Nigeria, (July 31, 2020), Item 2.3, p. 22

16 Exhibit 3, National Documentation Package for Nigeria, (July 31, 2020), Item 1.3, p. 46

17 Ibid, p. 50

18 Ibid, p. 47

19 Exhibit 3, National Documentation Package for Nigeria, (July 31, 2020), Item 6.1, 5

20 Exhibit 3, National Documentation Package for Nigeria, (July 31, 2020), Item 6.9, p. 15.

21 Exhibit 3, National Documentation Package for Nigeria, (July 31, 2020), Item 612. P. 14

22 Exhibit 3, National Documentation Package for Nigeria, (July 31, 2020(, Item 6.11, p. 39

23 Exhibit 3, National Documentation Package for Nigeria, (July 31, 2020), Item 6.11, p. 48

Categories
All Countries Nigeria

2019 RLLR 214

Citation: 2019 RLLR 214
Tribunal: Refugee Protection Division
Date of Decision: June 19, 2019
Panel: Luna-Martine Jean
Counsel for the Claimant(s): Melissa Singer
Country: Nigeria
RPD Number: MB8-03575
Associated RPD Number(s): MB8-03576, MB8-03652, MB8-03654, MB8-03655
ATIP Number: A-2020-00859
ATIP Pages: 000344-000356

REASONS FOR DECISION

INTRODUCTION

[1]       The claimant, XXXX XXXX XXXX, her adult daughter, XXXX XXXX XXXX, and her minor grand-children, XXXX XXXX XXXX, XXXX XXXX XXXX and XXXX XXXX XXXX, are citizens of Nigeria. They seek refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).

[2]       The panel appointed, XXXX XXXX XXXX, the designated representative of her children, the minor claimants.

DETERMINATION

[3]       For the following reasons, the panel concludes that the claimants, XXXX XXXX XXXX, XXXX XXXX XXXX, XXXX XXXX XXXX and XXXX XXXX XXXX are “Convention refugees” pursuant to section 96 of IRPA.

[4]       For the following reasons, the panel concludes that the claimant, XXXX XXXX XXXX, is neither a “Convention refugee” pursuant to section 96 of IRPA nor a “person in need of protection” pursuant to subsection 97(1) of IRPA.

[5]       In rendering this decision, the panel considered Guideline 4: “Women Refugees Claimants Fearing Gender-Related Persecution”; Guideline 9: “Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression”; the “Policy on the Use of Jurisprudential Guides” and the Jurisprudential Guide TB7-19851.

THE CLAIMANTS: XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX AND XXXX XXXX XXXX

Allegations

[6]       The claimants’ allegations are found in a narrative attached to Ms. XXXX Basis of Claim form (BOC) submitted on March 6, 2018, and an amended narrative dated March 13, 2019. The allegations can be summarized as follow.

Allegations in the BOC

[7]       Ms. XXXX indicated that her husband’s family practice female genital mutilation (FGM). This tradition is performed on girls who are nine years old. Ms. XXXX indicated that her opposition to FGM has led to her being subjected to verbal, physical and psychological abuse from her in-laws. In particular, she was beaten on six occasions by her sister-in-law, who wanted to forcefully take her eldest daughter, XXXX, to perform FGM.

[8]       Subsequently, Ms. XXXX and her family moved to Ikorodu for safety. However, members of the Badoo cult attacked and killed their pregnant neighbor for ritual purposes. The claimants then decided to flee to the United States for safety, on XXXX XXXX, 2017.

[9]       The claimants entered Canada on XXXX XXXX, 2018.

Allegations in the amended narrative

[10]     Ms. XXXX added that she had vowed not to circumcise her daughters, after witnessing the death of her brother-in-law (XXXXXXXX)’s daughter, on XXXX XXXX, 2015, of complications from the circumcision procedure.

[11]     On XXXX XXXX XXXX 2016, Mrs. XXXX XXXX, Ms. XXXX sister-in-law visited Ms. XXXX with five family members, to announce that XXXX would be circumcised on her ninth birthday. On XXXX XXXX, 2016, her in-laws came once again to remind Ms. XXXX and her husband that her daughter, XXXX, was to be circumcised. She was informed that no one in the family could escape this process. Ms. XXXX received subsequent visits from her in-laws on XXXX XXXX, 2016, and XXXX XXXX, 2017.

[12]     Ms. XXXX further indicated that Ms. XXXX would subject her to verbal, physical and emotional abuse. Ms. XXXX had to be hospitalized due to injuries sustained from the physical assaults.

[13]     Ms. XXXX added that following the death of her pregnant neighbor, by the hands of members of the Badoo cult on XXXX XXXX XXXX 2017, she was planning to move to another state. However, her sister-in-law works for the XXXX XXXX XXXX XXXX XXXX XXXX XXXX (XXXX), which has been rumored to work with the Badoo cult group. Ms. XXXX believes her sister-in-law to be “well connected” and have the means to locate her to perform the circumcision ceremony on XXXX.

[14]     Ms. XXXX indicated that, while in the United States, her husband visited them from XXXX XXXX XXXX 2017 and returned to Nigeria on XXXX XXXX, 2018. At that time, her husband informed her that his family is still adamant on circumcising XXXX and were pressuring to have the family return to Nigeria.

[15]     In addition, on XXXX XXXX, 2018, Ms. XXXX indicated that she received he call from her brother-in-law, XXXX XXXX. He informed Ms. XXXX that the in-laws were continuing to pressure her husband to have the claimants return to Nigeria at all costs, and had even called the United States immigration. Upon hearing this news, the claimants left the United States and entered Canada, on XXXX XXXX, 2018.

Analysis

Identity

[16]     The claimant’s personal and national identities as citizens of Nigeria are established, on a balance of probabilities, by the copies of their respective Nigerian passport.

Credibility

[17]     The panel found that Ms. XXXX testified in a spontaneous, sincere, detailed and straightforward manner. The panel noted no contradictions, omissions, inconsistencies or implausibility for which the claimants did not provide reasonable explanations.

[18]     At the hearing, Ms. XXXX credibly testified that she first learned that her in-laws practiced FGM when they were preparing the circumcision of her brother-in-law’s daughter, XXXX. She indicated XXXX was circumcised on XXXX XXXX XXXX 2014, and became ill following the procedure. Ms. XXXX rendered a credible and emotional testimony while explaining that XXXX fell ill from an infection shortly after the procedure and passed away XXXX months later on XXXX XXXX, 2015.

[19]     Ms. XXXX then testified on her sister-in-law’s visit on XXXX XXXX XXXX2016. She recounted in detail that she was caring for her son in a bedroom and overheard a conversation between her husband and sister-in-law about circumcision. Ms. XXXX was called to the living room and her sister-in-law advised that XXXX would be circumcised whether Ms. XXXX liked it or no. Ms. XXXX did not respond to her sister-in-law at that time, but later had a discussion with her husband stating her opposition to FGM.

[20]     Ms. XXXX also testified about her sister-in-law’s visit on XXXX XXXX, 2016, and that she was accompanied by six men, whom she believes to be thugs. Ms. XXXX knew these men to be involved in criminal activities, such as harassment and extortion. Ms. XXXX explained that she was threatened during the conversation because she dared to look at her sister-in-law, Ms. XXXX, in the eyes and refused to follow her orders, which is to consent to XXXX circumcision. Her sister­ in-law said that Ms. XXXX would lose her life if she continued to defy her. Ms. XXXX indicated that she was slapped and punched by her sister-in-law and a neighbor had to intervene to stop the assault. The panel finds that Ms. XXXX testified in a credible manner with respect to the incident that transpired on XXXX XXXX, 2016.

[21]     Ms. XXXX explained that the most severe assault occurred on XXXX XXXX, 2017. Ms. XXXX received another visit from three sisters-in law, Ms. XXXX, XXXX XXXX and XXXX XXXX, and the thugs who accompanied Ms. XXXX. Ms. XXXX testified that another argument ensued regarding XXXX circumcision and she was physically assaulted by Ms. XXXX and Ms. XXXX, while Ms. XXXX was encouraging them to continue to hit Ms. XXXX. Further, Ms. XXXX explained that her husband intervened to stop the fight and, in turn, was attacked and stabbed by the thugs who accompanied Ms. XXXX. Ms. XXXX testified that she sought medical attention on XXXX XXXX, 2017, due to abdominal pain from being kicked in her belly during the fight. The panel finds that Ms. XXXX testimony in this regard to be credible. Her testimony is further corroborated by a medical report respecting her admission to the hospital on XXXX XXXX, 2017, stating that Mr. XXXX was admitted to the hospital on XXXX XXXX XXXX 2017, due to being stab wound in his back, an affidavit from her husband1. The panel also notes that Ms. XXXX has submitted an affidavit from a neighbor who witnessed her being beaten by her in-laws on two occasions: XXXX XXXX, 2016 and XXXX XXXX, 2016, which further supports Ms. XXXX allegations respecting the abuse she endured due to her opposition to FGM2.

[22]     In addition, at the hearing, Ms. XXXX testified that she fears both her daughters, XXXX and XXXX, would be forcefully subjected to FGM if retumed to Nigeria. She indicated that as XXXX is approaching nine years of age, she fears that her in-laws will want to perform the circumcision ritual on her as well. The panel finds that Ms. XXXX testimony was sincere and spontaneous considering that her immediate fear, upon leaving Nigeria, was for her daughter XXXX who was at the time nine years old, the age when circumcision occurs amongst her in-laws.

[23]     Overall, the panel considered Ms. XXXX credible testimony and finds that the claimants have demonstrated, on a balance of probabilities, the essential elements of their allegations.

[24]     In addition, the panel finds that Ms. XXXX allegations are corroborated by the objective documentary evidence on the prevalence of FGM in Nigeria. According the objective documentary evidence, Nigeria is the country with the largest number of instances of FGM in the world3. Approximately, 20 million women and girls have undergone FGM, with the highest prevalence in South East and South West Zones, which is where Ms. XXXX in-laws reside, in Lagos (in the South West)4. Further, the objective documentary evidence indicates the following:

FGM is most likely to take place in Nigeria during childhood. The major exception is when women in certain ethnic groups undergo FGM during the birth of their first child, because of a belief that it is critical that a baby not touch its mother’s clitoris (Alo & Babatunde, 2011). Many girls are cut as infants (16% of girls aged 0 to 14 undergo FGM before their first birthday), and most women (82%) aged 15 to 49 who have had FGM state that they were cut before the age of five (DHS 2013, pp.352-3).5

[25]     Although the objective documentary evidence indicates that FGM is most likely to occur during infancy, the date suggests a wide age range where girls would be subjected to this practice. In this case, based on an analysis of Ms. XXXX testimony and the objective documentary evidence, the panel concludes that XXXX and XXXX now respectively eleven and seven years old, fit the profile of girls who would be subjected to FGM in Nigeria. The panel reaches this conclusion based on the prevalence of FGM in the South West zone of Nigeria, which includes Lagos state and the prevalence of the practice amongst Ms. XXXX in-laws.

State Protection

[26]     The panel also considered whether the claimants could avail themselves of the protection of the Nigerian authorities against Ms. XXXX in-laws. In this case, Ms. XXXX testified that she reported the XXXX XXXX, 2017, incident to the police on XXXX XXXX, 2017. However, concerning her in-laws’ persistence on circumcising XXXX, Ms. XXXX was told that the police would not intervene as it was a cultural matter. Ms. XXXX added that the police counseled her to allow her daughter to be circumcising it would be bring peace to her home. The panel finds Ms. XXXX testimony to be credible and is also corroborated by the objective documentary evidence.

[27]     According to the objective documentary evidence, Nigeria has adopted the Violence against Persons Prohibition Act (VAPP), which prohibits FGM.6 However, the VAPP only applies in the Federal Capital Territory of Abuja. Additionally, thirteen states, including Lagos State, has adopted anti-FGM legislation.7 However, the objective documentary evidence also states that the practice of FGM is “widespread, with low rates of reporting and prosecution”.8 In addition, there is a disparity between the adoption and the implementation of anti-FGM legislation. The objective documentary evidence reveals that the anti-FGM laws are “weak and in most times not even implemented”.9 The objective documentary evidence indicates:

Federal law criminalizes female circumcision or genital mutilation, but the federal government took no legal action to curb the practice. While 12 states banned FGM/C, once a state legislature criminalizes FGM/C, NGOs found they had to convince local authorities that state laws apply in their districts.10

[28]     Further, the objective documentary evidence states the following with respect to the police’s attitude towards FGM:

However, the Australian DFAT reports that it “assesses as credible advice from local sources that it remains extremely difficult for women and girls to obtain protection from FGM” because despite an increase in reports to the police and the NHRC, community support for these practices and the traditional attitude of police help to support them (Australia 9 Mar. 2018, para. 3.49)11.

[29]     In light of the foregoing, the panel concludes that the claimants have rebutted the presumption of state protection. The evidence shows, in a clear and convincing manner, that individuals who fear or oppose FGM cannot obtain adequate state protection.

Internal Flight Alternative

[30]     The panel finds that the claimants do not have a viable internal flight alternative (IFA) in Nigeria. The panel considered whether the claimants could safely relocate to Abuja, Ibadan or Port Harcourt. The panel considered the interests and the capacity of Ms. XXXX in-laws to locate and pursue the family in the proposed IFAs.

[31]     Ms. XXXX testified that her in-laws, and in particular her sister-in-law, Ms. XXXX, has continued to search for the family, in spite of their having left Nigeria. Ms. XXXX testified that she received a phone call from her brother-in-law, XXXX XXXX on XXXX XXXX, 2018. Her brother-in-law is still upset by his daughter’s death, following a circumcision procedure. He advised Ms. XXXX that Ms. XXXX has instructed the family to continue to look for the claimants.

[32]     Further, Ms. XXXX testified that her sister-in-law is a powerful person. She works for the XXXX and is also dating the XXXX of the XXXX local chapter in Lagos. Ms. XXXX believes that her sister-in-law could use XXXX resources, both at the local and national level, to locate them throughout Nigeria, such as handing out a picture of Ms. XXXX to her contacts at the various local chapters to have them search for her. The panel also considered Ms. XXXX testimony that her sister-in-law entertains relationships with criminal elements. These thugs have accompanied her sister-in-law during her visit with Ms. XXXX on XXXX XXXX, 2017. They stabbed her husband, while Ms. XXXX was beaten by her in-laws. In addition, the panel also took into consideration Ms. XXXX testimony that her in-laws have resorted to physical violence against her, which caused her to be hospitalized because of her refusal to submit their daughter XXXX to the circumcision ceremony.

[33]     Considering all the above, the panel finds that the claimants have demonstrated, on a balance of probabilities, that Ms. XXXX in-laws have the interests and the necessary motivation to pursue the claimants in the proposed IFAs. Consequently, the panel finds that the claimants could not live safely in the proposed IFAs.

[34]     Given the panel’s conclusion that the claimants face a serious possibility of persecution in the proposed IFAs, the panel does not need to examine the reasonableness of relocating to the proposed IFAs and the factors outlined in the Jurisprudential Guide TB7-19851. The panel notes that the personal circumstances of the claimants are markedly different from that of the claimant described in TB7-19851. Although the claimants fear non-state actors, their fear is not localised. The panel reaches this conclusion based on Ms. XXXX credible testimony on the interests, motivation and capacity of her in-laws, and in particular her sister-in-law to locate them. This includes threatening and beating Ms. XXXX to the point that she required hospitalization. The panel also rests this conclusion that Ms. XXXX has employed the help of criminals in order to threaten and physical assault Ms. XXXX in order to secure the circumcision of her daughter. The panel also takes the consideration that Ms. XXXX sister-in-law has connections nationwide through her employment which she could use to locate the claimants.

[35]     Consequently, the panel determines that XXXX XXXX XXXX and XXXX XXXX XXXX have demonstrated a serious possibility of persecution under section 96 of IRPA, by virtue of their membership in a particular social group being girls who would be subjected to FGM. In addition, the panel concludes that XXXX XXXX XXXX and XXXX XXXX XXXX have demonstrated a serious possibility of persecution due to their membership in a particular social group, namely the family of XXXX XXXX XXXX and XXXX XXXX XXXX.

Conclusion

[36]     For the foregoing reasons, the panel finds that the claimants, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX are “Convention refugees” pursuant to section 96 of IRPA.

[37]     The panel accepts their refugee claim.

THE CLAIMANT: XXXX XXXX XXXX

Allegations

[38]     Ms. XXXX allegations can be found in a narrative appended to her BOC on March 1st, 2018, and an amended narrative dated March 13, 2019. The allegations can be summarized as follows.

Allegations in BOC

[39]     Ms. XXXX indicates being physically abused by her late husband. The abuse she endured caused her to be admitted to the hospital for weeks. She indicates that there was a time that her family and children urged her not to resume living with her late husband, but after some months, her late husband and her in-laws convinced her to return to the marital home.

[40]     Her husband passed away three years ago. After his passing, Ms. XXXX in-laws accused her of having killed her husband. The in-laws then stated that she needed to perform a ritual to prove that she was not responsible for her husband’s passing. The ritual involved her shaving her head and drinking the water used to bathe the body of her late husband. Lastly, Ms. XXXX was informed that she was to marry one of her brothers-in-law. Ms. XXXX objected to the ritual and the marriage. Ms. XXXX stated that she was given a deadline by which to abide by her in-laws’ request, or else she would be killed.

[41]     When the threats to her life became too much to bear, Ms. XXXX relocated to her church, where she stayed until she left Nigeria for the United States on XXXX XXXX XXXX 2017. She entered Canada on XXXX XXXX XXXX 2018.

Allegations in amended narrative

[42]     Ms. XXXX specified that her husband died on XXXX XXXX XXXX 2017. She indicated that following her husband’s passing, her sister-in-law, XXXX XXXX, accused her of having caused his death in order to inherit her late husband’s property, and because of the domestic violence she had endured during the course of their marriage.

[43]     She indicated that her in-laws explained to her the ritual she would have to follow and gave her until XXXX XXXX, 2017, to carry out their instruction, or she would be killed. She did not report her in-laws to the authorities because the head of the family, XXXX XXXX, is a high chief and is powerful.

[44]     She indicated she moved out of her marital home on XXXX XXXX, 2017, and stayed at her church in Ikorodu, until she left Nigeria.

Analysis

Identity

[45]     The claimant has established her identity and Nigerian nationality, on a balance of probabilities, by submitting a copy of her Nigeria passport.

Well-founded fear of persecution / Risk of harm

[46]     The panel finds that Ms. XXXX testified in a sincere and spontaneous manner. However, despite the principal claimant’s subjective fear, the panel finds that there is no objective basis for her fear.

[47]     At the hearing, Ms. XXXX explained that the head of the family, XXXX is a high chief. According to her testimony, the XXXX family, and in particular XXXX, is known everywhere. He is called to villages to perform rituals. For instance, Ms. XXXX testified that when a wife is thought to have killed her husband, he performs rituals to call on the spirit of the dead to go after the wife. In this context, Ms. XXXX states that she fears her in-laws, because they are idol worshippers and has been running away from them for that reason.

[48]     Noting Ms. XXXX testimony that she fears her in-laws because they are idol worshippers, the panel asked her what she believes her in-laws would do to her because of their belief. Ms. XXXX responded that her in-laws requested that she go to the shrine and kneel. She must use her mouth to pick kola nuts. Ms. XXXX further explained that as the ritual proceeds, the in-laws would perform incantations and if a person eats the fruit, their stomach would swell until it bursts.

[49]     Ms. XXXX testified that when she married her husband, they took an oath at the shrine and her face was marked. She indicated that she cannot return to Nigeria and tell her in-laws that she would not perform the rituals they requested because of the oath. She believes that they would kill her because of the oath she made. At the hearing, the panel asked Ms. XXXX why she believes that she would be killed because of the oath she took. She responded that, at the time, her late husband had informed her that once he dies, he would tell his family that she had killed him and that she would later join him. Even in Canada, Ms. XXXX believes that her in-laws are trying different rites to reach her and believes that she is sleeping like “someone who is dead”.

[50]     Further, the panel asked Ms. XXXX how she believes that she would be harmed if returned to Nigeria. She indicated that her in-laws went to the church where she resided to look for her. They had an argument with the pastor and they threatened to destroy him and to ruin his life. When questioned as to how her in-laws would be able to ruin or destroy the pastor, Ms. XXXX responded that they would use “charms” or “black magic”.

[51]     With respect to her allegations that her in-laws would force her to marry her brother-in­ law, Ms. XXXX explained that she informed them of her opposition to the marriage. She explained that her in-laws advised her that she had to perform some rituals if she refused to marry her brother­ in-law. The ritual involved making an oath that she did not kill her husband which includes drinking the bathing water of her deceased husband. As a Christian, Ms. XXXX refuses to perform this ritual. Ms. XXXX added that based on her mother’s in-laws’ culture, her mother would be killed if she persists in her decision not to perform the requested rituals. Ms. XXXX testified that Ms. XXXX was told by XXXX to follow her Christian religion to see if it would come to her rescue in this situation.

[52]     The panel considered Ms. XXXX testimony and notes that she has a genuine belief in the supernatural powers of her in-laws, and in particular, XXXX. However, the panel determines that this fear is not objectively well-founded and does not constitute a personalized risk of harm within the meaning of subsection 97(1)b)(ii) of the IRPA. Further, in the panel’s view, Ms. XXXX has a sincerely held belief that she would be killed by her in-laws due to her refusal to perform their mandated rituals by way of black magic. However, Ms. XXXX has not demonstrated that her fear is objectively well-founded or, on a balance of probabilities, constitute a risk of harm pursuant to subsection 97(1) of IRPA. Otherwise stated, Ms. XXXX has not demonstrated a serious possibility of persecution pursuant to section 96 of IRPA or that she would, on a balance of probabilities, be personally subjected to a risk of torture, to a risk to her life, or to a risk of cruel and unusual treatment or punishment pursuant to subsection 97(1) of IRPA if returned to Nigeria.

Conclusion

[53]     For the foregoing reasons, the panel determines that XXXX XXXX XXXX, is neither a “Convention refugee” under section 96 of IRPA nor a “person in need of protection” under subsection 97(1) of IRPA.

[54]     The panel rejects her refugee claim.

Luna-Martine Jean

June 19, 2019

1 Document 6 – Exhibit C-11;      Document 5 – Exhibits C-4 and C-8.

2 Document 5 – Exhibit C-6.

3 Document 3 – National Documentation Package, Nigeria, 30 April 2019, tab 5.2: Nigeria: The Law and FGM, 28 Too Many, June 2018.

4 Ibid, tab 5.28: Response to Information Request NGA105628.E., Immigration and Refugee Board of Canada, 13 September 2016.

5 Ibid, tab 5.31: Country Profile: FGM in Nigeria. 28 Too Many. October 2016.

6 Ibid, tab 5.12: Response to Information Request NGA106183.FE., Immigration and Refugee Board of Canada, 29 October 2018.

7 Ibid, tab 5.12.

8 Supra note 3.

9 Ibid.

10 Document 3 – National Documentation Package, Nigeria, 30 April 2019, tab 2.1:Nigeria. Country Reports on Human Rights Practices for 2018. United States, Department of State, 13 March 2019.

11 Supra note 6.

Categories
All Countries Nigeria

2021 RLLR 45

Citation: 2021 RLLR 45
Tribunal: Refugee Protection Division
Date of Decision: August 4, 2021
Panel: Heidi Sprung
Counsel for the Claimant(s): Anthony P Navaneelan
Country: Nigeria
RPD Number: TB9-26476
Associated RPD Number(s): N/A
ATIP Number: A-2022-00978
ATIP Pages: 000128-000130

[1]       MEMBER: I’ve considered your testimony and other evidence in the case and I am ready to render my decision. You will receive a transcript of this decision. It might be edited to correct grammar or add references to personal and country conditions documents. This is the decision in file TB9-26476. The claim of XXXX XXXX XXXX XXXX XXXX, a citizen of Nigeria who is claiming refugee protection pursuant to Section 96 of the Immigration and Refugee Protection Act.

[2]       XXXX XXXX XXXX XXXX XXXX, you’ve claimed that you fear returning to Nigeria because you are bisexual. Your allegations and the hearing was conducted in accordance with Chairpersons Guideline 9 regarding proceedings before the IRB involving sexual orientation and gender identity and expression. XXXX XXXX XXXX XXXX XXXX, I find that you are a Convention refugee and your claim is accepted.

[3]       The allegations in your Basis of Claim form are briefly summarized as follows. You are a bisexual man who has been in Canada since XXXX XXXX XXXX 2013. You began studying at the University of XXXX with a sponsorship of a Nigerian MP. When that sponsorship ended you continued to work during the summers in various places, Calgary, Edmonton and Vancouver for example, and you paid your fees and studied as much as you could. You now live in Toronto.

[4]       During the time that you’ve been in Canada and particularly during your summer jobs at XXXX and XXXX in Vancouver, these locations being away from a predominantly Nigerian community, you felt free to meet and having sexual encounters with men and a few with women. You have realised and come to accept your identity and have come out as a bisexual man. Initially you were careful not to let people in the Nigerian community know your identity, nevertheless several of your friends and other friends in Canada are now aware of your identity. There are multiple affidavits and supporting letters from friends supporting your claim. Your Basis of Claim also documents your continued attempts to renew your student visa and other options for staying in Canada.

[5]       With respect to your identity which is always the first issue, I am satisfied that your identity as a citizen of Nigeria is established through your testimony and a copy of your passport and other documentation on file.

[6]       With respect to your testimony the panel is mindful of the principal that when a claimant swears to the truth of certain allegations this creates a presumption that those allegations are true unless there is reason to doubt their truthfulness. I am aware of the many difficulties faced by refugee claimants in establishing their claim, including the stress of the hearing and all the questions that are asked, as well as other cultural factors.

[7]       I find that generally XXXX XXXX XXXX XXXX XXXX, you testified in a straightforward and compelling manner. Your testimony was clear and consistent with your allegations. It was internally consistent and consistent with the documentary evidence on file. You described coming to the realization that you were attracted to men. You described your first relationships. You readily answered questions regarding your social life and activities in the LGBTQ community including get togethers at your apartment in Toronto that were known as safe spaces for queers. Your testimony was compelling as I mentioned before.

[8]       I note that the case is well documented with corroborative evidence, relevant recent social media posts including one that predates the refugee claim are in evidence as well as several affidavits supporting your allegations of being bisexual. You reasonably described the time and explained the time it took for you to realize and be comfortable in your sexual identity as well as the time it took to realize that you could make a refugee claim. In this regard you explained that no one in the Nigerian community talks about their immigration status and you explained that you didn’t realize that the refugee process would be a private process and this also led to a delay in making a refugee claim. I find on a balance of probabilities that you are bisexual and that the objective evidence supports your allegation that you can’t return to Nigeria and live safely as an openly bisexual man.

[9]       With respect to the objective evidence, the Nigerian government outlawed same sex relationships in 2014. Same sex relations for men are criminalized throughout Nigeria and the recent report for the initiative for equal rights in the National Documentation Package as well as the UK Country Policy and Information note on sexual orientation and gender identity and expression, and the Response to Information Request on anti­LGBTQ vigilante groups clearly indicate that there is a climate of impunity for perpetrators of violence against the LGBTQ community members and that there would be no protection from the state.

[10]     To summarize I find that there is clear and convincing evidence that you would be at risk and that the state would be unwilling to protect you. For the same reasons you have no viable Internal Flight Alternative in Nigeria. You should not be expected to conceal your bisexual identity to live in Nigeria.

[11]     Just to conclude XXXX XXXX XXXX XXXX XXXX, is a person in need of protection pursuant to Section 96 of the Immigration and Refugee Protection Act and the claim is accepted.

———- REASONS CONCLUDED ———

Categories
All Countries Nigeria

2022 RLLR 1

Citation: 2022 RLLR 1
Tribunal: Refugee Protection Division
Date of Decision: April 29, 2022
Panel: M. Gayda
Counsel for the Claimant(s): Annie N O’Dell
Country: Nigeria
RPD Number: TB8-20107
Associated RPD Number(s): TB8-20130, TB8-20131, TB8-20132
TB8-20491
ATIP Number: A-2022-00210
ATIP Pages: 000001-000034

REASONS FOR DECISION

[1]       XXX XXXX XXXX (the “principal claimant”) and her four daughters, XXXX XXXX XXXX, XXXX XXXX XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX (the “minor claimants”), and XXXX XXXX XXXX (the “associated claimant”), citizens of Nigeria and Italy, claim refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (“IRPA”).1

[2]       These claims were heard jointly pursuant to Rule 55 of the Refugee Protection Division Rules.2 The principal claimant was appointed as the Designated Representative for the minor claimants. She and the associated claimant, who is her 18-year-old daughter, testified on behalf of all the claims.

ALLEGATIONS

[3]       The claimants allege a fear of gender-based persecution resulting from domestic violence at the hands of the principal claimant’s ex-common-law husband, XXXX XXXX XXXX (“KO”) the biological father of her two youngest children. The principal claimant survived domestic violence at KO’s hands in Italy, where the family resided, and the associated claimant also experienced physical violence at his hands. The claimants allege that all her children, the associated claimant and the minor claimants, witnessed her being abused at the hands of KO in Italy for several years. The claimants used to live with KO in XXXX Italy, a city in north-west Italy, west of XXXX.

[4]       In Italy, the claimants allege that state protection is not adequate for them, given their personal circumstances and given their particular past experiences in attempting to obtain adequate state protection. One of the principal claimant’s attempts to obtain protection resulted in KO being charged and eventually convicted in 2018 for physically harming her in 2015. While these charges were pending, he continued to reside, by law, with the claimants and he continued his physical abuse. The principal claimant alleges that KO was sentenced to over a year of “house arrest” and that this was to occur with him living with the claimants in their shared family home. Fearing this situation would lead to further abuse, the claimants fled to Canada.

[5]       The claimants also allege a fear of gender-based persecution in Nigeria in the form of continued violence from her ex-husband in Nigeria. The principal claimant also alleges that she believes that KO is a member of a transnational criminal gang, the Black Axe Fraternity, and that this heightens the claimants’ risk of harm and their ability to be located in both Italy and Nigeria, by KO himself, KO’s family members and his associates. The claimants also allege to fear that the three minor female claimants would also face gender-based persecution in the form of female genital mutilation (“FGM”) at the hands of members of her family in Nigeria.

DETERMINATION

[6]       I find, for the reasons that follow, that the claimants have established that they would face a serious possibility of persecution in Italy and Nigeria and hence that they are Convention refugees pursuant to section 96 of IRPA. I therefore accept their claims.

ANALYSIS

Credibility

[7]       In making this assessment, I have considered all the evidence before me, including the claimants’ oral testimony over three sittings, the evidence as set out in the Consolidated List of Documents, counsel’s submissions, as well as the Chairperson’s Guidelines, specifically Guideline 4 – Women Refugee Claimants Fearing Gender-Related Persecution3 which highlight that women refugee claimants may face special problems in demonstrating that their claims are credible and trustworthy. Factors that may affect their ability to provide evidence include difficulty in providing testimony on sensitive matters, cross-cultural misunderstandings as well as social, religious and economic differences.

[8]       I have also considered the psychological assessment before me from a registered psychologist for the principal claimant4 in assessing the principal claimant’s testimony. This psychologist provided a report from an in-person assessment in January 2019 with the principal claimant that consisted of a 4.5-hour visit, involving a semi-structured interview and three psychological screening measures. The psychologist found that the principal claimant’s description of symptoms and answers to questions indicated that she was dealing with XXXX XXXX XXXX XXXX XXXX, was consistent with her described experience of traumatic events and met the provisional criteria for XXXX XXXX XXXX XXXX

[9]       I found the claimants’ testimony to be generally credible with respect to the core allegations of their claim. The principal claimant and associated claimant testified consistently with their BOC forms and their corroborating evidence and provided elaborative details in a natural manner about their circumstances and the incidents that led them to flee Italy and why they believe they would face risks in Nigeria. They provided a good deal of corroborating documentation, and reasonable and knowledgeable responses about this documentation when asked. Their responses to my questions were reasonable and did not appear to be evasive or to embellish their fears.

[10]     I find the claimants to be credible with respect to their core allegations of fearing persecution for themselves and the minor claimants in Italy and Nigeria, and that they have credibly established, on a balance of probabilities, that violence and continued threats of violence from the principal claimant’s ex-husband, KO, have caused this fear. Moreover, they have also credibly established the core allegation of fearing gender-related persecution for the minor claimants in Nigeria, in them being subjected to FGM by the principal claimant’s family. The claimants also provided corroborating evidence with respect to core elements of their claim, and this assists in establishing their allegations, on a balance of probabilities. I will refer to some of this corroborating evidence in my analysis below.

Identity

[11]     I am satisfied that the personal and national identities of the claimants have been established on a balance of probabilities through the principal and the associated claimants’ testimony and the certified true copies of the claimants’ Italian and Nigerian passports, the originals having been seized by the Canada Border Services Agency (CBSA) upon the claimants’ arrival in Canada.5 I find on a balance of probabilities that the claimants are dual citizens of Italy and Nigeria and do not hold citizenship or permanent residence in any other country.

Nexus

[12]     The nexus to a Convention refugee ground for the claimants is that of their membership in the particular social group of women and girls fearing gender-based persecution. The claimants fear domestic violence from KO and those who may associate with him in the Black Axe criminal group, or other individuals that KO may hire to harm them in Nigeria and Italy. The principal claimant has also set out a fear of FGM, another form of gender-based persecution, for the minor claimants in Nigeria, at the hands of members of her own family who support this practice and believe that girls in the family should have it done, even though the principal claimant, their mother, does not want them subjected to this cutting.

[13]     I also note that the claimants’ experiences in Italy, and particularly the principal claimant’s experiences in attempting to obtain protection from Italian state authorities, are also impacted by their race, as Black individuals with dual Nigerian citizenship. Race is an enumerated ground in the Refugee Convention. I have considered how both the immutable characteristics of race and gender intersect and affect the risks alleged by the claimants and this includes their experiences in attempting to obtain adequate state protection, and in attempts they would make to relocate in Italy. Since l have found a nexus in these claims, I have analyzed and accepted these claims pursuant to section 96 of IRPA.

Well-Founded Fear of Persecution

Subjective Fear

[14]     I find that the claimants have established through their credible testimony and reliable corroborating evidence that they are subjectively fearful of returning to Italy and Nigeria. They fled Italy for Canada on XXXX, 2018 and initiated their claims for refugee protection at the airport in Toronto. I find that the claimants’ actions including in the principal claimant’s brief visits to Nigeria at particular points in time prior to them leaving Italy on XXXX, 2018, are consistent with a genuine subjective fear of persecution, in light of their personal circumstances.

Objective Basis for the Risks alleged

Italy

Domestic Violence

[15]     The claimants fear domestic violence in Italy from KO or violence directed at them by his associates in Italy. The country conditions evidence indicates that there are significant concerns with respect to domestic violence against women in Italy. The United State Department of State Report for Human Rights Practices for 2020 in Italy notes that 535 women were killed by domestic partners in the first six months of2020 alone.6 The New York Times in 2018 cites a Eures study that noted that 150 women were killed in Italy each year by abusive partners and that this number makes it one of the highest death tolls in Europe for domestic violence deaths.7 The Eures study also notes that in one third of the fatalities of women at the hands of their domestic partners in Italy, the victims had already complained to the police.8 A 2021 news article notes that one woman is killed every three days in Italy, and that societal attitudes in Italy, even based on a very recent survey, continue to condone and accept violence against women as a normal part of intimate relationships.9 Based on the sum of the country conditions evidence before me, I find that there is a well-founded objective basis for the risks to the claimants of domestic violence from KO in Italy.

Nigeria

Domestic Violence

[16]     Sources indicate that domestic violence remains “widespread” and “prevalent” in both urban and rural areas of Nigeria,10 and many viewed it as “socially acceptable.11” It has been attributed to the ongoing power imbalance between women and men in Nigerian society, and deeply engrained societal attitudes about women’s subordination to men, though there is some evidence that these attitudes are changing.12

[17]     I find that the principal claimant has credibly established, on a balance of probabilities, that she survived repeated instances of domestic violence from KO in Italy. I also find that her eldest daughter (the associated claimant) faced physical assaults from KO and witnessed a good deal of the domestic violence suffered by the principal claimant at KO’s hands. The minor claimants were also in the household and witnessed this domestic violence. I find that the claimants have credibly established that KO has sought the claimants out in Nigeria, and that others in his family and those he associates with, have threatened and physically harmed her mother in Benin City, Edo state. I also find that she has credibly established that KO has spoken in a hostile and threatening manner about her and her role in him having been charged and convicted in Italy, as mutual acquaintances in Nigeria, have contacted the principal claimant in Canada to warn her of KO’s statements.13

The Black Axe criminal group in Nigeria and its trans-national reach, including in Italy

[18]     I also accept that the claimants have credibly established hat KO is affiliated with a criminal group, and on a balance of probabilities, that it is the Black Axe cult or gang. The principal claimant testified about why she believes KO is involved with this gang, based on his behaviour, the type of music and videos he watched and the number of connections he had in many different places in Italy, other European countries as well as in Nigeria. She also testified about how he would boast that he was able to send his “boys” to deal with persons in Italy and also in Nigeria; in fact, he was able to command his brother as well as his “boys” to go to her mother’s home in Benin City, Nigeria where they physically assaulted her mother and threatened her with more harm if she did not contact the principal claimant. She did not appear to embellish her evidence in testimony, admitting that KO never directly acknowledged his involvement in the Black Axe to her. I find that this is consistent with what is known about the Black Axe gang, in that its origins in Nigeria close to Benin City where the principal claimant and the KO both hail from, is described as a secretive, cult-like society. I find the principal claimant’s testimony to be credible.

[19]     Documentary evidence before me indicates that the Black Axe cult tends to be secretive and began as a fraternity-type organization but has evolved into a criminal gang that has a strong presence in Benin City, which is regarded as the gang’s “headquarters.”14 The violence and crimes perpetrated by the Black Axe cult or gang in Nigeria and other countries, including the trans-national scale of this gang’s operations that include human trafficking and smuggling, prostitution and money laundering, is set out in the documentary evidence.15 The trans-national nature and the evolution of the criminal operations of this Black Axe gang is also detailed in recent sources provided by counsel.16 I find this reliable and credible evidence. This evidence indicates that there is a heightened risk posed by the principal claimant’s ex-husband to herself and the other claimants, from KO. This heightened risk comes from his affiliation with the Black Axe gang, and his ability to call on others in the gang to do his bidding. The claimant testified that she believes that he has this power and ability to call his “boys” to harm her and her daughters in Nigeria, just as he has called on them, as well as his own brothers, to harm her mother in Nigeria who was beaten by them in XXXX 2018.

[20]     Therefore, I find that the claims with respect to Nigeria, for the principal claimant and her eldest daughter, the associated claimant, are objectively well-founded. I find that they would face a serious possibility of continued violence at the hands of her former husband/ the associated claimant’s stepfather, and those who are associated with him and act on his behalf, in Nigeria.

Female Genital Mutilation (FGM)

[21]     I also find that the claims of the principal claimant’s other three daughters, the minor claimants, are objectively well-founded with respect to Nigeria. The objective country conditions evidence indicates that FGM remains prevalent in Nigerian society.17 The principal claimant is from the Edo ethnic group and from the area of Benin City in south-central Edo state; Edo state is noted to have a FGM prevalence rate of 35.5% of women ages 15-49 in Nigeria’s National Population Commission’s 2018 Demographic and Health Survey.18 The principal claimant alleges that she underwent FGM as an infant and that this is customary in her ethnic group and family.

[22]     The Edo ethnic group is reported to be one of the groups that continue to perform FGM. The European Asylum Support Office (EASO) Guidance report from 2019 found that the Edo ethnic group was one of the ethnic groups with the highest prevalence rates of FGM in Nigeria, between 69 to 77 percent of women and girls having had FGM performed.19 The documentary evidence also notes that some rituals and specific customs are family, village or community­ specific and therefore generalizations concerning the specific aspects of such customs and traditions are difficult to make.20

[23]     She also alleges that her family members had FGM performed on her eldest daughter, the associated claimant, when she was 4 years old. She and her daughter were visiting Nigeria and the principal claimant had left her alone with her family. This was done without the principal claimant’s consent, and she alleges that since that time she has been scared to leave her other daughters, the minor claimants, alone with her family in Nigeria for any reason. The principal claimant testified that she believes an elder sister, XXXX, was responsible for subjecting the associated claimant to FGM, but she is not sure to what degree her mother and other eider sisters who remain in Nigeria (the claimant has five eider sisters residing in Nigeria21) were involved in this. She testified that her mother and her sisters are supportive of FGM, it has been a tradition in her family for herself and her sisters to have it done, and that they believe that the minor claimants should be subjected to FGM.

[24]     She alleges a fear for the three minor claimants in Nigeria of being subjected to FGM against her wishes and that this is a serious infringement on their bodily security as this is not something she had wanted for her eldest daughter, given the health and other risks and implications of this mutilation. The principal claimant alleges that she is fearful that members of her family, particularly her eider sisters in Nigeria, would take her daughters and have this done to them without her consent as their parent. The claimants provided medical documentation, namely confirmation from a registered nurse at the XXXX XXXX XXXX XXXX XXXX XXXX, who examined the associated claimant and confirmed she had undergone FGM.22 Also, the associated claimant testified credibly and briefly about the fact that she had had this done to her body and had experienced health problems associated with it.

[25]     The documentary evidence about FGM in Nigeria describes that the practice remains rooted in discredited and gender discriminatory customary beliefs, for example that the cutting of the genitals of girls and women will stop them from “promiscuous” behaviour, including being unfaithful to their husbands, and that uncut girls and women are somehow “unclean”.23 In communities and families where FGM is prevalent, the practice is closely tied to concepts of family honour and girls’ marriageability. Sources note that girls “may be ostracized, shunned or assaulted by their family or community if they have not undergone FGM” and could face stigma and social exclusion if they do not undergo FGM.24

[26]     The NDP notes sources that indicate that the final decision to subject a girl to FGM is “most often” up to the parents but that there is “considerable variation both individually and among different ethnic groups.”25 Amongst family and ethnic groups that have girls and women undergo FGM, there is often societal and economic pressure put on parents and the threat of social exclusion or alienation from their families or local communities, to induce them to have FGM performed on their daughters.26 FGM is considered a “family issue” and parents who refuse to have their girls undergo FGM when other family elders expect it to be done, are those who are “well off’27 [financially] and girls who do not have it done when their family or group expect it, can be “ostracized, shunned or assaulted by their family or community” if they have not undergone FGM.28

[27]     The 2021 Response to Information Request (RIR) references the 2019 EASO report that notes a “few cases of relatives disregarding the parents’ decision and subjecting the girl to FGM/C [have been] reported, although it is considered to be very unusual.”29 Other sources in this 2021 RIR however note that is not unusual for relatives to take a girl to have her cut, amongst groups that continue to practice FGM, and it is particularly elder female members of the family who ensure that FGM is performed on a young girl, even when a parent is opposed to this practice:

…older [family members] such as grandmothers are keepers of these practice[s] and ensure that new girls in the family are cut”; even if the mother does not want her daughter to undergo FGM/C, she is “almost helpless” to refuse and FGM/C “will most likely” be performed if older family members “support the practice” (Research Analyst 9 July 2021). The Executive Director of SDI noted that the grandmother will travel to the girl’s home to ensure FGM/C is performed (SDI 18 Oct. 2021). According to the Executive Director of Value Female Network,

grandparents will do everything to make sure their granddaughter is cut. They do not want traditions to end. They will travel from a very far community, pay for accommodation, pay for everything. They will go the extra mile. They will ensure the girl is cut. They will keep it in their mind for years and wait until they can do it. (Executive Director of Value Female Network 7 Oct. 2021)

According to the Program Officer, if a mother refuses FGM/C for her daughter, the child can be taken by force by the woman’s family (Program Officer 1 July 2021).30

[28]     I therefore find that the principal claimant’s fear for the minor claimants in Nigeria is objectively well-founded. I find that the minor claimants would face a serious possibility of persecution on account of their gender, namely FGM, and being subjected to this at the hands of older relatives, namely their older aunts (the principal claimant’s older sisters), as was experienced by the associated claimant, their own sister, when she was a young girl at the hands of members of the principal claimant’s family when she and the principal claimant visited Nigeria.

State protection

Italy

[29]     For the reasons that follow, I find that the claimants have rebutted the presumption of state protection in Italy. I find that the claimants have presented clear and convincing evidence that given their particular circumstances, adequate state protection would not be available to them in Italy. This includes the principal claimant’s own previous experiences in attempting to obtain protection from the state, as well as the objective documentary evidence before me with respect to serious gaps in the implementation of Italy’s domestic violence laws, evidence of the inconsistent and arbitrary implementation of Italy’ s domestic violence laws, partially caused by continuing societal attitudes rooted in discredited myths and stereotypes about sexual assaults and violence against women, and documentary evidence about widespread anti-Black racism in the country.

The principal claimant ‘s own experiences in trying to obtain state protection

[30]     The principal claimant testified about her experiences in seeking protection from the Italian police due to KO’s domestic violence. Prior to 2015, she called the police “more than four or five times”. She testified that each time she called them, the police came but then just gave KO advice or a warning, saying things like “if you do that next time, we will have to arrest you”, “you have to stop beating her”, “take it easy, don’t beat her, she’s pregnant” and then would leave, without investigation or charging her ex-husband. She recalled the police’s visits as brief­ only a matter of minutes, and she remembered one time she called the police, and they did not come at all. She also testified that on one of these occasions she had been clearly injured with blood coming from her mouth and nose, and still the police did not intervene in a serious or effective manner. She testified that she believed that the way police treated her in this manner, in not offering her meaningful protection and viewing what she was going through as something that was “normal” amongst Nigerian men and women, was impacted by her race, as a Black woman of Nigerian descent. She described that there was a great deal of racism in Italy towards Black persons like herself, and that she had heard of such similar ineffective and racist experiences from another Black female friend in Italy who had previously contacted the police for protection from domestic violence.

[31]     The principal claimant described feeling further discouraged by the police response after the October 2015 assault against her when the police did charge KO and took him in for questioning, holding him for a few hours. She testified that she believes the police did something on this occasion because it was one of the minor claimants, XXXX who called them for help and also because a medical examination and MRI confirmed that had received a XXXX XXXX XXXX. The police released KO while this assault charge was pending, and the police knew he was returning to reside with her and the other claimants. She testified that the police told her that since he was the only financial provider for the family, he was being released. The principal claimant described in her testimony that the police did not offer her any referrals or assistance in contacting a women’s shelter or any other kind of support, despite her request about whether these options were available for her. They also did not offer that any kind of protection or barring order (from him returning to the family residence) was an option for her.

[32]     With this release arrangement, the principal claimant testified that the police called her each day for about one month to check on her to see if she was being beaten by KO. The principal claimant testified that KO noticed when the police stopped calling, and his violence against her resumed when the calls stopped. She testified that KO understood how ineffective the police were and was far from deterred and in fact felt emboldened by his ability to continue to harm her without any real repercussions. He was dismissive about the police response, saying to her: “They gave me a paper and that is it- they didn’t hold me; this is all they can do.” She testified to learning at one point about KO’s past criminal record in a different district for beating his first wife, and in 2015 when she was questioned by police, it was clear to her that the police knew about KO’s violent criminal record as well, yet this criminal history did not change the police’s response to releasing him to reside with the claimants while the 2015 charges were pending. She testified as well that KO seemed to start exhibiting a particular anger towards the minor claimant, XXXX for her role in calling the police, and the principal claimant testified that she was frightened of him harming her, as well as her other daughters, the other claimants.

[33]     The corroborating documents provided by the claimants from the Italian court and public prosecutor’s office indicate that KO weas sentenced to a XXXX XXXX XXXX            imprisonment for assaulting the principal claimant,31 and also that in consideration of a previous offence for domestic violence against his first wife, a one-year, ten-month sentence was also being considered as a sentence.32 The sentencing document from the public prosecutor’ s office from XXXX XXXX 2018 indicates that enforcement of the sentence could be stayed while the offender applied for certain “alternative measures to detention” such as “home detention”.33

[34]     The principal claimant testified that KO told her that his lawyer was working towards him getting a sentence of house arrest, so that he would not have to serve time in prison. She testified that KO’s lawyer, the police, and then a social worker asked for her consent to this house arrest, and that she was never asked this question privately on her own, when KO was not there with her. She testified to feeling terrified and helpless, as KO was threatening her that he would kill her if she did not agree to the house arrest. Within this context, the principal claimant indicated that she signed some a letter with KO’s lawyer, indicating that she had forgiven him, and that she agreed to the house arrest. The principal claimant described that the idea of KO having to be home with her and the minor claimants scared her deeply, as did the expectation that she was to inform the police if KO left the home for an unauthorized purpose. The principal claimant testified that she feared that reporting on him would have put her and the minor claimants at increased risk of harm at his hands. She believed that he would also likely take out his stress through violence on all of them while they lived together in this house arrest situation. In her BOC narrative she stated, “I was his victim and the Italian government wanted me to be his jailer.”34

[35]     The principal claimant also provided corroborating documents about KO’s sentencing hearing that took place on July 18, 2018.35 She testified that she did not have a copy of the letter that KO’s lawyer had her sign, as she was scared to ask for this and raise KO’s suspicions and possible retaliatory violence, for thinking that she was going to withdraw her consent. The principal claimant testified that she began to make her plans to flee Italy with the minor claimants when she was informed about this sentencing hearing and after KO and his lawyer had asked her to sign her consent to the house arrest proposal.

[36]     The principal claimant testified that to the best of her knowledge KO’s house arrest is now completed. She heard from mutual acquaintances in Nigeria that KO had travelled to Nigeria in around XXXX to XXXX of 2021. She testified that her sister who resides in Italy informed her that KO was previously seen in the community in XXXX, Italy at parties during the time of him sentence, not apparently following the conditions of his house arrest, but the police did not find out about this. She testified that her sister went to her home after she came to Canada to try and get some of the claimants’ belongings, and that KO did not allow her to enter the apartment, saying in an accusatory way to her sister, that the principal claimant had “caused” his house arrest.

[37]     She also testified that she believes that KO continues to live in XXXX, Italy, as her sister told her that she saw KO at a bus stop in XXXX a few months ago. The principal claimant also testified that to her knowledge, while KO’s criminal convictions may have caused him problems in obtaining Italian citizenship, he continues to have permanent residence in Italy, giving him the ability to remain living and working in that country.

Racism in society and from state authorities in Italy

[38]     I find that the principal claimant’s ability to access adequate state protection in Italy is impacted by the intersecting, immutable characteristics of her race and gender. She is an Italian citizen who is also a Black woman of Nigerian descent. The documentary evidence indicates that racism remains a serious problem in Italy, with very real consequences for visible minorities and those of African descent, specifically. In recent years, sources such as the Office of the United Nations High Commissioner for Human Rights, in its 2019 Report entitled, Mission to Italy on Racial Discrimination, notes serious concerns that Italy “is experiencing an increase of intolerance, racial and religious hatred, and xenophobia, which in some cases is allowed or even encouraged by political leaders and members of Government.”36 This report also addresses serious shortcomings in Italian police accountability and reporting of racially biased statements and actions of state law enforcement related to migrants and other persons of colour.37

[39]     Based on the evidence before me, discrimination based on race and racially-based incitements to violence are increasing and remain a widespread problem in Italy.38 Sources also report that Italian state officials, elected and those running for office, are implicated in fueling anti-migrant and racist views, and that in addition to increasing acts of racist violence, systemic racism exists in Italy towards those viewed as immigrants and/or persons of colour.39 This includes attitudes, perceptions and actions of Italians that accept and promote racist policies and outwardly racist statements and treatment of persons of colour40, with one recent study noting that more than half of Italians surveyed responded that racist acts were either always or sometimes “justifiable”.41

[40]     A 2016 report from the United Human Rights Council, Working Group of Experts on People of African Descent- Mission to Italy, found that despite some efforts of the Italian state, “racial discrimination, Afrophobia and racism persists and people of African descent continue to be the least integrated, most marginalized victims of racial profiling.”42 The authors of this report further found that written legislation and policy measures to combat racial discrimination were not being adequately implemented by the state of Italy.43 Further in this report it is noted: “Afrophobia and racial discrimination are manifest in the lack of protection afforded to people of African descent, a vulnerable group; in the difficulty that people of African descent have in gaining access to justice; and in the failure to prosecute and provide reparation and remedy.”44 This report also notes with concern the frequent racist discourse in Italy’s political system, targeting public figures and politicians of African descent, as well as the immunity that has shielded parliamentarians who make racist remarks.45 The Working Group further reported that: “[t]oo often immunity and impunity for racism creates an enabling environment for racist abuse to be perpetrated at all levels of society, even if some ad hoc punitive measures have been adopted.”46

[41]     I find therefore that the objective country conditions evidence is consistent with the principal claimant’s experiences of racism in Italy, in her encounters with police and in other aspects of her life there as well. I find that the continued systemic nature of racism in Italy impacts and intersects with the principal claimant’s lived experiences as a woman who could not attain adequate state protection in Italy from her abusive husband. I find that as an Italian citizen, she is also a Black woman of Nigerian descent, and based on her own experiences, she did not receive adequate state protection in the past. Based on her personal circumstances that include the immutable characteristics of her race and gender, as well as the country conditions evidence before me, I find that adequate state protection would also not be forthcoming to her in the future in Italy.

States Response to Domestic Violence in Italy

[42]     I note that Italy is making many efforts to address gender-based violence. Domestic violence is criminalized in Italy, and perpetrators are prosecuted. Italy is a sophisticated liberal democracy. Rebutting the presumption of state protection is a heavy burden. Italy ratified the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, (CETS No. 210), known as the “Istanbul Convention” in 2013.47 Thereafter, Italy is noted by the Council of Europe’s Group of Experts on Combatting Violence against Women and Domestic Violence (GREVIO), an independent group that is responsible for monitoring the implementation of the Istanbul Convention, to have has taken a “range of measures to implement the Istanbul Convention”, including legislative reforms and an extensive set of rules and mechanisms aimed at concrete actions to stop violence against women.48 Highlighted in the GREVIO 2020 Report is Italy’s legislation that has expanded the law on criminal stalking and increased and expanded legislative sanctions for crimes of gender-based violence, and increased national funding for specialist support and protective services to assist women and children fleeing domestic violence.49

[43]     However, despite these efforts, I find that the country conditions evidence indicates that there are some critical shortcomings and problems in the implementation of the domestic violence legislative framework in Italy, including serious gaps with respect to urgent protection order mechanisms. I find these serious deficits in the implementation of Italy’s domestic violence laws are compounded with the impact of racism for these particular claimants. Such serious shortcomings in the state response were illustrated in the claimants’ own attempts to obtain actual protection from domestic violence from the Italian state.

[44]     State protection need not be perfect, and I acknowledge that the Italian state did make an attempt to protect the claimants on one occasion through the prosecution of KO. However, based on the claimants’ particular circumstances and evidence before me, I find that attempt was far from adequate. The claimants were put at increased risk of physical harm through the manner in which the Italian state prosecuted these charges, including the lack of effective and timely protective or restraining orders in Italy for victims of domestic violence while charges are pending, such that KO returned to live with and physically abuse the claimants for over two and a half years while his charges were pending; the state also did not consult with the principal claimant privately about acquiring her consent for KO to serve his sentence under house arrest with her and the other claimants. I find that the way in which state officials acted with respect to this final issue demonstrates a clear misunderstanding or disregard for the imbalance of power in domestic violence situations and the real-world reality faced by victims: asking a woman in the presence of her abusive spouse to agree to a detention arrangement that would have the real possibility of increasing her and her children’s risk of harm is essentially asking her to make this choice under duress without a true opportunity to voice her concerns with such an arrangement: this was not a meaningful or voluntary “choice” for the principal claimant.

[45]     The evidence before me points to a serious problem of gender-based violence in the country-the United State Department of State Report for Human Rights Practices for 2020 in Italy notes that 535 women were killed by domestic partners in the first six months of 2020 alone.50 Another source from 2018 noted that approximately 150 women are killed by abusive partners each year, and that in one-third of fatal cases, the victims had already complained to the police.51 Advocates for women and critics of the Italian system have noted that tougher legislation is not necessarily the solution; existing laws are adequate, but arbitrarily applied.52 This inconsistency in the domestic violence law’s application is fueled by patriarchal socio­ cultural attitudes in Italy that justify or excuse violence against women, police officers not believing women, those in the investigatory process (police officers, social workers and judges) being unprepared, and a very long judicial process that can take several years to come to a final decision.53 I find that the objective country conditions evidence before me is consistent with the principal claimant’s described experiences of her many calls to the police over the years prior to KO being charged in 2015, in that these interactions with the police did not result in anything more than her abuser being told to treat her better.

[46]     Moreover, I find that there are critical problems with the state’s mechanisms with respect to delays and the inconsistent issuance of protection or barring orders for alleged perpetrators of domestic violence to vacate a shared residence when charges are laid. Such orders are noted to be ineffective by GREVIO in their January 2020 Report entitled, GREVIO Baseline Evaluation Report Italy (“GREVIO report”).54 Sources note that the Italian law does not automatically require that the alleged abuser leave the home when charged with abuse.55 The GREVIO report notes serious shortcomings in a domestic violence victim’s ability to obtain meaningful restraining orders, citing research that Italian authorities do not have measures in place for an immediate response if a victim calls in to report a violation of a protection order. GREVIO stresses that “an instant response to these calls is pivotal in light of the well-documented fact that a violation of a protective measure is a strong indicator of a potentially high-risk situation. [emphasis added]”56 The report notes the concern that criminal courts did not collect data on the issuance of restraining and protection orders (termed “precautionary measures”) and that this impacted the ability of GREVIO to report on the effectiveness of such measures to protect women. Women’s organizations and legal practitioners shared with GREVIO that there were problems for women in obtaining such measures in the first place, noting instances of victims’ requests for such measures remaining “unheeded and the risk they are exposed to is underestimated, leading to courts’ reluctance to issue precautionary measures (particularly where there is no physical violence), delays in their issuance, negligence in their enforcement and minimization of the risks signaled by a breach of such measures”.57

[47]     As further noted in the GREVIO report, a protection order from a criminal court in Italy must be requested by a prosecutor, and as set out above, even if one is in place, there is no process in place of immediate action in case of a reported breach by an abuser. With respect to civilly obtained protection orders, GREVIO notes that the state is also not keeping data with respect to these orders, which represents an obstacle in effectively monitoring their use. Women’s organizations, however, have indicated that these types of civil protection orders can take “several months” to be granted and that there exists “uneven and restrictive court practices in assessing the conditions under which protection orders apply and can be extended”.58 GREVIO notes with concern that this undermines women’s protection and that some civil courts take the approach of seeking to reach a compromise between the victim and the perpetrator rather than taking a position on the request for a protection order, an approach which, according to GREVIO, “would reflect a severe misunderstanding of the dynamics of violence against women.”59 The impact of these problems on the protection of women facing domestic violence in Italy is described in this report:

the lack of an automatic reaction on the part of statutory agencies to violations of protection orders sends the message that infringements are tolerated. Once the offender realises he can get away with his misbehaviour, the deterrent potential of protection orders is significantly diminished. This can not only provoke future violations, but it can also seriously discourage the victim, who should not be left alone in having to ensure that protection orders are enforced.60

[48]     The GREVIO report also refers to a 2018 Italian government report, noting the concern about a lack of consistency with the police response to domestic violence in Italy, including that the police arbitrarily conducted risk assessments in domestic violence situations, noting that in “many cases of gender-based violence, risk assessments are totally omitted, while in others, police officials assess risks based on their experience and intuitive skills instead of structured and standardized parameters.”61 The GREVIO report also reflects findings of a 2018 Italian Judiciary report that “less than 20% of prosecutorial offices and only 8% of adjudicating offices had adopted risk-assessment criteria to enable law enforcement agencies, prosecuting authorities and criminal or civil courts to prevent reoffending and the escalation of violence.”62 GREVIO notes that a “serious underestimation of the risk” in situations of domestic violence was at the heart of the European Court of Human Rights’ judgment in the Talpis v. Italy decision.63 This decision noted several serious shortcomings in the Italian state response to responding to domestic violence, including the inadequate assessment of the victim’s risk, the delayed response to the victim, and that no emergency protection order was issued.64

[49]     The police and state’s dismissive response to violence against women was also illustrated in a recent Toronto Star article from January 2022 describing a Canadian woman in Italy who was seriously beaten in public by a taxi driver. The initial response and actions of the police and hospital staff was to not take the matter seriously. She was visibly injured and there were witnesses to the attack. The police took the man’s statement, and then allowed him to drive off in his taxi. The victim describes the indifference of hospital staff towards her, telling her she was not facing an emergency because she was hit by a man, and that because they were dealing with COVID, they had “bigger issues than a girl crying over a man who hit her.” After a video of this assault was posted on Twitter, there was a large outpouring of support for the woman and state officials have publicly condemned the assault.65

[50]     Also noted in the sources before me is the continued acceptance of “hurt feelings” defenses by the courts in domestic violence cases in Italy, including in cases of serious bodily injury and femicide, resulting in reduced sentences because the crime is viewed as somewhat understandable due to emotions or passion taking over the aggressor in situations where a victim is viewed as having brought on such violence through her own behaviour.66 While it is laudable that the prime minister in 2019 publicly criticized such reasoning by the courts67, I find that the fact that this kind of reasoning continues to be used by the judiciary on some occasions in recent years, is further indication of the inconsistent and what has been described in other sources as the “arbitrary” implementation of the domestic violence laws in Italy by police officers, as well as the judiciary.

[51]     For example, another source from 2018 speaks of two foreign students who accused police officers of rape were themselves accused of being drunk and being dressed inappropriately.68 A further 2018 article describes a woman’s account of a police officer asking her whether she wasn’t “just having an argument” with her husband, when she had called the police for protection from her husband’s violence.69 An appeal court’s 2017 ruling, condemned by protesters and which was later overturned by Italy’s highest court, was that a woman’s story of being raped was not credible because she looked “too masculine” and it was improbable that the accused men would have wanted to rape her.70

[52]     I find that such discriminatory and discredited understandings about gender-based violence as displayed by the police and courts in Italy reflect the information in other sources about socio-cultural attitudes in Italy that show a level of acceptance of certain levels of violence against women in intimate partner relationships as normal and assumptions about sexual violence and intimate relationships that are rooted in gender discrimination and myths and stereotypes about gender-based violence: a 2021 Italian survey presented to the Italian senate indicated that 40 percent of men and 20 percent of women did not consider it violence to “slap a partner in the face if she has flirted with another man”, and that four out of ten men and 3 out of 10 women did not consider it violence to “force a partner to have sexual intercourse if she does not feel like it”.71

[53]     I also note that the sources indicate that there is a serious shortage of women’s shelters and that this is viewed as being a barrier to women leaving violent partners. One women’s advocate in 2018 noted that Italy’s 100 shelters was woefully inadequate to serve Italy’s population of 60 million. The advocate indicated that six times this number was needed.72 Italy is reported to have provided a good deal of funding in recent years for shelters and “anti-violence” centres for women, however, the exact number of shelters as set out in the GREVIO report is noted to be “uncertain” with the government claiming that there are 228 shelters and women’s organizations estimating a considerably lower number of 79 shelters.73 This lack of availability of women’s shelters, compounded with the principal claimant’s described first-hand experiences in her testimony of racism in the past in searching for housing on her own as a Black woman, heightens the claimants’ risk in this claim. This factor is a further way which the state’ s response to her as a Black Italian female citizen requiring protection from domestic violence is inadequate.

[54]     Counsel submitted a great deal of country conditions evidence that points to serious gaps and ineffective implementation of Italy’s laws and policies aimed at protecting women from violence. I have set out some of it in the above paragraphs. I accept that these laws may be adequate for some; and that the country conditions evidence shows that the state has made serious efforts to combat domestic violence in recent years. However, the test that I must consider is whether there is clear and convincing evidence of adequate state protection for these particular claimants. I have therefore considered whether state protection in Italy would be operationally effective for these particular claimants, taking into account their personal circumstances, and this includes the responsiveness of the state and their treatment by Italian authorities as Black women and girls. I find that for these claimants, in light of what the principal claimant experienced in her attempts to obtain state protection in Italy, and in light of the intersectional factor of race, as Black Italian citizens of Nigerian descent, that state protection would not be adequate. The claimants have therefore rebutted the presumption of state protection.

Nigeria

[55]     I also find that the claimants have rebutted the presumption of state protection in Nigeria. I find that there is clear and convincing evidence that adequate state protection would not be available to them in Nigeria. The claimants fear violence from KO himself, his family and his associates within the Black Axe gang. The principal claimant provided evidence that her mother had been physically assaulted and threatened by KO’s brother and KO’s associates in XXXX

2018 who were demanding that her mother contact the principal claimant, and that KO’s family continued to contact her family in Nigeria after this point. The principal claimant also fears that members in her family, in particular her elder sisters, will forcibly take the three minor claimants to have them undergo FGM without her consent.

[56]     Documentary evidence before me indicates that women in Nigeria rarely tum to the police for assistance in domestic violence matters, and those who do are often turned away by officers who consider it a private or family issue.74 The United States Department of State Report on Human Rights Practices in Nigeria for 2020 states that, “[p]olice often refused to intervene in domestic disputes or blamed the victim for provoking the abuse. In rural areas courts and police were reluctant to intervene to protect women who formally accused their husbands of abuse if the level of alleged abuse did not exceed local customary norms.”75 A number of sources indicate that both implementation and enforcement of laws prohibiting violence against women are lacking throughout Nigeria.76

[57]     Sources indicate that while the level of response depends on the victim’s level of education and the individual police officer taking the report, complainants are sometimes blamed for provoking the abuse, or otherwise mistreated during the intake process. According to other sources, if both parties are present, the male is believed over the female making the complaint.77

[58]     Nigeria’s legal system is a mix of common law, sharia law, and customary law. Sources indicate that there is no comprehensive national law applied throughout the country to combat domestic violence or violence against women.78 Certain sections of Nigerian law also permit men to use “corrective” force against their partners.79 The 2015 Violence Against Persons (Prohibition) Act (VAPP) was a positive development, prohibiting gender-based violence, including domestic violence and harmful traditional practices such as FGM. However, sources report that as a federal law, the VAPP is only effective in the Federal Capital Territory (FCT) of Abuja; only the high court of the FCT has jurisdiction to hear and grant applications, including restraining orders.80 While some states have their own domestic violence and/or FGM legislation, only a third of states have ratified the VAPP.81

[59]     With respect to FGM, while the VAPP prohibits FGM, the documentary evidence suggests that this prohibition is rarely, if ever, enforced in Nigeria.82 Even with the passing of these laws, FGM in Nigeria remains “widespread, with low rates of reporting and prosecution”83 Sources note that the Nigeria police are reluctant to provide protection to persons who refuse to undergo family traditional practices, including FGM. Reasons for this lack of enforcement and reluctance from the police include cultural beliefs held by police officers themselves, in that the police have difficulty recognizing the criminal nature of ritual practices, respect for these traditions and customs by the police and the discriminatory treatment and attitude towards women in Nigerian society.84

[60]     Other evidence notes that it “remains extremely difficult for women and girls to obtain protection from FGM” despite the enactment of anti-FGM laws in the FCT and anti-FGM legislation in many states, as community support for the practice of FGM and the traditional attitude of the police help to support such practices.85 The report by the British non­ governmental organization, 28 Too Many, of June 2018 confirms that “knowledge of the [FGM] law and enforcement is generally weak across Nigeria” and that there have been no reported arrests, cases, prosecutions or convictions for FGM in Nigeria.86

[61]     Corruption in the Nigerian government is also reported to be pervasive and widespread, affecting all levels of government including the security forces, with government employees frequently engaging in corrupt practices with impunity.87 Sources note that high levels of corruption, as well as a lack of sufficient funding and training and a culture of impunity and weak oversight, have seriously undermined the effectiveness of the police in responding to violent crimes, including violence against women from intimate partners or former intimate partners.88 A report from the Africa Centre for Strategic Studies describes that Nigerian police commonly demanded bribes in everyday encounters with citizens, and that norms of professionalism and ethics are further weakened in the police through politicized, non-merit based appointments.89

[62]     Therefore, based on the documentary evidence before me, I do not find that claimants would have adequate state protection in Nigeria from either further violence from KO, his family or associates, or from the principal claimant’s family abducting the minor claimants to subject them to FGM, against the principal claimant’s wishes. While the introduction of legislation such as the VAPP that addresses gender-based violence is a positive step by the Nigerian state, the existence of legislation alone is not enough to support a finding of state protection. I find that the that the implementation of the state’s laws with respect to gender-based violence in Nigeria is ineffective, and that therefore the claimants would not have adequate state protection in Nigeria.

Internal Flight Alternative

Motivation of KO ta locate the claimants in Italy and Nigeria

[63]     For the reasons that follow, I find that the claimants do not have a viable internal flight alternative (IFA) in either Italy or Nigeria. KO is a citizen of Nigeria and he has status akin to a permanent resident in Italy. I find that KO has a continuing motivation to locate the claimants if they attempt to relocate in either country, and that based on his past violence towards the claimants, I find that he poses a serious risk to their safety. He is the biological father of the two youngest minor claimants, ages 5 and 9, and the principal claimant previously resided with him as his common-law spouse for seven years. KO’s motivation is also demonstrated through his continued, attempted contacts with the principal claimant90 and with at least one minor claimant since they have been in Canada via social media, as well as the claimants’ testimony and evidence that KO has contacted mutual acquaintances in Nigeria in the recent past and that such contact indicated that KO remained angry at the principal claimant, blamed her for his conviction and arrest in Italy and wanted to find her whereabouts.91

[64]     The principal claimant also testified that KO was hostile and blamed her for his conviction and house arrest when he had an encounter with her sister in Italy. Moreover, since she left Italy, KO sent his brother and men to threaten the principal claimant’s mother in Nigeria to discover the claimants’ contact information, and her mother was physically assaulted.

Italy

Ability of KO to find the claimants in other locations in Italy

[65]     With respect to Italy, the cities of Rome and Naples were raised as possible IFA locations for these claimants; Rome is about 600 km south and Naples is about 800 km south of the city of XXXX, Italy in the northwest of the country where the claimants formerly lived, and where they believe KO to be living at this point. I find that the IFA test fails on the first prong of the test, in that the proposed IFA locations will not be safe for the claimants, and that KO would likely be able to find them should they return to Italy and attempt to relocate.

[66]     The principal claimant and the 18-year-old associated claimant testified about the social media use of the associated claimant and the eldest minor claimant who is 16 years old. The principal claimant noted that she was not well versed with technology and social media, and that she knew her daughters used social media, but she did not know a great deal about their presence online. The associated claimant testified about how she and her sister use various social media applications such as Instagram, SnapChat and TikTok to communicate with their friends and that she sometimes posts photographs of herself with friends or out doing activities. She testified that she estimated that her 16-year-old sister uses social media a fair bit, and that she and her sister do not tell their mother, the principal claimant, about their online posts and social media use. I find that the testimony of principal and associated claimant is credible about the 18- and 16-year- old’s social media use: it did not appear to exaggerate their use of social media, and details came naturally and spontaneously to the claimants.

[67]     While the social media use of teenagers communicating online for social purposes may not involve political opinion or expression which is necessarily core to one’s human rights, I note that it has become a standard and prevalent way of obtaining information, socializing and starting and maintaining friendships and community networks for young people in society today. Generally, I find that requiring adults, and even young adults, to be cautious with social media use and to do so with heightened precautions and privacy settings, so that an agent of persecution would not be able to locate their whereabouts, would be a reasonable expectation with respect to IFA. However, in the particular circumstances of this claim, I note that with two teenagers ages 16 and 18, and a third daughter about to turn 10 years of age, and with the evidence that KO has already connected with his 16-year-old daughter through social media online for a period of time without the principal claimant knowing of it, that the circumstances before me in this claim are such that the principal claimant would not be able to monitor and control all the content that her daughters (the associated claimant, the 16- year-old claimant, and in the near future one of the other minor claimants) post online or in which they are “tagged” by others online.

[68]     I find that a consideration of reasonable precautions must be assessed in light of the claimants’ ages and maturity and the particular factual circumstances in this claim which include that the agent of persecution had contact with one of the minor claimants via social media without the principal claimant’s knowledge. Upon learning of that contact, the principal claimant had the minor claimant block KO, and that KO has changed his username on at least one occasion and attempted to again contact the claimants. For these teenage claimants, and in these particular circumstances, I find that the associated claimant’s and the minor claimants’ social media use is something that the principal claimant will not be able to fully control and that such social media use is one way in which their location could become known to KO. I also find, on a balance of probabilities, that KO has shown that he has the motivation and ability to reach the claimants online via social media and that in the future, he could find the claimants’ whereabouts from online content that is from or connected to the social media profiles and accounts of the associated claimant and the minor claimants.

[69]     Next, I have accepted that the principal claimant has credibly established, on balance of probabilities, her allegation that KO is involved with the Nigerian criminal gang, the Black Axe. The principal claimant acknowledged that KO never admitted his involvement in this group to her, but that she believed him to be involved in this group for several reasons, including that he would boast that he had “boys” he could use to kill anyone in Nigeria, that on one occasion she knew of he had paid someone to bring a car into Nigeria who then demanded more money and he sent his “boys” to Nigeria to deal with the matter. She also testified that KO had told her in Italy if anyone ever offended her to let him know, as he would send his “boys” to their house. The principal claimant testified that KO seemed to have many Nigerian friends and contacts in many different places in Italy and that he travelled frequently to see them.

[70]     I find that the claimants have also submitted reliable country conditions evidence as to the Black Axe criminal group’s presence and reach in Italy. Documentary sources describe that the Black Axe criminal group as one that employs brutal violence and has become trans-national, involved in crimes such as prostitution, international human trafficking and money laundering.92 Sources note that the Black Axe criminal group has a strong presence in Italy93 and is regarded as “quite powerful”94, with “cells throughout Italy”95 and to be operating in “many regions of the country”.96 Nigerian criminal networks in Italy are reported to have as many as 1,500 members across the country, and in some locations, they pay a cut to the Italian mafia to allow them to do business, and in other locations they encroach on Italian mafia territory and business.97 Italian police have attempted to curb the criminal activities of the Black Axe organization with arrests in 2016 of between 15-18 Black Axe leaders, and again in 2021, arresting 30 members.98

[71]     I have found the principal claimant credible in her testimony about why she believes KO is a part of, or affiliated with, this group. She testified that KO appeared to have many friends and connections throughout Italy and his friends were mainly Nigerian. She testified about how he would boast that he had “boys” who could take care of anyone who had offended her and that she saw that he would regularly speak with people she did not herself know from Rome, Turin, and Milan. She testified he used to visit Rome about twice a year and for Naples, he travelled there about once a year, but not always every year.

[72]     I find that KO’s affiliation with the Black Axe group means that he poses a heightened risk to the claimants. This heightened risk comes from his ability to call on others in the gang to do his bidding, including in searching for the claimants and reporting back if they are located in another place in Italy. The claimant testified that she believes that he has this power and ability to call his “boys” to locate her, and cause her and her daughters harm, just as he has called on such thugs to harm her mother in Nigeria in XXXX 2018. I also note the principal claimant’s testimony that her sister in XXXX, Italy saw KO at a bus stop there a few months ago, and he attempted to speak with her sister, but she was able to avoid him. I find on a balance of probabilities that KO continues to reside in XXXX Italy, and that his house arrest sentence is now completed.

[73]     Therefore, based on their particular circumstances, I find that the claimants would not be able to safely relocate within Italy and the IFA test fails on the first prong. I find that it is more likely than not that if the claimants were to move at a new location in Rome or Naples, it would become known to KO, through a combination of factors such as the associated claimant and minor claimants’ social media use, and/or through his connections and ability to use other associates of the Black Axe criminal group to locate the claimants. I find that the serious shortcomings with respect to the Italian state’s response to violence against women and domestic violence specifically, compounded by systemic issues of racism, as set out above, mean that the claimants would not have adequate state protection in the IFA locations if they were located by KO in these locations, or anywhere else in Italy.

Nigeria

[74]     I also find that the claimants do not have a viable IFA in Nigeria. I proposed the large urban centre of Lagos, as a possible IFA location for the claimants. I have set out above my reasons for finding that KO continues to have a strong motivation to locate the claimants, including in Nigeria. The principal claimant testified about KO’s ability to locate her in Lagos, stating that his brother who works as a driver for a rich and well-known traditional chief of Edo state, travels throughout Nigeria with this man and could use such connections to find her. She testified that through either his brother or through his connections with the Black Axe gang, he would be able to learn of their whereabouts in Lagos. She also testified that she and KO had many mutual friends and friends of each of their families who are in Lagos, and that KO knows her eider sister’s address in Lagos having been there many times before. She believes that her sister would resist in telling KO her whereabouts, but that their network of mutual acquaintances would be susceptible to providing information about her whereabouts for payment by KO, who she testified would return to Nigeria and flaunt and spend his Euros.

[75]     The principal claimant acknowledged in testimony that this eider sister in Lagos supports FGM, and that she believes that this sister at least condoned another eider sister who was behind having FGM performed on her eldest daughter, the associated claimant, when they visited Nigeria when the associated claimant was about four years old. Residing with this sister in Lagos would therefore not be something that the principal claimant could do without risking the safety of the minor claimants.

[76]     I have set out, above, my reasons for finding that KO has the continuing motivation to locate and harm the claimants. I have found the principal claimant credible in her testimony about how acquaintances in Nigeria have told her that KO has recently been there, angrily asking about her. I find on a balance of probabilities that he has completed his sentence from 2018 for assaulting the principal claimant and that he is someone with the ability and desire to return to Nigeria, including that he has the financial resources to do so.

[77]     I find that the claimants’ personal circumstances and the particular background of KO also contribute to his ability to locate the claimants in Lagos, and that the claimants would face a serious possibility of persecution in Lagos, as well as throughout Nigeria. These personal circumstances are relevant to both prongs of the IFA test, and I find that in considering them, the first prong of the test fails. First, I note the possibility about KO being able to determine their location via the associated claimant’s and the minor claimants’ social media use, for the reasons I have already set out above.

[78]     Secondly, the principal claimant is a single mother to four female children ranging in age from 5 years old to 18 years old and she would be returning to a new city where she does not have the amount of familiarity and support network as she did in the area where she grew up and where her mother and other siblings (but for the one eider sister in Lagos and another sister in Italy) live, Benin City in Edo state. She testified that the associated claimant and the minor claimants do not speak any local languages, and that the associated claimant and the next eldest, 16-year-old XXXX, speak English and Italian, whereas the younger two minor claimants now only speak English. The principal claimant testified that the associated claimant and minor claimants will be easily identifiable as people of Nigerian descent who have lived abroad for quite some time, as the girls speak English in a particular way and have a European mentality with respect to things such as a personal safety and everyday understandings of customs. The principal claimant noted that her four daughters have only ever visited Nigeria a handful of times (fewer occasions for the younger minor claimants), and that they grew up as Italian Europeans, and now as Canadians since mid-2018. This makes them very unfamiliar with Nigerian ways of life, and this would make them stand out as foreigners and increase their vulnerability. She also testified that she also is less familiar with the Nigeria of today, having moved to Italy in 1997 to work at the age of 21 and resided there since that time, only returning to Nigeria herself for a few visits over the years, although she is more familiar than her daughters are with the country.

[79]     I find that given these personal characteristics and circumstances, that these particular claimants will likely be more visible amongst neighbours and the community in a new location such as Lagos, and that the principal claimant would likely need to call upon one of their mutual friends for help and support in Lagos if they were to attempt to relocate there. In this situation, I find that KO would likely be able to locate them through his family and network of acquaintances in Nigeria or through his associates with the Black Axe criminal group. Sources describe that the Black Axe criminal group has a presence in Lagos99, with one source noting it has a national reach and that “[i]n each community, these groups have leaders that [are] as ruthless as their coordinators at the state and national levels.”100

[80]     I find that while the situation with respect to state protection for women and girls facing violence from a former intimate partner may be better in Lagos than the rest of the country, since in Lagos some sources note that there are improving attitudes amongst the community in not condoning or accepting domestic violence, and that the police in Lagos were better trained to deal with domestic violence and had a more responsive attitude with a dedicated gender desk to receive domestic violence complaints,101 I find that the bulk of the country conditions evidence for Nigeria indicates that adequate state protection would not be available for the claimants in Lagos. The serious problems with police corruption and ineffectiveness in Nigeria mean that KO could use his financial resources and connections in Nigeria to bribe the police anywhere, including Lagos. I find that the weight of the documentary evidence before me does not support a finding that conditions in Lagos with respect to the treatment of women, and with respect to police effectiveness, are different to the extent that it would render state protection adequate in Lagos, given their personal circumstances, and the particular factors involved in their claim. For these reasons, I find that the claimants do not have a viable IFA in Lagos, or anywhere else in Nigeria.

CONCLUSION

[81]     Based on the above analysis, I determine that the claimants are Convention refugees pursuant to section 96 of IRPA. I therefore accept their claims.

(signed)                  Melinda Gayda                 

                                                                                             April 29, 2022                  

Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1)

Refugee Protection Division Rules, (“RPD Rules”), SOR/2012-256, Rule 55

3 Guideline on Women Refugee Claimants Fearing Gender-Related Persecution: Guidelines Issued by the Chairperson pursuant to section 65(3) of the Immigration Act, IRB, Ottawa, March 9, 1993, Update: November 1996, as continued in effect by the Chairperson on June 28, 2002 pursuant to section 159(l)(h) of the Immigration and Refugee Protection Act.

4 Exhibit 6, pages 46-52

5 Exhibit 1, Package of information from the CBSA on referral of refugee claim.

6 Exhibit 3, National Documentation Package for Italy (September 29, 2021), Item 2.1, Italy- Country Reports on Human Rights Practices for 2020, United States, Department of State, 30 March 2021, page 14.

7 Exhibit 7, For Italy’s Abused Women, a Legal Labyrinth Compounds the Wounds, New York Times, Gala Pianigiani, 11 August 2018, page 11.

8 Exhibit 7, Ibid, page 11.

9 Exhibit 14, Italy draws up plan to fight violence against women, Wanted in Rome, November 24, 2021, pages 323- 324;- Exhibit 12, Italy Survey reveals shocking attitudes towards violence against women, Wanted in Rome, November 25, 2021, page 303; Domestic violence against women escalating in Italy, independent Australia, June 3, 2021, Francesco Bertolucci, page 308.

10 Exhibit 4, National Documentation Package for Nigeria (November 30, 2021 version) Item 5.3: Domestic violence, including legislation; protection and support services offered to victims (2016-November 2019). Immigration and Refugee Board of Canada. 14 November 2019. NGA106360.E.

11 Exhibit 4, Item 2.1, Nigeria: Country Reports on Human Rights Practices for 2020, United States Department of State, 30 March 2021, page 34.

12 Exhibit 4, Item 5.3, pages 5-7.

13 Exhibits 8 and 9, What’s App screenshot of messages and transcribed voicemail from friend in Nigeria; Exhibit 15, transcribed voicemail from other mutual acquaintance in Nigeria.

14 Exhibit 4, Item 7.24: The Black Axe confraternity, also known as the Neo-Black Movement of Africa, including their rituals, oaths of secrecy, and use of symbols or particular signs; whether they use force to recruit individuals (2009-November 2012), Immigration and Refugee Board of Canada, 3 December 2012, NGA104208.E, page 2.

15 Exhibit 7, The Black Axe, Harper’s Magazine, September 1, 2019, pages 59-65; Mississauga man gets 15-year sentence for fraud scheme involving Black Axe organization, The Globe and Mail, October 31, 2019, page 68; Shadowy Black Axe group leaves trail of tattered lives, The Globe and Mail, November 12, 2015, page 69-74; Italian cops try to stop a sex trafficking gang called Black Axe, NPR, May 16, 2018; pages 77-79.

16 Exhibit 12, The ultra-violent cut that became a global mafia, The BBC World Service, December 13, 2021, pages 264-269; Black-Axe: Leaked documents shine spotlight on secretive Nigerian gang, The BBC World Service, December 13, 2021, pages 270-271

17 Exhibit 4, Item 5.39, Update to NGA200625 on prevalence of female genital mutilation/cutting (FGM/C), including ethnic groups in which FGM/C is prevalent; ability of parents to refuse FGM/C for their daughter; consequences for refusal; state protection and support …, Immigration and Refugee Board of Canada, 26 October 2021, NGA200790.E;, Item 5.16, Country Policy and Information Note. Nigeria: Female Genital Mutilation (FGM), Version 2.0. United Kingdom Home Office, August 2019, sections 4.8.4.

18 Exhibit 3, Item 5.39, pages 4-5.

19 Exhibit 4, Item 5.16, Country Policy and Information Note. Nigeria: Female Genital Mutilation (FGM), Version

2.0. United Kingdom Home Office, August 2019, sections 4.8.4.

20 Exhibit 4, Item 5.13, RIRNGAJ04392.E, 29 April 2013 and Item 10.8, RIR NGA105659.E, 14 November 2016,

page 2

21 Exhibit 2, BOC Form, Question 5 Family Members.

22 Exhibit 6, page 53.

23 Exhibit 4, Item 5.39, RIR NGA200790.E, October 26, 2021 and Item 5.22, Country Profile: FGM in Nigeria, 28 Too Many, October 2016 [listed as November 2017 in the NDP Index]

24 Exhibit 4, Item 5.39, pages 13-14.

25 Exhibit 4, Item 5.39, RI R NGA200790. E, October 26, 2021, page 8.

26 Exhibit 4, Item 5.39, page 12

27 Exhibit 4, Item 5.39, page 12

28 Exhibit 4, Item 5.39, page 13

29 Exhibit 4, Item 5.39, page 11

30 Exhibit 4, Item 5.39, page 11

31 Exhibit 6, pages 12-17, Judgement of the Italian Court, XXXX 2018; and page 9, Public prosecutor’s documents note the sentence as “XXXX XXXX XXXX” and that the final sentence of judgment was passed on XXXX, 2017. The Judgement in the original Italian notes at page 14 the date of “XXXX 2017”, and “XXXX XXXX XXXX XXXX XXXX XXXX”, the “XXXX XXXX XXXX XXXX XXXX”.

32 Exhibit 6, page 5-11- Italian Public Prosecution documents, Measures for Enforcement of Concurrent Penalties, January 26, 2018

33 Exhibit 6, page 10.

34 Exhibit 2, para. 27.

35 Exhibit 1, Documents provided by principal claimant at the airport to the CBSA.

36 Exhibit 3, NDP for Italy, Item 13.3, Report of mission to Italy on racial discrimination, with a focus on incitement to racial hatred and discrimination, Office of the United Nations High Commissioner for Human Rights, 1 February 2019, page 9 (para 34)

37 Exhibit 3, Ibid, pages 12-14

38 Exhibit 12, Italy: Racist and xenophobic crimes by type 2020, Statista, November 16, 2021, page 307

39 Exhibit 12, Black Italian actress describes racist messages on live TV, ABC News, February 3, 2022, page 299, How Populist Scaremongering Unleashed a Wave of Anti-Black Racism in Italy, Vice, May 29, 2021, pages 311- 312; Exhibit 14, Italy on edge as neo-fascists stir violence, EU Observer, October 15, 2021, pages 392-393; Italian police accused of racism over viral video of arrests in Milan, Euro News, June 30, 2021, pages 396-397, Racial profiling in Italy: A debate not yet begun, Institute of Race Relations, May 19, 2021, pages 398-399; Exhibit 3, Item 2.4, Italy. World Report 2021: Events of 2020, Human Rights Watch, January 2021.

40 Exhibit 14, Verona fans banned for racist chants after appalling banner, Toronto Star, March 15, 2022, page 391,

41 Exhibit 12, More than half of Italians in poll say racist acts are justifiable, The Guardian, November 12, 2019, page 319.

42 Exhibit 3, Item 13.2, Report of the Working Group of Experts on People of African Descent on its mission to Italy, United Nations Human Right Council, 12 August 2016, A/HRC/33/61/Add. l, page 8 (para. 36)

43 Ibid.

44 Ibid., page 10 (para. 50).

45 Ibid., page 8 (para. 39).

46 Ibid.

47 Exhibit 3, Item 5.3: GREV/O Baseline Evaluation Report Italy, Council of Europe, Group of Experts on Action against Violence against Women and Domestic Violence, 13 January 2020, GREVIO/lnf (2019)18, page 9.

48 Exhibit 3, Item 5.3, Ibid., page 6; also Exhibit 14, excerpts of same report, pages 332-349; Item 2.1, Italy­ Country Reports on Human Rights Practices for 2020, United States, Department of State, 30 March 2021, pages 13- 14; Item 5.1, Italy. Social Institutions and Gender Index 2019, Organisation for Economic Co-operation and Development, 7 December 2018, pages 4-5

49 Exhibit 3, Item 5.3, GREVIO Baseline Evaluation Report Italy, pages 6, 11-15, 22-25.

50 Exhibit 3, Item 2.1, Italy- Country Reports on Human Rights Practices for 2020, United States, Department of State, 30 March 2021, page 14.

51 Exhibit 7, For Italys Abused Women, a Legal Labyrinth Compounds the Wounds, New York Times, Gala Pianigiani, 11 August 2018, pages 11-12.

52 Exhibit 3, Item 5.1, Italy. Social Institutions and Gender Index 2019, Organisation for Economic Co-operation and Development, 7 December 2018, page 5.

53 Exhibit 7, For Italys Abused Women, a Legal Labyrinth Compounds the Wounds, New York Times, Gala Pianigiani, 11 August 2018, pages 11-12.

54 Exhibit 3, Item 5.3: GREVIO Baseline Evaluation Report Italy, Council of Europe, Group of Experts on Action against Violence against Women and Domestic Violence, 13 January 2020, GREVIO/Inf(2019)18; also Exhibit 14, excerpts of same report, pages 332-349.

55 Exhibit 7, News Analysis: Italy’s new domestic violence law fills legislative gaps, without cutting problem at its roots, Xinhuanet, July 20, 2019, Alessandra Cardone, page 2; Exhibit 3, Item 5.3, pages 73-75.

56 Exhibit 3, Item 5.3, page 73, para. 235.

57 Exhibit 3, Item 5.3, page 73, para. 235.

58 Exhibit 3, Item 5.3, page 73 para. 237

59 Exhibit 3, Item 5.3, page 73, para. 237.

60 Exhibit 3, Item 5.3, page 73, para. 237.

61 Exhibit 3, Item 5.3, page 71, para. 228.

62 Exhibit 3, Item 5.3, page 71, para. 228.

63 Exhibit 3, Item 5.3, page 71, para. 228.

64 Exhibit 7, Talpis v. Italy 41237114, European Court of Human Rights, Judgment: March 2, 2017, page 16.

65 Exhibit 12, Enduring a brutal assault by a taxi driver, Canadian woman becomes the face of violence against women in Italy, The Toronto Star, January 18, 2022, Rosie DiManno, pages 301-302.

66 Exhibit 7, Stop using “hurt feelings” to justify men who murder women, Italy’s Prime Minister tells judges,

Independent, March 15, 2019, page 3;

67 Exhibit 7, Ibid., page 3.

68 Exhibit 7, Italian women ‘s groups fear law change will hurt domestic violence victims, The Guardian, September 19, 2018, Angela Guiffride, page 10

69 Exhibit 7, For Italys Abused Women, a Legal Labyrinth Compounds the Wounds, New York Times, Gala Pianigiani, 11 August 2018, page 12.

70 Exhibit 14, Italian protests over men cleared of rape because woman ‘too masculine’, The Guardian, March 11, 2019, Anglea Guiffride, page 352.

71 Exhibit 12, Italy Survey reveals shocking attitudes towards violence against women, Wanted in Rome, November 25, 2021, page 303; Domestic violence against women escalating in Italy, Independent Australia, June 3, 2021, Francesco Bertolucci, page 308.

72 Ibid., page 12

73 Exhibit 3, Item 5.3: GREV/O Baseline Evaluation Report Italy, Council of Europe, Group of Experts on Action against Violence against Women and Domestic Violence, 13 January 2020, GREVIO/lnf (2019)18, paras. 145-148.

74 Exhibit 4, Item 5.3, Domestic violence, including legislation; protection and support services offered to victims (2016-November 2019), Immigration and Refugee Board of Canada., 14 November 2019, NGA 106360.E, p. 13.

75 Exhibit 4, Item 2.1 page 34.

76 Exhibit 4, Item 5.3, pages 12-13.

77 Ibid., pages 14-15.

78 Ibid., p. 8.

79 Ibid., pages 7-8.

80 Ibid., p. 9.

81 Exhibit 4, Item 5.22, Country Profile: FGM in Nigeria, 28 Too Many, October 2016 [listed as November 2017 in the NDP Index], pages 4, 8 and Appendix II; Item 5.3, pp. 11-12.

82 Exhibit 4, Item 5.2: Nigeria: The Law and FGM, 28 Too Many, June 2018; Item 5.16, Country Policy and Information Note. Nigeria: Female Genital Mutilation (FGM)- Version 2.0, United Kingdom Home Office, August 2019.

83 Exhibit 4, Item 5.16, page 37.

84 Exhibit 4, Item 10.8, Availability and effectiveness of state and police response in bath urban and rural areas of southern Nigeria, for people who refuse to participate in ritual practices (2014-October 2016), Immigration and Refugee Board of Canada, 14 November 2016, NGA105659.E, pages 3-4.

85 Exhibit 4, Item 5.16, page 35.

86 Exhibit 4, Item 5.2: Nigeria: The Law and FGM, 28 Too Many, June 2018, pages 6 and 8.

87 Exhibit 4, Item 2.1, pages 30-31.

88 Exhibit 4, Item 5.3., pp. 15-16; Item 10.2, Governance, Accountability, and Security in Nigeria, Africa Center for Strategic Studies, Oluwakemi Okenyodo, 21 June 2016.

89 Exhibit 4, Item 10.2

90 Exhibit 6, Screenshots of KO’s messages and attempts to call the principal claimant, under different names and the principal claimant’s blocking of KO on social media and What’s App, pages 86-94.

91 Exhibit 8, Screenshot of friend’s messages about KO’s contact with him; Exhibit 9, Transcribed Voicemail from mutual acquaintance in Nigeria, page 147 [Audio of this voicemail played at the first sitting of this claim]; Exhibit 18, Transcribed Voicemail from other acquaintance in Nigeria, page 108.

92 Exhibit 4, Item 7.2, Nigeria: COI Compilation on Human Trafficking, Austrian Red Cross, Austrian Centre for

Country of Origin and Asylum Research and Documentation, December 20 I 7; Exhibit 7, The Black Axe, Harper’s Magazine, September 1, 2019, pages 59-65; Mississauga man gets 15-year sentence for fraud scheme involving Black Axe organization, The Globe and Mail, October 31, 20 I 9, page 68; Shadowy Black Axe group leaves trail of tattered lives, The Globe and Mail, November 12, 2015, page 69-74; Italian cops try to stop a sex trafficking gang called Black Axe, NPR, May 16, 2018; pages 77-79; Exhibit I 2, The ultra-violent cut that became a global mafia, The BBC World Service, December 13, 2021, pages 264-269; Black-Axe: Leaked documents shine spotlight on secretive Nigerian gang, The BBC World Service, December 13, 2021, pages 270-271.

93 Exhibit 7, Nigerian cults protected by government high level members: Gangsters recruited by candidates to manipulate voting, il Gatto Quotidiano, Mario Portanova, November 17, 2018, page 67.

94 Exhibit 7, Italian cops try to stop a sex trafficking gang called Black Axe, NPR, May 16, 2018, page 78.

95 Exhibit 4, Item 7.2, Nigeria: COI Compilation on Human Trafficking, Austrian Red Cross, Austrian Centre for Country of Origin and Asylum Research and Documentation, December 2017, page 5.

96 Exhibit 12, Italian police arrest alleged Nigerian Black Axe mafia members over trafficking, The Guardian, January 19, 2022, Lorenzo Tondo, page 300.

97 Exhibit 7, Ibid., page 78.

98 Exhibit 7, Italian caps try to stop a sex trafficking gang called Black Axe, NPR, May 16, 2018, page 78; Exhibit I 2, Italian police arrest alleged Nigerian Black Axe mafia members over trafficking, The Guardian, January I 9, 2022, Lorenzo Tondo, page 300.

99 Exhibit 4, Item 7.24, pages 6-7.

100 Exhibit 7, Nigerian cults protected by government high level members: Gangsters recruited by candidates to manipulate voting, il Gatto Quotidiano, Mario Portanova, November 17, 2018, page 66.

101 Exhibit 4, Item 5.3, pages 5-6, 15.

Categories
All Countries Nigeria

2021 RLLR 6

Citation: 2021 RLLR 6
Tribunal: Refugee Protection Division
Date of Decision: June 28, 2021
Panel: Sandeep Chauhan
Counsel for the Claimant(s): Johnson Babalola
Country: Nigeria
RPD Number: VC1-01443
Associated RPD Number(s): VC1-01444, VC1-01445, VC1-01446, VC1-01447
ATIP Number: A-2022-00210
ATIP Pages: 000202-000213

REASONS FOR DECISION

INTRODUCTION

[1]       This These are the reasons for the decision in the claims of XXXX XXXX XXXX (the “principal claimant”), her spouse XXXX XXXX XXXX (the “associate claimant”), their daughters XXXX XXXX XXXXand XXXX XXXX XXXX (the “minor female claimants”), and their son XXXX XXXX XXXX (the “minor male claimant”), as citizens of Nigeria, who are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).i

[2]       XXXX XXXX XXXX was appointed as designated representative for her minor children XXXX XXXX XXXX XXXX XXXX XXXX XXXXand XXXX XXXX XXXX.

[3]       In rendering my reasons, I have considered and applied the Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution and the Guidelines on Child Refugee Claimants: Procedural and Evidentiary Issues.

ALLEGATIONS

[4]       The following is a brief synopsis of the allegations out forth by the principal claimant in her Basis of Claim (BOC) form.ii

[5]       The principal claimant fears persecution at the hands of her in-laws in Nigeria for her refusal to have the minor claimants undergo Female Genital Mutilation (FGM).

[6]       The principal claimant is a XXXX XXXXyear-old Yoruba female who was a victim of FGM when she was young. She now fears that her daughters will undergo the same trauma as her father-in-law is adamant on carrying out the procedure on the female minor claimants.

[7]       The principal claimant also fears for her life at the hands of persons convicted of crimes by the courts in Nigeria as she is a bailiff and executes the court verdicts.

[8]       The principal claimant and the minor claimants travelled to Canada on XXXX XXXX XXXX 2018. The associate claimant stayed behind in Nigeria. His father attempted to have him kidnapped, following which he quit his job and escaped to Canada on XXXX XXXX XXXX 2018.

[9]       The claimants filed for refugee protection, fearing for their lives in Nigeria.

DETERMINATIONS

[10]     I find that the principal and the minor female claimants are Convention refugees as they have established a serious possibility of persecution based on their membership in a particular social group upon return to their country. My reasons are as follows.

[11]     I also find that the associate claimant and the minor male claimant have satisfied the burden of establishing, on a balance of probabilities, that they would personally be subjected to a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture upon return to their country. My reasons are as follows.

ANALYSIS

Identity

[12]     I find that the claimants’ identities as nationals of Nigeria are established, on a balance of probabilities, based on certified copies of their Nigerian passports on file.iii

Nexus

[13]     For a claimant to be considered a Convention refugee, the well-founded fear of persecution must be by reason of one or more of the five grounds: race, religion, nationality, membership in a particular social group or political opinion.

[14]     In this case, the evidence before me is that the principal claimant fears persecution in Nigeria due to her refusal to subject the minor claimants to FGM. I find that she has established a nexus to a Convention ground – membership in a particular social group: namely a woman fearing gender-based persecution. I also find that the minor female claimants have established a nexus to a Convention ground – membership in a particular social group: namely children fearing gender­ based persecution. Accordingly, I have assessed their claims under section 96 of IRPA and not under section 97.

[15]     Victims or potential victims of crime, corruption or personal vendettas generally cannot establish a link between fear of persecution and Convention reasons (Kang, 2005 FC 1128 at para. 10). The associate claimant and the minor male claimant fear persecution in Nigeria due to the threat of kidnapping by the associate claimant’s father and his extended family due to the associate claimant’s refusal to subject the minor female claimants to FGM.

[16]     As victims of crime who fear future criminality which is not connected to one of the five Convention grounds, I find that the associate claimant and the minor male claimant have not established a nexus to one of the Convention grounds. Their claims will therefore be assessed under section 97(1) of the Act, and not section 96.

Credibility

[17]     When a claimant swears to the truthfulness of certain facts there is a presumption that what he or she is saying is true unless there are reasons to doubt it. The determination as to whether a claimant’s evidence is credible is to be made on a balance of probabilities.

[18]     In this case the principal claimant and the associate claimant testified in a straightforward manner and, there were no relevant inconsistencies in their testimonies or contradictions between their testimonies and the other evidence before me which have not been satisfactorily explained.

[19]     I canvassed the principal claimant why she did not seek protection earlier, since the threats of FGM by her father-in-law had commenced at the time her eldest daughter was born in XXXX. She explained that at that time they did not take the threats seriously and were able to talk the in­ laws into postponing the consideration of subjecting their eldest daughter to female circumcision. There were discussions on this issue, but the threats never escalated. Following the birth of their second daughter in XXXX, there was more serious talk of revisiting this issue of female circumcision. It is only when the father-in-law and his relatives began demanding that the female minor claimants will have to undergo FGM, did they start to realize the gravity of the matter. Then, when her father-in-law tried to get the associate claimant kidnapped for his refusal to agree with him on the issue of FGM, did they realize that their lives were in danger. I accept the principal claimant’ s explanation for the delay in seeking protection reasonable, as initially, it was just simple talk on the issue of FGM for the eldest minor female claimant. However, with the birth of their younger daughter in XXXX, the situation deteriorated, and the threats worsened with the escalation of those threats to physical harm for the principal claimant, the associate claimant, and the minor male claimant for refusing to honour the family tradition of subjecting the minor female claimants to FGM. I do not draw any negative inference on the issue of delay in seeking refugee protection.

[20]     Apart from their oral testimonies, the principal claimant and the associate claimant have provided corroborating documentary evidence to support their and the minor claimants’ claims. These documents form part of Exhibits 5, 6, 8 and 9. I have no reason to doubt the genuineness of these documents and accept them as genuine. The evidence contains the following:

  • Marriage certificate confirming the principal claimant and the associate claimant are married to each other, along with birth certificates of minor claimants confirming they are their children.
  • Supporting letter from pastor of a church in Nigeria confirming the claimants were facing threats of persecution at the hands of the associate claimant’s father and his extended family on the issue of FGM for the minor female claimants.
  • Medical note from Nigeria showing that the principal claimant was treated for XXXX XXXX XXXX XXXXand XXXX.
  • XXXX assessment report from Canada confirming that the principal claimant suffers from XXXX XXXX XXXX XXXX XXXX XXXX XXXX due to the events she faced in Nigeria.

[21]     Based on the principal claimant’s and the associate claimant’s straightforward testimony and the corroborating documentary evidence discussed above, I find them to be credible witnesses and accept their allegations to be true on a balance of probabilities. In particular, on a balance of probabilities, I accept that:

  • The associate claimant’s father and his extended family want the minor female claimants to be subjected to FGM.
  • The principal claimant and the associate claimant were issued threats of harm by the associate claimant’s father.
  • There was an attempt to kidnap the associate claimant at the behest of his father for refusal to have the minor female claimants undergo FGM.
  • The associate claimant’s father has threatened to harm all the claimants for refusing to honour the family practice and tradition of FGM.
  • The principal claimant and the minor female claimants have a subjective fear of returning to Nigeria.

Well-Founded Fear of Persecution and Risk of Harm

[22]     To establish their status as Convention refugees, the principal and the minor female claimants had to show that there was a serious possibility that they would be persecuted if removed to Nigeria.

[23]     I find that the evidence presented in support of their allegations does establish a serious possibility of persecution for the claimants. My reasons are as follows.

[24]     The principal claimant has been threatened with dire consequences by her father-in-law for refusing to subject the minor female claimants to undergo FGM as per the family’s traditions and the Yoruba culture.

[25]     The claimants’ subjective fear is supported by objective evidence.

[26]     The country condition documents for Nigeria corroborate the facts alleged by the principal claimant and the objective basis for her and the minor claimants’ claims. FGM is widespread in Nigeria and the procedure has been performed on 20 million women and girls in the country, with some estimates indicating that 24.8% of all women between 15 and 49 have undergone FGM.iv

[27]     The claimants belong to the Yoruba culture and ethnicity. The objective evidence states that FGM is much more common amongst southern ethnic groups, and studies indicate that between 52-90% of Yoruba women and girls have been subjected to FGM.v

[28]     Although Nigeria has passed legislation to criminalize the FGM as well as the procurement, arrangement, and/or assistance of acts of FGM, the prevalence of this social evil remains concerning and there are no reported instances of any prosecutions brought under federal legislation since its introduction in 2015 in Nigeria.vi

[29]     I also reference the Response to Information Request (RIR) on whether parents can refuse subjecting their children to FGM and the repercussions for doing so.vii The RIR states that the decision to subject a girl to FGM is generally up to her parents and that parents who refuse to let their daughters be mutilated do not face any significant consequences. The principal claimant testified that her in-laws are rooted in rural Yoruba culture and traditions and have subject all their females to FGM. She stated that her father-in-law is adamant that until the minor female claimants are subject to FGM, calamities will befall on the family. She testified that the father-in-law has threatened that he will forcibly take away the minor claimants and do what needs to be done. I agree with the principal claimant’s argument that she and the minor claimants face a serious possibility of persecution as the RIR also states that the decision to refuse FGM without repercussions is dependent on whether the families are urbanites or rural folks, seeped in the traditions and culture. I accept the principal claimant’s assertion that her in-laws, even though urbanites, uphold the rural and family traditions such as FGM.

[30]     Therefore, based on all the evidence before me, I find that the principal claimant and the minor female claimants will face a serious possibility of persecution if forced to return to Nigeria, especially since her father-in-law is motivated and has threatened the principal claimant of dire consequences and of forcibly taking away the minor female claimants to subject them to FGM. I find that their fears are indeed well-founded.

[31]     I now turn my attention to the claims of the associate claimant and the minor male claimant.

[32]     I find, on a balance of probabilities, that both of them face a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture if forced to return to Nigeria.

[33]     The associate claimant’s father threatened him and his family of harm of he did not agree to uphold the family and Yoruba tradition of subjecting the minor female claimants to FGM. After the principal claimant and the minor claimants left Nigeria, the associate claimant’s father attempted to have him kidnapped, even though the associate claimant had changed his place of residence and moved to another state without informing anyone about it. This is indicative of the agent of persecution’ s motivation and ability to reach the claimants if they are forced to return to Nigeria. These threats of harm continue unabated through the claimants’ relatives in Nigeria.

[34]     Therefore, based on all the evidence before me, I find, on a balance of probabilities, that the associate claimant and the minor male claimant will face a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture if forced to return to Nigeria.

State Protection

[35]     I find that adequate state protection would not be reasonably forthcoming in this particular case.

[36]     States are presumed to be capable of protecting their citizens, except in situations where the country is in a state of complete breakdown. The responsibility to provide international (or surrogate) protection only becomes engaged when national or state protection is unavailable to the claimant. To rebut the presumption of state protection, a claimant must provide “clear and convincing” evidence of the state’s inability to protect its citizens. A claimant is required to approach the state for protection if protection might reasonably be forthcoming. However, a claimant is not required to risk their life seeking ineffective protection of a state, merely to demonstrate that ineffectiveness (Ward [1993] 2 S.C.R. 689).

[37]     The principal claimant stated that she will not be able to seek police protection in Nigeria because the issue of FGM is considered private, in which the police do not intervene.

[38]     Objective evidence states that authorities often do not take complaints about FGM seriously. There are no reported instances of any prosecutions brought under federal anti-FGM legislation since its introduction in 2015. A recent study conducted by UNFPA and UNICEF does not list any arrests, cases, or convictions for FGM in Nigeria.viii

[39]     Objective evidence also states that there are reports which indicate that it remains extremely difficult for women and girls to obtain protection from FGM due to community support for these practices, the attitude of police, and treatment by the police of FGM as a community or family matter.ix

[40]     Finally, I quote the United Kingdom Home Office report, which indicates that the police may be discriminatory in their treatment of victims of ritual practices, including FGM, and that women often do not report such practices to the police due to a lack of trust. Police themselves can be part of the culture and thus fail to treat such practices as criminal.x

[41]     The objective evidence discussed above establishes that FGM is considered a private matter in Nigeria. It is a prevalent practice in the country, thereby influencing the response of the police as not taking such acts seriously and thereby failing to provide protection to victims or potential victims of FGM and gender-based violence. Therefore, I find that the claimants will not be able to access adequate state protection in Nigeria and that the presumption of state protection has been rebutted.

Internal Flight Alternative

[42]     The final issue is whether the claimants have a viable internal flight alternative (IFA) in Nigeria. In order to determine whether an IFA exists, I must assess whether there is any location in Nigeria in which the claimants would not face a serious possibility of persecution and whether it would be reasonable to expect them to move there.xi

[43]     The agent of persecution in this case is the associate claimant’s father, who is extremely motivated to pursue the claimants in order to fulfill the long-standing family and Yoruba tradition of subjecting the minor female claimants to FGM. He has demonstrated through the kidnapping attempt of the associate claimant that he has the motivation and the reach to locate them within Nigeria.

[44]     Therefore, for reasons similar to those of state protection and the motivation and ability of the agent of persecution to locate the claimants, I find that they do not have a viable internal flight available in Nigeria.

CONCLUSION

[45]     For the reasons above, I conclude that the principal claimant and the minor female claimants are Convention refugees under section 96 of IRPA. Accordingly, I accept each of their claims.

[46]     For the reasons above, I conclude that the associate claimant and the minor male claimant are persons in need of protection within the meaning of section 97 (1)(a) or (b) of IRPA. Accordingly, I accept each of their claims.

(signed)  Sandeep Chauhan

i Immigration and Refugee Protection Act, S.C. 2001, c. 27.

ii Exhibit 2.

iii Exhibit 1.

iv Exhibit 3, National Documentation Package (NDP), Nigeria, 16 April 2021, tab 1.4: EASO Country of Origin Information Report: Nigeria. Country Focus. European Union. European Asylum Support Office. June 2017. NDP, tab 5.2: Nigeria: The Law and FGM. 28 Too Many. June 2018.

v Exhibit 3, NDP, tab 1.4: EASO Country of Origin Information Report: Nigeria. Country Focus. European Union. European Asylum Support Office. June 2017.

vi Exhibit 3, NDP, tab 5.2: Nigeria: The Law and FGM. 28 Too Many. June 2018.

vii Exhibit 3, NDP, tab 5.12: Whether parents can refuse female genital mutilation (FGM) of their daughter; state protection available (2016-October 2018). Immigration and Refugee Board of Canada. 29 October 2018.

NGAI06183.FE.

viii Exhibit 3, NDP, tab 5.2: Nigeria: The Law and FGM. 28 Too Many. June 2018.

ix Exhibit 3, NDP, tab 5.12: Whether parents can refuse female genital mutilation (FGM) of their daughter; state protection available (2016-October 2018). Immigration and Refugee Board of Canada. 29 October 2018.

NGA 106183.FE. NDP, tab 5.16: Country Policy and Information Note. Nigeria: Female Genital Mutilation (FGM). Version 2.0. United Kingdom. Home Office. August 2019.

x Exhibit 3, National Documentation Package, Nigeria, 16 April 2021, tab 5.16: Country Policy and Information Note. Nigeria: Female Genital Mutilation (FGM). Version 2.0. United Kingdom. Home Office. August 2019.

xi Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.).

Categories
All Countries Nigeria

2021 RLLR 5

Citation: 2021 RLLR 5
Tribunal: Refugee Protection Division
Date of Decision: June 23, 2021
Panel: David Jones
Counsel for the Claimant(s): Johnson Babalola
Country: Nigeria
RPD Number: VC1-00847
Associated RPD Number(s): VC1-00848, VC1-00849, VC1-00850
ATIP Number: A-2022-00210
ATIP Pages: 000195-000201

DECISION

This transcript constitutes the member’s written reasons for decision.

[1]       MEMBER: So, we are now on the record. So, this transcript constitutes the Member’s written reasons for decision, as the decision was not given orally at a hearing.

[2]       This is the decision of the Refugee Protection Division of the Immigration and Refugee Board of Canada of the claims of the principal claimant, XX XXXX, her adult son, XX XXXX, her adult daughter, XXXX XXXX, and her minor son, XXXX XXX, who are all citizens of Nigeria seeking refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. The principal claimant was appointed as a designated representative for her minor son. I have also reviewed and applied the chairperson’s guideline on women refugee claimants fearing gender-related persecution and the chairperson’s guideline on child refugee claimants’ procedural and evidentiary issues.

Allegations

[3]       The claimants fear risk to their lives from the principal claimant’s husband’s former business partner, namely a XXXXXXXX (ph), if they were to return to Nigeria. During the hearing, the principal claimant also testified that she feared that her husband’s family would harm her if she returned because they believe that she is responsible for his disappearance. The female claimants also raised fears of being — of persecution because of their gender if they were to return.

[4]       Details of the claimants’ allegations can be found in the principal claimant’s Basis of Claim form and attached narrative, including the amendments which are found at Exhibit 7 and 8. The following is a summary of their allegations and testimony. The principal claimant and her husband were married in 2002 and they had five children together. Three of the children are part of this claim. The principal claimant’s husband had his own business XXX and XXXX XXXXX XXXX. In XXX 2017, the principal claimant’s husband received a large contract and he needed to borrow XXXXXX naira from his associate XXXXXXXXX to in order to pay for the XXXXX. Around XXX 2017 the principal claimant’s husband came home and said that the man he was to buy the XXXXX from had collected payment and had now disappeared, and that he was afraid of XXXXXXXX. In XXX 2017, XXXXXXXXX and some thugs came to the claimants’ home and demanded money. The principal claimant’s husband was beaten up and asked them for two months to pay back the money. After the men left, the principal claimant’s husband went to the police but they just accused the husband of trying to steal the money. A month later, the principal claimant’s husband and their oldest son were beaten up by some thugs on their way home. They were told that if XXXXXXXXX did not get his money soon they would both be killed. The principal claimant’s husband was scared and he and the eldest son left a few days later. The principal claimant has only received one call — phone call from them, which occurred a few days after they left, and her husband apologized for leaving her and the other children. The principal claimant started receiving threatening phone calls at home after her husband left, saying that her husband should pay or else.

[5]       In XXXXX 2017, XXXXXXXX and some thugs appeared at the claimants’ house asking for the husband. When the principal claimant said that he no longer lives there, they became angry and the claimants were all blindfolded and put into a van. They were taken to an abandoned warehouse. The principal claimant was told they would be released if her husband turned himself in or repaid the debt. The claimants were only fed one meal a day. On the third day, the principal claimant was taken away from where her children were held and she was raped by three men. The claimants were beaten daily. On the sixth day the principal claimant’s youngest child XXXX was crying and he would not stop. One of the men started beating XXXX, and XXXX became quiet and stopped moving. The man told the principal claimant that XXXX was dead, and they took him away. On the 10th day, the claimants were alone in the warehouse when they heard a noise outside. They started shouting and some hunters broke down the door and untied them. The hunters took them — oh, sorry, told them where to go to the police station, and they went there and made a report. Afterwards, the claimants went to a chemist for treatment and then they went to the church for help. The claimants stayed at their church until they left Nigeria. A few days later, the principal claimant heard from her neighbour that some men, including XXXXXXXXXX, had come to their house with the police looking for the claimants and saying that they had stolen some money. The principal claimant called the police, and they said there is no report on file and that they had probably made the whole thing up. The claimants already had a valid US visa from a planned holiday in 2016 that never happened, and with the help of their neighbour, who retrieved their passports, and their church, who arranged for the plane tickets, the claimants left Nigeria on XXXXXXX, 2017. On XXXXXXX, 2017 the claimants arrived in the US, and three days later they made their way to Canada. In XXXX 2018, the claimants applied for refugee protection.

Determination

[6]       I find that the claimants are persons in need of protection.

Analysis

Identity

[7]       The claimants’ identities as citizens of Nigeria have been established on a balance of probabilities by their Nigerian passports, located at Exhibit 1.

[8]       The allegations likely support a nexus to a Convention ground for the claimants, including, for the female claimants, a nexus to their membership in a particular social group based on their gender, but given my determination, I find it unnecessary to assess this claim under s. 96.

S. 97 Analysis

[9]       I find that the claimants are persons in need of protection, as their removal to Nigeria would subject them personally to a risk to their lives, to cruel — or to a risk of cruel and [inaudible] punishment under subsection l(b) of the IRPA.

Credibility

[10]     For the reasons below, I find that the adult claimants are credible witnesses. In making that finding, I am relying on the principle that a claimant who affirms to tell the truth creates the presumption of truthfulness unless there are reasons to doubt their truthfulness. In this regard, the principal claimant provided the vast majority of the testimony, as the other adult claimants were minors at the time of the incidents. The claimants all had some difficulties with details, including dates, during their testimony. As said, I do not make a negative credibility finding, given the personal characteristics of the claimants. The principal claimant never completed primary school. She is illiterate, and there is a XXXXXX report at Exhibit 5 that describes the principal claimant as suffering from XXXX that creates cognitive problems for her, including inability — an inability to retrieve specific details of her past, including dates. The other adult claimants, as mentioned before, were minors during the events that occurred. Given the claimants’ particular circumstances and Jack of sophistication, I make no negative credibility findings based on their difficulties with some of the details, including dates. While the adult claimants who testified had some difficulties, as noted above, in the end, their testimony was consistent with their Basis of Claim forms, supporting documents, and each other.  The claimants were able to clearly describe their fears for returning. to Nigeria. The principal claimant described details of how they escaped the warehouse and their travel back to the church. She also described the people she has been in contact with since leaving Nigeria, who have told her about how her agent of harm is continuing to pursue them. The claimants were all able to directly respond to questions asked.  There were no relevant inconsistencies in the claimants’ testimony or contradictions between their testimony and the other evidence. I find that the claimants who testified were credible witnesses.

[11]     The claimants also provided documents to support their claim. These documents can be found in Exhibits 5 through 2.11. They include, at Exhibit 5, photographs of the claimant’s family including XXXX. Exhibit 7 contains documents such as a birth certificate for XXXX. I have no reason to doubt the genuineness of these documents and since they relate to significant part of the claimants’ allegations, the unfortunate loss of their son, I put significant weight on these documents to support their allegations and overall claim. The claimants also provided some letters of support from different people in Canada. During the hearing, I asked the principal claimant why she did not provide letters of support from anyone in Nigeria, such as her neighbour. The principal claimant testified that she had asked people to provide letters and had expected them to come. She had also followed up with them when they didn’t arrive, and she was told that they had been mailed. These letters never arrived in time for the hearing. I accept the claimants explanation, as the documents are outside of her control, and she has made reasonable efforts to try and obtain them. As such, I make no negative credibility finding as a result.

[12]     I also find the claimants have a subjective fear of returning to Nigeria even though they first went to the US before coming to Canada and make a claim. The principal claimant testified that her son had found a video showing Nigerian claimants coming to Canada, and given the Trump administration at the time, they decided to come to Canada to claim protection. I accept this explanation, especially given the claimants only spent three days in the US prior to coming to Canada, and I find that the claimants have a subjective fear of returning to Nigeria.

Country Condition Evidence

[13]     I find that the country condition documents support the claimants’ fears of returning to Nigeria. As background, the 2020 US Department of State report in item 2.1, the national documentation package for Nigeria found in Exhibit 3, describes numerous human rights concerns in the country, including unlawful and arbitrary killings by both governments and non-state actors, forced disappearances by government, terrorists, and criminal groups, torture in cases of cruel, inhumane, or degrading treatment or punishment, arbitrary detention by government and non-state actors, serious acts of corruption, trafficking in persons, and inadequate investigation and accountability for violence against women. A 2020 report on Nigeria’s security situation found at item 7.7 indicates that organized criminal forces in the southern and middle parts of the country committed abuses such as kidnappings, that while the level of violence declined in 2009, it had been — it has been rising since then. A 2020 crime and safety report found at item 7.28, while directed at a US audience, states that, and I quote, “Crime is prevalent throughout Nigeria. Most crime directed towards US travellers and private security entities in the southern Nigeria seeks financial gain. US visitors and residents have been victims of a wide range of violent crime, including armed robbery, assault, burglary, carjacking, rape, kidnapping, and extortion. The most commonly reported crimes are armed robbery, kidnap for ransom, and fraud,” end quote. Other reports in the NDP, for example, item 7.37, also describe the prevalence of financially motivated kidnappings throughout Nigeria. The claimants also provided three articles, found in Exhibit 4, that describe the risk — sorry, the rising risk of kidnappings throughout Nigeria.

[14]     Numerous reports in the national documentation package also indicate that discrimination and violence against women is prevalent in Nigeria. See, for example, items 1.4, 1.8, 2.1, 2.9, 5.1, and 5.3. For example, a 2019 OECD report found at item 5.1 describes how Nigeria has taken steps to reduce gender­ based violence. However, the report states that, and I quote, “Despite these national efforts, violence against women is endemic in Nigeria,” end quote. This is also indicated in the Australian Department of Foreign Affairs reported in item 1.8, that states that, and I quote, “Women and girls frequently experience gender-based discrimination and violence in Nigeria. Nigeria remains a highly patriarchal society and cultural traditions, including forced child marriage, female genital mutilation, and so-called widowhood practices,” end quote.

[15]     I find on a balance of probabilities that the agent of harm has targeted the claimant as a result of a debt incurred by the principal claimant’s husband. I further find on a final balance of probabilities that the debt has not been repaid, and as such, it has created a risk for the claimants that is not faced generally by others Nigeria. Finally, given that the debt is still unpaid and the principal claimant’s testimony that she has been advised by people including her former neighbour in Nigeria that XXXXXXX is continuing to look for the claimants, I find that the claimants face an ongoing risk if they were to return to Nigeria. As such, I find on a balance of probabilities that claimants face a personalized risk to their lives that is not faced generally by others in Nigeria.

State Protection

[16]     With respect to state protection, a state is presumed capable of protecting its citizens, and a claimant must establish on a balance of probabilities, through clear and convincing evidence, that a country’s protection is inadequate. Simply asserting a subjective belief that state protection is not available is not enough to rebut the presumption. The more democratic a state’s institutions, the more a claimant must do to exhaust the options available to them. As discussed below, I find that the claimants have rebutted this presumption.

[17]     The objective evidence indicates that while the Nigerian government has taken steps to legislate protection, there remains no adequate state protection available for women fleeing gender-based violence. For example, a 2020 US Department of State report found at item 2.1 states that, and I quote, “Police often refuse to intervene in domestic disputes or blame the victim for provoking the abuse,” end quote. That report lists one of the significant human rights issues in Nigeria as the inadequate investigation and accountability for violence against women. In addition, the 2018 DFAT report at item 1.8 indicates that while Nigeria passed the Violence against Persons Act that criminalized sexual violence and provided support for domestic violence victims, that the government’s shelters are poorly equipped and do not provide adequate protection. Finally, a 2017 corruption report found at item 7.11 indicates that corruption is pervasive throughout all institutions in Nigeria. The report indicates the judicial system is perceived as corrupt and bribes to obtain favourable judgments is common, that almost — the report also indicates that almost all Nigerians believe that the police are corrupt, and the police are also considered very unreliable in enforcing the law, and that police officers continue to operate with impunity. This lack of adequate state protection can be found elsewhere in the national documentation package, including at the items noted previously. [inaudible] in the response — sorry, this is also shown in the response that the principal claimant received from the police when she tried to follow up on the two reports she made in person and they denied having any reports [inaudible]. Based on the evidence, I find on a balance of probabilities that there is no operationally effective state protection available to the claimants in their circumstances.

Internal Flight Alternative

[18]     The test for internal flight alternative is well-established. I must be satisfied that one, the claimant would not face a serious risk of — sorry, face a serious possibility of persecution or be subject personally to a danger of torture or to a risk of life or a risk of cruel and unusual punishment in the proposed internal flight alternative, and two, that conditions in that part of the country are such that it would be objectively reasonable in all the circumstances, including those particular to the claimants, for them to seek refuge there. For the reasons below, I find that the claimants do not have an internal flight alternative.

[19]     The issue of whether Abuja would be a viable internal flight alternative for the claimants was identified at the start of this hearing. The principal claimant testified that she would be at risk in Abuja because of Boko Haram, being unable to obtain employment as a single mother, and that XXXXXXX was able to locate the claimants — or would be able to locate the claimants through his connections with the police. XXXX also described fearing Boko Haram because he is a practicing Christian and described how he would be unable to find work or accommodations. Finally, XXXXX described her fears based on how women are treated in Nigeria

[20]     The country condition documents support the claimants’ belief that it would not be reasonable for them to relocate to another part of Nigeria, including Abuja. For example, a 2019 response to information report at item 5.9 indicates that single women may encounter difficulties, including with respect to education, employment, and housing.  With respect to housing, the report indicates that Nigeria has a lack of adequate housing, that prejudice exists against women, that landlords reject — that causes landlords to reject their applications. With respect to housing in Abuja, the report indicates that there is a deficit of 600,000 houses, and the report quotes a source who states that, and I quote, “The majority of women without support from male counterparts or family members have to engage in commercial sex work in order to pay for their rent,” end quote.  The report also indicates that women, particularly unmarried women, experience discrimination with respect to economic opportunities, wages, and conditions of work. It quotes two sources who indicate that female heads of household will be subject to sexual exploitation. Further, the report indicates concerns with the ability of women from out of state accessing public services, and that women not from the state would have to be married or reside in state for over 10 years to be eligible to access government welfare services. [inaudible] also states that the Nigerian government has no general support for women in need. Finally, the claimants are Christian, and a response to information request found at item 12.5 indicates that violence against Christians from Boko Haram occurs in Abuja and that Boko Haram has attacked churches, masques, and public spaces in Abuja. The claimants also provided, at Exhibit 4, a Human Rights Watch report that indicates the challenges faced by people trying to relocate to cities where they are not originally from, including the discrimination they face when it comes to education and employment.  As noted previously, the principal claimant did not complete primary school. The other adult claimants have not completed high school. None of the claimants have significant work experience. The principal claimant has worked as a XXXX before leaving Nigeria, and XXXX has started working at an XXX XXXXX, but his experience is minimal. Given the country conditions noted above, I find that it would be objectively unreasonable in their particular circumstances for the claimants to relocate to Abuja or elsewhere in Nigeria. Given my finding under the section — second prong of the test, I find it unnecessary to consider the first prong. Accordingly, the claimants do not have a viable internal flight alternative available to them.

Conclusion

[21]     For the reasons above, I find that the claimants are persons in need of protection within the meaning of s. 97(1)(b) of the Immigration and Refugee Protection Act, and accordingly the Board accepts their claim.

(signed)    David Jones

– – – – – – – – – – REASONS CONCLUDED – – – – – – – – – –

Categories
All Countries Nigeria

2020 RLLR 161

Citation: 2020 RLLR 161
Tribunal: Refugee Protection Division
Date of Decision: December 17, 2020
Panel: Zhanna Perhan
Counsel for the Claimant(s): Johnson Babalola
Country: Nigeria
RPD Number: TB9-25939
Associated RPD Number(s): TB9-26027, TB9-25982, TB-26025, TB9-26026, TB9-26024
ATIP Number: A-2022-00210
ATIP Pages: 000147-000151

DECISION

[1]       MEMBER:    This is a decision for XXXX XXXX XXXX, file number TB9-25939, the principal claimant, his wife, the associate claimant, and their children the minor claimants.

[2]       I’ve had an opportunity to consider your testimony, examine the evidence before me, and I’m ready to render my decision orally. The claims were heard jointly in accordance with Rule 55. The principal claimant was appointed designated representative for the minor claimants.

[3]       You claim to be citizens of Nigeria save your daughter XXXX, the minor claimant, who is claiming to be a citizen of the U.S. You’re claiming refugee protection pursuant to Section 96 and 97(1) of the Immigration and Refugee Protection Act.

[4]       I find that all the claimants but the minor XXXX XXXX who is the U.S. citizen, are Convention refugees, as you have established that you face a serious possibility of persecution based on a Convention ground. For the principal claimant it is religion and for the associated minor claimants it is a particular social group as family members. With respect to your United States born daughter XXXX, however, there were no allegations raised with respect to persecution in the United States. I find that she is not a Convention refugee nor a person in need of protection. The reasons are as follows.

[5]       The allegations of your claim can be found in the principal claimant’s original and updated basis of claim forms in Exhibit 2 and 8. In summary, you, the principal claimant, allege persecution on the grounds of religion who as a Christian is unwilling to adhere to the traditionalist approaches of Ogboni Tubalasai (phonetic) cult which your family on your father’s side has practiced for many generations. You as the eldest son were first persuaded and then threatened and attacked alongside your family members to take up the chieftaincy title and continue the family tradition. The associated minor claimants, save the youngest U.S. born one, fear your family and the Ogboni cult as well, as they were threatened and attacked along with you as your family members. Your daughter who has a U.S. citizenship will be safe in the United States as no allegations were raised against it.

[6]       I find that your identities as nationals of Nigeria and for the minor claimant XXXX as a citizen of the U.S. have been established on a balance of probabilities through your testimony and through the supporting documents found in Exhibit 1. I find no reason to doubt the authenticity of those documents.

[7]       In terms of your general credibility, the principal and associate claimant you both testified today, I have found you to be credible witnesses. There were no relevant inconsistencies in your testimony or contradictions between your testimony and the other evidence before me. I also find that there were no embellishments made within your testimony. All the minor inconsistencies were explained either by you or in the submissions by your counsel. Therefore, I accept what you have alleged in support of your claim, including the following.

[8]       The principal claimant you were born to a family of an Ogboni chief. The traditionalist religion was a part of your father’s family for generations. Your mother and your siblings were not supporting the secretive traditionalist cult and you all were practicing Christianity. At his death bed back in 2013 your father confided in you and warned you against joining the Ogboni Tubalasai cult. You, the principal claimant, disobeyed the other Ogboni members and buried your father at your family’s burial plot which made the Ogboni very angry. In addition, during the meeting following your father’s death where you and your siblings were summoned you were given instructions on joining the cult to continue your father’s work as a chief. You declined, and although you were threatened you were given a year to consider, prepare, and respond positively.

[9]       At the one year anniversary of your after’s death you and your family returned to the village and (inaudible) the eiders of the Ogboni cult. You did not seeing their demands were still up but they met you with hostility and at night attacked you and your family at your father’s house. They wanted to force you to swear the oath but you were saved by your friends. You left the village right away, travelled back to Lagos, and the following day went to report the attack to the police, who did not provide any protection as it was called a family issue. In addition, you had to seek medical attention for one of your children as he was injured during the attack.

[10]     During 2014-2017 the position was to be filled. You were threatened regularly as the position of the XXXX XXXX was to be filled only by you, the principal claimant. The Ogboni members were looking for you for all these years. They called you regularly. They threatened you regularly. They were able to locate you in XXXX 2017 as they came to your residence in Lagos and tried to persuade you to take up the chieftaincy. Because you refused you feared that you could be attacked again.

[11]     You took your family to your mother’s house in Ogun State but you couldn’t stay there long. For the safety of your wife and children you moved them to your wife’s sister’s house in Lagos where they stayed until you were ready to leave Nigeria. You left Nigeria in XXXX 2018 with your family and you stayed in the U.S. until XXXX XXXX2019, came to Canada in XXXX 2019 to claim asylum here.

[12]     In support of your claim you provided documents in Exhibits 6 through 11, including affidavits from your friends, mother, sister, your wife’s sister, a letter from Ogboni chief which dates back to 2013, death certificates of your father and your elder brother, and other documents. I was notable to give some of these documents full weight as there were some issues on the face of the document, in particular the affidavits from your mother and your sister, which did not coincide with the information in the NDP, in particular Item 9.2. In his submissions your counsel spoke on the issues with the documents that I had. The counsel turned my attention to the cultural differences between Canada and Nigeria. In addition, he presented new evidence that apparently is not yet present in the NDP about the Nigerian Bar Association. In particular, he gave the decision of the Supreme Court of Nigeria from 2015 which says that not having the MBA does not necessarily invalidate the document.

[13]     Having considered all the facts and submissions of your counsel, I was able to give full weight to all the documents before me, as they corroborate your written and oral testimony. I find on a balance of probabilities that you are credible witnesses. I am therefore satisfied that you have established your subjective fear.

[14]     The overall objective evidence supports your claims for Convention refugee protection. The national documentation package for Nigeria November 30th 2020 found in Exhibit 3 and the country conditions evidence submitted by your counsel in particular in Exhibits 6, 7, and 8, the NDP characterizes the Ogboni cult as a secret society or secret cult or even a criminal organization. It operates predominately in the Yoruba communities in the southwest according to the NDP Item 1.3. Although it is considered to be in decline the organization still has the capacity to locate former members anywhere in the country. According to the NDP membership though is generally voluntarily but not always especially for individuals with a close history of or personal knowledge about the cult. This is Item 1.13. Revealing information on Ogboni rituals can put individuals’ life at risk in the same item.

[15]     The principal claimant’s experiences with the cult are consistent with this evidence. Although, principal claimant, you were nota member of the cult, I find that you were closely connected to the cult through your late father and that you knew enough about their rituals and they were seeking to make you a XXXX XXXX of the cult and you refused to become a chief and that put your life at risk.

[16]     In addition to this information in the NDP, you also submitted some articles to the RPD in Exhibit 6 about incidents involving the Ogboni cult in Lagos State in particular where Ogboni threatened and killed those who refused the ritual. In his submissions your counsel also pointed out to the same Exhibit 6 and turned my attention that there is evidence that Ogboni operates not only inside but outside Nigeria and they have presence all over Africa.

[17]     Overall the objective country condition evidence supports the conclusion that you the principal and the associate claimant and your children, save your daughter the U.S. citizen, have an objective basis for your claim.

[18]     In order to establish that you are Convention refugees you must also prove that you do not have state protection and you cannot be adequately protected by the Nigerian police if you return to Nigeria. Based on both your evidence and on the evidence in the NDP I find that you will not have adequate state protection in Nigeria.

[19]     Principal claimant, you stated in your narrative and in your testimony that you tried to turn to police for protection but you did not receive any. The police did not want to interfere into what they believed was a family matter. The NDP addresses this issue of police protection for people who refuse to participate in ritual practices, in particular Item 10.8. It states that although protection ought to be available according to the constitution of Nigeria and legislation these laws are not always implemented in practice and that people who refuse ritual practices cannot necessarily rely on police to protect them. Officers are often part of the committee practicing the traditions and sympathetic to those communities and bribes may be required to secure some level of protection.

[20]     Taking all of this evidence into account I find there is clear and convincing evidence before me that you the claimants would not have adequate state protection against your agents of persecution in Nigeria.

[21]     With regards to possible viable internal flight alternative in Nigeria, there is evidence, which I already quoted, in the NDP that if the Ogboni cult desires to and is able to locate people it targets them anywhere in Nigeria. Given the attacks and the threats that you the principal claimant have already faced in Nigeria I find that you and your family are a target of this cult.

[22]     You testified that anywhere you and your family relocate in Nigeria you will have to restart your business to provide financially for your family. For that purpose you will need to advertise, you will need social media, telephone. Given that Ogboni presence is evident in Nigeria they will be able to locate you through media, through advertising, on a balance of probabilities. I also find it is more likely than not that the Ogboni have access to mobile phones, to the internet, and they can use these tools to find people throughout the country.

[23]     Ali of these evidence and argument, including the NDP evidence about the cult, the articles submitted in Exhibit 6, the argument about the advertising, use of social media to locate people, and the NDP evidence about the prevalence of use of mobile phone in Nigeria as also submitted in Exhibit 6, leads me to conclude that you, the claimants, do not have an IFA in Nigeria and you face a serious possibility of persecution anywhere you go in Nigeria.

[24]     So having considered all of the evidence, I find there is a serious possibility that you, the principal and associate claimant, and your children, the minor claimants, would face persecution in Nigeria pursuant to Section 96 of the Immigration and Refugee Protection Act so I find you to be Convention refugees. Your claims are therefore accepted.

[25]     As to your daughter XXXX XXXX the U.S. citizen and the minor claimant, her claim is denied for Section 96 and 97.

———- REASONS CONCLUDED ———-

Categories
All Countries Nigeria

2020 RLLR 155

Citation: 2020 RLLR 155
Tribunal: Refugee Protection Division
Date of Decision: December 23, 2020
Panel: Sudabeh Mashkuri
Counsel for the Claimant(s): Johnson Babalola
Country: Nigeria
RPD Number: TB8-02740
Associated RPD Number(s): TB8-02782
ATIP Number: A-2022-00210
ATIP Pages: 000109-000113

DECISION

[1]       MEMBER: I have considered your testimony and the other evidence in the case. I’m going to render my decision orally right now. When you do get the transcript of these reasons they will not be edited for spelling, syntax, and grammar, but I want to reassure you that I have considered and taken into my findings all the applicable case law, the documentary evidence, and all the other references that were before me.

[2]       The claimants XXXX XXXX XXXX XXXX and minor claimant XXXX XXXX XXXX, you claim … the principal claimant claims to be a citizen of Nigeria and the minor claimant is a citizen of the United States, and they are both claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       I have appointed you as the designated representative to the minor claimant XXXX XXXX XXXX, and your claims have been joined under Rule 50 of the Immigration and Refugee Protection Act regulations.

[4]       This is going to be a split decision. In deciding your claims I have considered the guidelines on women refugee claimants fearing gender related persecution and this is my determination.

[5]       I am first going to deal with the minor claimant. After considering all the evidence before me I find that the minor claimant, although she has … she has established that she is a US citizen, I find that she’s neither a Convention refugee nor a person in need of protection. No evidence was put forward on behalf of the minor claimant with regards to persecution in United States.

[6]       I do find that identity of the minor claimant has been established based on the principal claimant’s testimony. The minor claimant has a US passport, as well as a birth certificate. She also has a Nigerian passport based on her parent’s citizenship. However, I do find that since she’s also a citizen of United States and no claim was advanced with regard to the claimant against the US, I … that … that would suggest that as a citizen of the US she would not be able to obtain State protection in the US.

[7]       I do find that her claim has failed, that she’s neither a Convention refugee nor a person in need of protection, and therefore her claim is denied. However, this is my second determination.

[8]       I find that the principal claimant is a Convention refugee based on her membership in a particular social group. I do find that there’s an intersection between two grounds. One is a membership in a particular social group as a family member of … of a child who is XXXX, and I also find that there is an intersection of the principal claimant’s immutable being as … as a woman and therefore I find that there is a gender aspect. She is a mother and a woman who’s deemed to be responsible, either as a XXXX, which is based on her gender, for her child having … having been XXXX with XXXX.

[9]       As far as the analysis of this case is concerned, as I stated previously, as far as identity’s concerned I find that the principal claimant has established that she is a citizen of Nigeria based on her testimony and her passport, and the minor claimant is a citizen of Nigeria as well as United States.

[10]     Credibility is an issue in every claim. I found that the claimant was … the principal claimant was credible witness with regards to what she has alleged in support of her claim with regards to her daughter.

[11]     And I want to just go a little bit with regards to the allegations of this claim. The allegations were set out in three Basis of Claim Forms about the fear of the claimant on being persecuted by her in-laws because of her mother-in-law dying in 2016, in XXXX 2016. However, I have taken into consideration that her fear materialized at that point for being perceived as a XXXX, responsible for the death of her mother-in-law, but however, that was almost four and a half years ago. A lot has happened since then.

[12]     And I’ve looked at the documentary evidence provided and I find that this is basically a sur place claim in that the claimant’s daughter, although assessed in the United States in 2017 with developmental delay, was not diagnosed with XXXXandXXXX XXXX until 2019, when the claimants were in Canada.

[13]     I’ve looked at … I have found the claimant’s oral testimony with regards to how she would be treated if she is to return presently to Nigeria to be credible, as well as the objective documentary evidence concerning the perception of the persecutors for a woman, a mother of an XXXX child. The minor claimant is only XXXX years old and she would be returning to Nigeria with her mother, although she’s American citizen.

[14]     I have looked at the past behaviour of the claimant’s in-laws as agents of persecution with regards to what they believed, what they call ju-ju or cultural milieu of a woman blamed for misfortunes falling on a family, and I do find that, on a balance of probability, she would be persecuted based on the recent diagnosis of XXXX for the minor claimant in Canada.

[15]     As I stated, as far as credibility is concerned, I find that the fear for the claimant basically materialized once she was in Canada with regards to the diagnosis of XXXX for her child.

[16]     The claimant fears her in-laws, society, community, and the discrimination that she fears in … my finding will cumulate to persecution. Taking into account the objective documentary evidence of those who are … who have XXXX or parents of XXXX children are treated in Nigeria.

[17]     I have vast amount of documentary evidence. The fear is forward-looking and therefore I do find that there’s a reasonable chance of persecution of the principal claimant as a mother of an XXXX child if she’s to return to Nigeria presently.

[18]     I just wanted to put into the record some of the objective documentary evidence that was provided to me in Exhibit Number 8, for example, with regards to exorcisms as a common treatment for those who have XXXX. Mothers are blamed for their children’s XXXX in Nigeria.

[19]     Persons with XXXX and disabilities are perceived as possessed and evil. And although minor claimant is an American citizen and not at risk if her mother is deemed to be the person who’s responsible for XXXX XXXX the principal claimant also would be at risk.

[20]     XXXX is deemed, as I stated, seems to be connected to witchcraft and diabolic activities. There’s a … there is a fear of social stigma also for the principal claimant and her daughter. The extended family whose in Nigeria also would be part of the agents of persecution.

[21]     As stated in the documentary evidence, in Nigeria there is a lot of mysticism around disabilities and people who don’t often know what to attribute to the disability of a child and the Nigerian culture.

[22]     I … I have some documentary evidence with regards to the Yoruba culture. Blames diseases and disabilities, like XXXX XXXX often to mothers and on witchcraft and spirits and hereditary causes or just bad parenting, as stated in the basis of … objective documentary evidence.

[23]     There’s also a lack of community and family support and social support, and as I stated, shame and stigma with regards to those who are deemed to be parents of XXXX children.

[24]     I do have documentary evidence that those who are deemed to be possessed are sometimes killed, tied up, and generally mistreated very badly in Nigeria.

[25]     As far as State protection is concerned, there’s ample documentary evidence with regards to the police corruption in Nigeria.

[26]     Recently in the news there has been reports of protest against SARS which is a special Nigerian police force department. There’s also ample documentary evidence with regards to lack of protection for those who are fleeing anything to do with family problems.

[27]     Furthermore, the claimant’s in-laws are well-known politicians. They are well connected with the police, and there are … therefore I find that there’s inadequate State protection available to the claimants, specifically in this particular case to the principal claimant for someone who’s deemed to be a XXXX or responsible for her daughter’s XXXX.

[28]     As far as internal flight alternative is concerned, I’ve taken into consideration the two-prong test given tome by the Federal Court of Appeal. I have also taken into account the gender guidelines. I find that the first prong that the reach and means and the influence of the extended in-law’s family is very wide.

[29]     They do have the motivation. They seem to be steeped in cultural background of belief of mysticism.

[30]     And I do find that the documentary evidence provided with regards to the agent of persecution, there were some media reports with regards to the principal claimant’s in-laws being very influential and holding high office in Nigeria. And as I stated, the State protection is extremely inadequate presently in … in Nigeria.

[31]     There’s also the issue of whether it’s reasonable during pandemic for the claimants to go and live in a different place, the second prong of the IFA. I’ve taken into consideration again particular circumstances of the principal claimant of being a mother of an XXXX child. There is a lack of programs for the minor claimant.

[32]     Again, I do note it is a fictional, legal fictional programs for the minor claimants. Again, I do note it is a fictional, legal fictional premises that we have the minor claimant would not be going back with her mother. She’s XXXX years old. Obviously, she would not be going back to the United States. She would going with her mother.

[33]     And an XXXX child with absolutely no programs available to her in Port Harcourt, as well as the principal claimant who has been getting XXXXand XXXX assistance in Canada. I do not find that there would be any … anything like that available to her in Port Harcourt. She would living as a single mother since her husband would continue to live in Lagos, so that her in-laws would not be able to find her.

[34]     There’s stigma. There’s a lack of opportunities for employment for single mothers, and presently since the fear is forward-looking, I find that there’s no viable or reasonable internal flight alternative available to the principal claimant.

[35]     Therefore, based on the foregoing analysis, I find that the principal claimant is a Convention refugee and I reject the minor claimant’s claim with regards to United States. Thank you.

COUNSEL: Thank you so much, Madam Member. Well, appreciated. Thank you.

MEMBER: Thank you.

———- REASONS CONCLUDED ———-

Categories
All Countries Nigeria

2020 RLLR 149

Citation: 2020 RLLR 149
Tribunal: Refugee Protection Division
Date of Decision: November 3, 2020
Panel: M. Bourassa
Counsel for the Claimant(s): Henry Igbinoba
Country: Nigeria
RPD Number: TB8-13768
Associated RPD Number(s): N/A
ATIP Number: A-2022-00210
ATIP Pages: 000053-000061

REASONS FOR DECISION

[1]       The claimant, XXXX XXXX XXXX claims to be a citizen of Nigeria, and is claiming refugee protection pursuant to s. 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).i

[2]       The panel has received and considered post-hearing evidence,ii namely updated medical reports.

DETERMINATION

[3]       Having considered the totality of the evidence, the panel finds that the claimant, is a Convention refugee pursuant to s. 96 as he has established a serious possibility of persecution based on a Convention ground, namely his perceived political opinion.

ALLEGATIONS

[4]       The allegations are set out in the claimant’ s Basis of Claim form.iii In short, the claimant alleges that if he were to return to Nigeria, he fears for his life at the hands of the state security apparatus, especially the military, due to his perceived political opinion based on his perceived membership in the Indegenous People of Biafra (IBOP).

[5]       The claimant alleges that he operated a business at XXX in Umuahia in Abia State. He XXXX XXXX XXXX XXXX at the XXXX XXXX XXXX in Lagos to see and provide services to his customer base in Umuahia. He would shuttle between his business in Umuahia and his home is Lagos.

[6]       He alleges that in XXXX 2016, he was was detained, interrogated and mistreated by the military on suspicion of involvement with the IPOB and released without being charged.

[7]       The claimant alleges that he went to his nearby home village of XXXX XXXX to stay with relatives and recover. At the end of October 2016, he received a call from a business colleague who informed him that the military had returned to his shop at XXXX. The claimant returned to Lagos to live with his wife and family. He alleges that he remained very scared and largely stayed inside the house. He did not experience any problems after his return to Lagos.

[8]       The claimant alleges that he and his wife had planned a trip to Canada to celebate an important anniversary that had to be delayed because of what had happened to him. They left Lagos on XXXX 2018.

[9]       The claimant alleges that his wife received a call while in Canada informing her that the “Bale” or local chief had sent men looking for her as her same sex relationship had been exposed. They separated and the claimant remains estranged from his wife. The claimant also fears the police and the “Bale” of the area where they formerly resided and that he risks being arrested because of his estranged wife’s issue.

[10]     The claimant alleges that the military have come to his home village looking for him, most recently on November 20, 2019, and that there is nowhere in Nigeria where he would be safe.

NEXUS

[11]     The panel finds that there is a link between what the claimant fears and one of the five Convention grounds, namely, his perceived political opinion as a perceived member of the IPOB.

ANALYSIS

Identity

[12]     The panel finds that the claimant’s personal identity and nationality as a citizen of Nigeria and his Igbo ethnicity have been established on a balance of probabilities. This has been established through the claimant’s testimony and the supporting documentary evidence filed that includes his passport, a copy of which was provided to the Board by IRCC/ Canada Border Services Agency (“CBSA”).iv

CREDIBILITY

[13]     Considering the totality of the evidence, the panel finds the claimant to be a credible witness and therefore believes what he has alleged in support of his claim as set out in oral and written testimony. The panel notes that the claimant’s estranged spouse has a separate claim for refugee protection based on her own personal circumstances. She did not appear as a witness nor did she submit any evidence in support of the claimant’ s claim.

[14]     The claimant testified credibly and in detail that he was detained, interrogated, and mistreated by the military in XXXX            2016 on suspicion of involvement with the IPOB and released without being charged. He described in detail how he was arrested by the military who entered his shop asking about IPOB materials, which he denied having. He was taken along with other men to a military barracks where he was detained, beaten and interrogated about the IPOB, its leadership and activities and the whereabouts of Emma Powerful. He denied any involvement with the IPOB. Two days later, he was taken to his home where they saw XXXX XXXX XXXX XXXX that he used in his XXXX and was accused of being an engineer technician for Radio Biafra. They also went to his shop in XXXX where they found various XXXX that he was repairing or had for sale. He was taken back to the barracks and subjected to further interrogations and beatings. He alleges that he lost XXXX XXXX as a result of the beatings. He remained in detention for a further 10 days and was released. The document issued to him by XXXX showing that he owned a business there and his driver’s licence were retained. He testified that he was never charged, and no conditions were attached to his release.

[15]     The Panel finds the claimant’s account of events in Umuahia is plausible in light of the objective documentary evidence regarding the treatment of members and suspected members and supporters of the IPOB by joint military and police operations throughout the south-eastern region of Nigeria during this time period.v The panel also notes that the documentary evidencevi refers to Radio Biafra and its main host, Emma Powerful, and its role in organizing protests and calling for boycotts. According to one source, the broadcasts are illegal and are conducted live from an undisclosed location in Nigeria.

[16]     The claimant also provided evidence of his business registrationvii which the panel found to be credible.

[17]     The claimant also provided an affidavitviii from C.C. who owns a shop in XXXX XXXX

as the claimant that corroborates the claimant’s account of his detention by the military arrest as a suspected member of the IPOB and the military’s return trip to XXXX and to the claimant’s shop while he was recovering in his village. The panel finds the affidavit to be credible.

[18]     The claimant also provided an affidavitix from U.I., a cousin, that corroborates the claimant’s account of his condition and that he cared for the claimant in the village of XXXX XXXX Umuahia in Abia State. The panel finds the affidavit to be credible.

[19]     The claimant also provided an affidavitx from M.O.O., that states that the military and plain clothed security agents came to the village on XXXX 2019 and arrested IPOB members and others and also came to the family house in search of the claimant. The panel finds the affidavit to be credible.

[20]     The claimant also submitted reports from C.E. with XXXX XXXXxi hearing clinic that references the claimant’s history of head trauma by the Nigerian military and corroborates hearing loss in          XXXX. The claimant testified that he receives ongoing treatment from a psychotherapist and submitted two reports into evidence.xii

[21]     Considering the totality of the evidence, the panel finds on a balance of probabilities that the claimant has a subjective fear of returning to Nigeria due to his perceived political opinion as a perceived member of the IPOB. He has established that he is a person of previous interest to the state security apparatus, especially the military, and that he was detained, interrogated and mistreated by the military in Umuahia in Abia State on suspicion of involvement with the IPOB and released without being charged and that the military continue to look for him.

OBEJCTIVE BASIS

[22]     The Board finds that the claimant’s allegations are supported by the documentary evidence, namely the national documentation package for Nigeriaxiii and claimant’s disclosure, xiv and that the claimant could face a serious possibility of persecution should he return to Nigeria on account of his perceived political opinion as a perceived member of the IPOB.

[23]     The panel considered the following documentary evidence.

[24]     It was reported by Amnesty International (AI) in September 2016xv that on several occasions security forces have used excessive force against pro-Biafran activists who have attended protest marches or attempted to do so across south-eastern Nigeria. AI has documented cases of arrest, enforced disappearance and often killing of supporters and members of various pro-Biafran groups. Scores of Biafran independence supporters were in detention for attempting to hold or participate in peaceful assemblies, many of them since January 2016.

[25]     Another AI reportxvi from November 2016 refers to its research that shows a disturbing pattern of hundreds of arbitrary arrests and ill-treatment by soldiers during and after IPOB events, including arrests of wounded victims in hospital, and torture and other ill-treatment.

[26]     Other sources in addition to AI xvii report on members and supporters of IPOB as well as bystanders being injured or killed by police and military in Onitsha on May 30, 2016 during protests held to mark the anniversary of the start of the 1967 Biafra war. According to AI, this resulted in at least 17 deaths and 50 injuries and was the consequence of excessive and unnecessary use of force.

[27]     AI also noted that between August 2015 and May 2016, there were at least five similar incidents in Onitsha alone where the police and military shot unarmed IPOB members and supporters. AI reported that the military opened fire on peaceful IPOB supporters and protesters and that killing and mass arrests of members and supporters by joint military and police operations happened in October, November and December 2015.xviii

[28]     Sources also stated that Nmamdi Kanu, the leader of the IPOB, was jailed on charges including treason which is punishable by death and kept in custody until April 2017 despite the court ordering his release.xix Four IPOB members who were arrested with Nnamdi Kanu in 2015 were jailed and charged with treasonable felony. They were granted bail in June 2018.

[29]     The Nigerian military launched Operation Python Dance II in September 2017. The military raided Kanu’s home as part of the operation. AI indicated that ten IPOB members were killed and twelve injured by the military and the military noted that the deaths occurred during their attempt to arrest Kanu at his home.xx

[30]     Sources indicated that the Nigerian military designated the IPOB as a terrorist organization in September 2017.xxi Also, five south eastern states including Anambra banned all IPOB activities in September 2017.  Sources indicate that the Abia State Police Commissioner stated, subsequent to the terrorist designation and the ban on IPOB activities, that anyone caught with Biafran materials would be arrested and prosecuted.xxii According to other sources, the Anambra Police Commissioner indicated the ban would be enforced and anyone involved in the activities of the IPOB would be charged with terrorism, which carries a minimum sentence of twenty years and a maximum sentence of the death penalty.xxiii

[31]     Other sources reported that in September 2017, sixty pro-Biafra supporters who participated in an IPOB rally which left a police officer dead and a police station nearly burned down, were charged and jailed for conspiracy, terrorism, attempted murder and membership in an unlawful society.xxiv

[32]     Other sources indicates that 112 women in Owerri were arrested during an August 2018 protest regarding the whereabouts of Kanu and subsequently detained and charged with treason and unlawful assembly.xxv

[33]     Other sources indicated that 51 people were arrested in December 2018 for being m possession of different emblems of the IPOB.

[34]     Other sources indicate that Enugu State Joint Security Patrol teams found Biafra insignias on 140 individuals going to a funeral. All 140 individuals were arrested and charged with terrorism and sent to prison by the magistrate court until their case could be heard at the High Court.

[35]     The panel has also considered recent documentary evidence from June 2020xxvi that refers to the arrest of IPOB protesters in Abia state that were to be brought to the police headquarters in Umuahia, the same location where the claimant operated his business. More recent documentary evidence from August 2020 refers to clashes between IPOB members and the police, army and Department of State Services operatives when the police attempted to arrest them.xxvii

[36]     Considering all of the evidence, including the claimant’s credible account of events that he is a person of previous interest to the state security apparatus, especially the military, and that he was detained, interrogated and mistreated by the military in Umuahia in Abia State on suspicion of involvement with the IPOB and that the military continue to look for him and the documentary evidence with respect to the treatment by Nigerian authorities of actual or perceived members and supporters of the IPOB, the panel finds that the claimant would face a serious possibiity of persecution should he return to Nigeria based on his perceived political opinion as a perceived member of the IPOB.

STATE PROTECTION

[37]     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 it is objectively unreasonable for the claimant to seek protection from authorities in Nigeria. The state security apparatus, especially the military, is the agent of persecution. Therefore, the panel finds that there is no adequate state protection available for the claimant in Nigeria.

INTERNAL FLIGHT ALTERNATIVE

[38]     With regards to an internal flight alternative (“IFA”), this is not a viable option as Nigerian authorities have effective control over the territory. Based on the objective documentary evidence as set out above, the panel finds that there is a serious possibility of persecution throughout Nigeria and as such there is no viable IFA.

CONCLUSION

[39]     Based on the totality of the evidence, the panel finds that the claimant would face a serious possibility of persecution based on his perceived political opinion as a perceived member of the IPOB. Therefore, the panel finds that the claimant is a Convention refugee and accepts his claim.

(signed)    “M. Bourassa” M.BOURASSA

November 3, 2020 Date

i Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1)(b).

ii Exhibit 18, post-hearing evidence.

iii Exhibit 1.

iv Exhibit 2.

v Exhibit 7, Response to Information Request NGA 106308.E, 28 June 2019.

vi Exhibit 13,

vii Exhibit 9, item 6.

vii Exhibit 7, item 6

viii Exhibit 9, item 1.

ix Exhibit 9, item 2.

x Exhibit 17.

xi Exhibit 18, post-hearing submissions and Exhibit 9, item 5.

xii Exhibit 18, post-hearing evidence and Exhibit 7, item 4.

xiii Exhibits 3 and 13.

xiv Exhibits 16 and Exhibit 10, item 5, Nigeria: The lndigenous People of Biafra (IPOB), including objectives, structures, activities, relations with other Biafran independence groups and treatment by authorities.

XV Ibid.

xvi Exhibit 10, item 2.

xvii Ibid.

xviii Ibid.

xix Exhibit 13, NGA 106308.E, 28 June 2019.

xx Ibid.

xxi Ibid.

xxii Ibid.

xxiii Ibid.

xxiv Ibid.

xxv Ibid.

xxvi Exhibit 16.

xxvii Ibid.