Citation: 2019 RLLR 2
Tribunal: Refugee Protection Division
Date of Decision: December 23, 2019
Panel: Marcelle Bourassa
Counsel for the claimant(s): Nicholas Owodunni
RPD Number: TB9-01394
Associated RPD Numbers: TB9-01395
ATIP Number: A-2020-01124
ATIP Pages: 000014-000024
REASONS FOR DECISION
 The claimant, [XXX] and her daughter, [XXX] (the “minor claimant”), claim to be a citizens of Nigeria, and are claiming refugee protection pursuant to s. 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).i
 The claimant was appointed as the designated representative for the minor claimant.ii
 Since the claimant’s claim involved allegations regarding sexual orientation, the panel considered the Chairperson’s Guidelines on Refugee Claimants involving sexual orientation and gender identity and expression (SOGIE). As the claimant’s claim also related to her gender, the panel also considered the Chairperson’s Guidelines on Women refugee claimants fearing gender related persecution.
 The allegations are set out in the claimant’s Basis of Claim (BOC) form.iii In short, the claimant alleges a fear of persecution based on her sexual orientation from the police, her former husband, his extended family and his associates, her community in Ekiti State, Lagos State and in Abuja. She identifies as a bisexual woman. She alleges that her sexual orientation has been exposed to family members, her community, and the police by her former husband. She alleges that her former husband has also exposed her same sex partner.
 The claimant also alleges a fear of persecution at the hands of her former husband who wants her to undergo a ritual cleaning. She further alleges a fear of persecution for the minor claimant from her former husband who wants to have their daughter circumcized. If returned to Nigeria, she fears she could be arrested and detained by the police or forced to undergo a ritual cleansing.
 Having considered the totality of the evidence, the panel finds that the US minor claimant, [XXX], is not a Convention refugee pursuant to section 96 nor is she a person in need of protection under subsection 97(l) of the IRPA.iv Counsel indicated clearly at the beginning of the hearing that he was not leading any evidence with respect to the US minor claimant, a citizen of the United States (“US”).v In respect to this claim, the panel does not have any persuasive evidence before it to suggest that the minor claimant would face a serious possibility of persecution in the US, or that she would face a danger of torture, a risk to her life or a risk of cruel and unusual treatment or punishment in the US were she to return there. Therefore, the panel rejects the claim of the US minor claimant. The remainder of this decision will refer to the claimant.
 Having considered the totality of the evidence, the panel finds the claimant, [XXX] to be a Convention refugee as she has established a well-founded fear of persecution based on a Convention ground, namely her membership in a particular social group, being a bisexual woman.
 The panel finds that the claimant’s personal identity and as a citizen of Nigeria has been established on a balance of probabilities. This has been established through her testimony and the supporting documents on file that include her passport, a certified true copy of which was provided to the Board by CBSA.vi
Claim based on her sexual orientation as a bisexual woman
 Overall, the panel found the claimant was a credible witness and believes what she has alleged in support of her claim. She was overcome with emotion at times and had to pause in giving her testimony. She answered all questions asked with a sufficient level of detail. She also provided supporting documentation. There were no major contradictions or omissions that went to the core of the claim. There were few minor inconsistencies. For example, she did to include the name of her first spouse in Schedule A. She testified that she is divorced from her first husband, [XXX] since 2013 and she refers to him in her BOC narrative. This was also an [XXX] She explained that she included the name of her most recent spouse and didn’t know that she had to write down everything. The panel finds her explanation to be reasonable.
 The claimant provided spontaneous details about her same sex relationship with [XXX] including how they first became involved with one another in 1988 while attending secondary school as boarders in Rivers State and a particular incident when they were discovered together by her mother. They lost contact when the claimant moved away to live with her father in [XXX] in Ondo State. She described in spontaeous detail how they reconnected in [XXX] 2015, meeting by chance when she recognized [XXX] voice while shopping with her daughter at the [XXX]. The panel observed the claimant to ‘light up’ when talking about [XXX] and especially so about their chance encounter when they reconnected after so many years. The claimant testifed that she was going through a particularly bad time as her marriage to [XXX] was both emotionally and physically abusive. [XXX] marriage had not worked out as her husband had divorced her when she did not produce a child. She had come to live and work in Lagos. They resumed their relationship.
[ 11] The claimant also provided spontaneous details about the evening in [XXX] 2015 when her husband came home unexpectedly and found the claimant and her partner [XXX] being intimate. Pauline escaped. The claimant testified that she tried to work things out with her husband but things only got worse. He told her he was not longer interested in her and became involved with other women. She left with her daughter to live with her sister and her family in [XXX] in [XXX] Ibom State. They returned to [XXX] in [XXX] 2016 and went to live with [XXX] She stated that her husband had divorced her and continued to contact her by phone as he insisted on their daughter undergoing circumcision as he did not want her to turn out to be promiscuous like the claimant. Her husband located them and they fled to [XXX] to stay with a cousin of [XXX]. She made plans to leave Nigeria. [XXX] did not accompany them as she could not obtain a US visa.
 The claimant testified that her former husband subsequently located [XXX] at her home in [XXX] in search of the claimant and outed her to neighbours. She relocated to a friend’s home but the claimant’s former husband located her at her place of work. [XXX] was scarred and eventually left Nigeria and is in the Ukraine. They re-established contact late in 2018 and talk from time to time.
 The claimant testified that her family informed her that her former husband went to her father’s home in [XXX] and reportedly created a scene and outed here to her father and community. She was told that he said that he had gone to the police to report her.
 The claimant testified that she joined the Montreal LGBTQ in 2018 while living in Montreal and participated in various activities including Montreal Pride 20I8. She made a good friend while living in Montreal who provided a letter of support. She relocated to Toronto in [XXX] 2018. She is a member of The [XXX] and completed the Newcomer Orientation and attends the Among Friends program. She is also a member of the [XXX] and attends church service regularly. She also volunteers at the [XXX]. She stated that she is interested in participating in these groups and that it is a place for her to socialize and make friends. She also attended Toronto Pride 2019.
 Since being in Canada, the claimant stated that she has not been involved in a same sex relationship but would like to be as she is lonely. She tried one dating app but it didn’t work out.
 The claimant provided documentation in support of her allegations including:
• A letter confirming the claimant’s membership in the Montreal [XXX] for 2018-19;vii
• The claimant’s membership card for the Montreal [XXX] and a ticket stub for [XXX];viii
• A Statement of Membership for the [XXX] and a record of attendance at the Newcomer Orientation Training.ix
• Photos of the claimant attending activities at the [XXX] at Montreal Pride 2018, Toronto Pride 2019 and with her girlfriend;x
• A psychological assessment from Dr. [XXX], that refers to her relationship with her same sex partner.xi
• A letter of support from [XXX] confirming that she first met the claimant in Montreal at a gay pride club party in [XXX] 018, that they subsequently became friends and that she is aware that the claimant was caught by her husband while with her same sex partner in Nigeria and subsequently left the country;xii
• An exchange of e-mails between the claimant and her father confirming that he is aware of her sexual orientation that she was caught with Pauline by her former husband, that she has brought shame to him and the entire family and that she should not think of returning to Nigeria as many people are aware of what happened;xiii
• A letter of support from her sister [XXX] confirming that she is aware of the claimant’s sexual orientation and expressing her acceptance and support for the claimant;xiv
• An e-mail from [XXX] confirming that she left Nigeria and that the claimant’s former husband located here at her home in Lagos and at work while searching for the claimant and outed her to neighbours,xv
• A copy of the claimant’s certificate of marriage to [XXX] and a certificate of divorce.xvi
 The panel has considered the claimant’s testimony that she applied for asylum in the US but left before a decision had been made. The claimant testified that they had been living at a Church in Indianapolis and had heard that ICE had picked up people at a church in Texas and deported them. She explained that she was very scarred and couldn’t get in touch with her lawyer. Other persons at the church had left for Canada and she decided to do the same thing. She provided a copy of the documentation in her possession about her asylum application. The panel has considered the evidence before the panel including her reasons for leaving the US and finds, on a balance of probabilities, that the claimant has no status in the US.
 Considering the totality of the evidence before it, the panel finds that the claimant to be a credible witness and therefore believes what she has alleged in support of her claim as set out in her oral and written testimony. Specifically, the panel finds the claimant credible in regards to her bisexual orientation, that she was involved in a same-sex relationship with [XXX] and that, on a balance of probabilities, her sexual orientation has been exposed. Therefore, the panel finds that claimant has established on a balance of probabilities that she is a bisexual woman and has a subjective fear of persecution in Nigeria.
 The panel finds based on a review of the documentary evidence including the national documentation packagexvii and counsel’s disclosurexviii that the claimant would face more than a mere possibility of persecution should she return to Nigeria as a bisexual woman. The documentation evidence supports her allegations that LGBT persons in her circumstances face persecution from Nigerian authorities.
 The panel has considered the objective documentary evidence that indicates that federal criminal law deems same-sex activity punishable by up to 14 years in prison.xix Also, the Same Marriage Prohibition Act (SSMPA) enacted in 2014 effectively renders illegal all forms of activity supporting or promoting LGBT rights.
 Following the passage of the SSMPA, there were reports of increased threats and harassment against LGBT persons based on perceived sexual orientation or gender identity.xx
 The social context in Nigeria is intolerant of sexual minoritiesxxi. LGBT persons are treated with disdain and disregard for their fundamental human rights and face being ostracized from their community, acts of violence, stigma and reproach.xxii LGBT persons in Nigeria do not openly identify as members of the LGBT community and they may be at risk of mob attacks and arbitrary arrest across Nigeria.
 Another source states that there have been recorded instances of corrective rape against lesbian and bisexual women and women being forced into marriage because of their sexual orientation or gender identity and psychological violence such as being cut off from friends, family disowning their daughters and other subtleties of violence.xxiii
 According to one source, people detained by authorities for same-sex activity have been forced to name others associated with them. Suspects arrested for homosexuality are put under considerable pressure to confess and sentences passed on confessions cannot be appealed.xxiv Chances of getting a fair trial once arrested or persecuted are considered non-existent.xxv
 Human Rights Watch refers to reports of scores of persons being arrested, detained and prosecuted based on their real or perceived sexual orientation and gender identity in its January 2019 report.xxvi
 According to another source, there is no government support for LGBT persons and the National Human Rights Commission does not actively pay attention to cases of human rights violations of LGBT people.xxvii
 Considering all of the evidence including, the documentary evidence as well as the credible evidence of the claimant as to her sexual orientation, the panel finds that hers fear of persecution is objectively well-founded and that she would face more than a mere possibility of persecution should she return to Nigeria as a bisexual woman.
 Based on the claimant’s personal circumstances as well as the objective country documentation as referred to above, the panel finds on a balance of probabilities that the claimant has rebutted the presumption of state protection with clear and convincing evidence. State protection is not available to the claimant as same-sex activity is criminalized in Nigeria.
INTERNAL FLIGHT ALTERNATIVE
 Based on the objective documentary evidence as set out above, the panel finds on balance of probabilities that there would be a serious possibility of persecution throughout Nigeria for the claimant as same-sex activity is criminalized in Nigeria and as such there is no viable IFA.
 Given the panel’s finding that this issue is determinative of the claim, it is not necessary to consider her claim on the basis on her alleged fear of persecution due to gender based violence.
 For the foregoing reasons, the panel finds that the claimant is a Convention refugee and accepts her claim.
(signed) M. BOURASSA
December 23, 2019
i Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(l)(b).
ii Immigration and Refugee Protection Act, S.C. 2001, c, 27, as amended, section 167(2).
iii Exhibit 2.
iv Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1).
v Identity and country of reference established, can a balance of probabilities, by the US minor claimant’s American passport at Exhibit 1.
vi Exhibit 1, Documentation forwarded by CBSA/IRCC.
vii Exhibit 7, Disclosure received on December 3, 2019, p. 26.
viii Ibid., p. 13;
ix Exhibit 7, Disclosure received on July 3, 2019.
x Exhibit 7, Disclosure received on December 3, 2019, pp. 37-42.
xi Ibid., pp. l-5.
xii Ibid., p. 12.
xiii Ibid., p. 22.
xiv Ibid., p, 23.
xv Ibid., p. 25.
xvi Ibid., pp. 6 and 7.
xvii Exhibit 3, National Documentation Package for Nigeria (20 August 2019).
xviii Exhibit 8, Disclosure received on December 4, 2019.
xix Exhibit 3, National Documentation Package (20 August 2019), item. 6.7.
xx Ibid., item 2.1.
xxi Ibid., item 6.7.
xxii Ibid., item 6.1.
xxiii Ibid., item 6.1.
xxvi Ibid., item 2.8.
xxvii Ibid., item 6.1.