Categories
All Countries Nigeria

2019 RLLR 2

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


REASONS FOR DECISION

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

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

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

ALLEGATIONS

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

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

DETERMINATION

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

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

ANALYSIS

IDENTITY

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

Claim based on her sexual orientation as a bisexual woman

CREDIBILITY

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

OBJECTIVE BASIS

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

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

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

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

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

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

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

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

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

STATE PROTECTION

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

INTERNAL FLIGHT ALTERNATIVE

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

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

CONCLUSION

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

(signed)           M. BOURASSA

December 23, 2019

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

Categories
All Countries Nigeria

2019 RLLR 1

Citation: 2019 RLLR 1
Tribunal: Refugee Protection Division
Date of Decision: October 28, 2019
Panel: Marcelle Bourassa
Counsel for the claimant(s): Richard Wazana
Country: Nigeria
RPD Number: TB9-04813
Associated RPD Numbers: TB9-04814/TB9-04815/TB9-04816
ATIP Number: A-2020-01124
ATIP Pages: 000001-000013


REASONS FOR DECISION

[1]       [XXX] (“the male claimant”), [XXX] (the “female claimant”) and their children, [XXX] (the “minor claimants”), claim to be citizens of Nigeria and claim refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (“IRPA“).i

[2]       The male claimant was appointed as the Designated Representative for the minor claimants.

[3]       The panel has considered the Chairperson’s Guidelines on Women Refugee claimants Fearing Gender-Related Persecution in assessing the evidence.ii

[4]       The panel also considered written submissions from counsel received on July 15, 2019. The panel provided post-hearing disclosureiii and provided counsel with an opportunity to provide further written submissions by July 29, 2019.

ALLEGATIONS

[5]       The specifics of the claims are in the narrative of the male claimant’s Basis of Claim form (BOC).iv In short, the male claimant fears persecution from then [XXX] and his gang. The male claimant alleges that [XXX] will always be after him as he dared to oppose him for the coveted position of Chairman.

[6]       The male claimant stated that he was elected to the position of [XXX] in [XXX] in Lagos State in 2012.v He alleges that he demonstrated his intention to be elected to the position of Chairman of the Unit in the 2016 elections and that his candidacy was opposed by [XXX] who also wanted the position. The claimant alleges that [XXX] is well connected politically.

[7]       The male claimant alleges that he received threatening phone calls from [XXX] and from other unknown callers. He further alleges that on [XXX], 2016, about one month before the elections, he was attacked by [XXX] and his gang on his way in to work. He managed to escape and fled to [XXX] in Ogun State.

[8]       The male claimant alleges that the shop where his wife sells [XXX] was ransacked by three members of [XXX] gang in order to force him out of hiding. They threatened to kill the male claimant. The female claimant testified that she and the woman who assisted her in her shop managed to escape.

[9]       The male claimant alleges that about three days after the attack on his wife’s shop, he was attacked at the place where he was staying in [XXX]. He was injured in the attack but managed to escape and flee to [XXX] in Ogun State. His wife and children relocated to her mother’s house in [XXX] in Ogun State.

[10]     The male claimant alleges that he moved around until he and the female claimant fled Nigeria on [XXX], 2017 and travelled to the United States, where their daughters joined them. The family travelled to Canada and arrived on [XXX], 2018.

[11]     Since their arrival in Canada, the female claimant has been diagnosed as HIV positive and alleges a well-founded fear of persecution if she were to return to Nigeria as a woman living with HIV.

DETERMINATION

[12]     The panel determines that the male claimant has failed to establish, on a balance of probabilities, a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture in the proposed internal flight alternative (IFA) of Port Harcourt under section 97(1) of IRPA. However, the male claimant has established, on a balance of probabilities, that in the personal circumstances of the family including the two minor claimants, the proposed IFA of Port Harcourt would be objectively unreasonable or unduly harsh.

[13]     Additionally, the panel determines that the female claimant faces a serious possibility of persecution on the basis of her membership in a particular social group as a female living with HIV and that there is no IFA.

ANALYSIS

Identity Is established

[14]     The panel is satisfied that the personal identities and country of reference for all of the claimants have been established, on a balance of probabilities, by the male and female claimants’ testimony, and by their Nigerian passports.vi

Is there a viable IFA in Port Harcourt?

[15]     In order to determine whether a viable IFA exists, the panel must consider a two-prong test.vii The panel must be satisfied that, on a balance of probabilities, there is no serious possibility of persecution in the IFA and/or no risk to life or risk of cruel and unusual treatment or punishment in the part of the country in which it finds 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.

Jurisprudential Guide TB7-19851

[16]     The Chairperson has identified the Refugee Appeal Division (“RAD”) decision for TB7- 19851 as being a jurisprudential guide (the “JG”). This JG addresses internal flight alternatives in major cities in south and central Nigeria for claimants fleeing non-state actors.

[17]     The panel has considered the applicability of the JG that involved a woman fearing her family, with allegations of a forced marriage and female genital mutilation. The panel is not adopting the JG for its factual similarity but for its analysis of similar components to someone in Nigeria fearing non-state actors, being assessed on IFA. As the claimants had been residing in Lagos State, the panel proposed Port Harcourt as an IFA location.

There is no serious possibility of persecution or of s.97 harm in Port Harcourt

[18]     The panel is guided by the analysis in the JG at paragraphs 17 to 19. Most Nigerians fearing non-state actors can safely relocate to another large urban centre. Nigeria is a large country with a population of 203,452,505 covering an area of over 900,000 square kilometres.viii As noted in TB7-19851, there are several very large, multilingual, multiethnic cities in south and central Nigeria, including Port Harcourt (2.343 million), where persons fleeing non-state actors may be able to establish themselves depending on their own particular circumstances.ix

[19]     The male claimant has the burden of providing evidence that the agent of harm has the ability to locate him in the proposed IFA and the panel is not persuaded that he has met his onus.x

[20]     The male claimant alleges that the agent of harm, [XXX], is highly connected within the [XXX] which is a national organization. He alleges that [XXX] will always be after him as he dared to oppose him for the coveted position of Chairman. Once he returns to Nigeria he could easily be found within the union.

[21]     The panel is not persuaded based on a balance of probabilities and the evidence before it that the male claimant needs work as a [XXX] and thereby be located within the [XXX].

[22]     Furthermore, the panel is not persuaded, on a balance of probabilities. as to the continued interest in the claimant by the agent of harm, [XXX], if he were not involved in the [XXX]. When asked by the panel about the outcome of the 2016 election for the position of Chairman of the unit the male claimant explained that he did not trouble himself to find out. This is so even though he testified that he had been in touch with other Unit Chairmen of the [XXX] through his brother.

[23]     Therefore, the panel finds that the male claimant has not established a serious possibility of persecution or, on a balance of probabilities, a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture in the proposed IFA of Port Harcourt.

The proposed IFA is not reasonable

[24]     In considering this IFA, the panel is 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.”xi The Federal Court of Appeal has also been clear that the personal circumstances of a claimant must be central to the reasonableness analysis.xii The question to be answered on the second prong of the test is whether expecting a claimant to relocate to the proposed IFA location would be “unduly harsh.”xiii The panel is also guided by the analysis of the RAD in the above noted jurisprudential guide.

[25]     The claimants are a married couple with two children. In addition, the female claimant has been diagnosed as HIV positive since her arrival in Canada. She submitted a medical reportxiv from Dr. [XXX] in [XXX] that confirms her HIV positive diagnosis.

Transportation, Travel and Language

[26]     The panel must consider the male claimant and his family’s ability to travel safely and stay in the IFA without facing undue hardship. As per the JG, the panel notes that Nigerians have the right to reside in any part of the country and the documentary evidence shows that all main centers are linked by road; in addition, many of the large urban centers boast international airports, which mitigate in favour of viability of the proposed IFA in terms of transit and travel for a given claimant without facing undue hardship. The panel notes that Port Harcourt has an airport.xv The panel finds that travel to Port Harcourt does not render Port Harcourt to be an unreasonable IFA.

[27]     English is the official language in Nigeria, and a large percentage of the population speaks Hausa, Yoruba, Igbo (IBO), and Fulani in the major centres, in addition to over 500 indigenous languages. Fluency in one or more of these languages will mitigate against a finding of unreasonableness due to a language barrier in an IFA where a claimant speaks English or the regional languages of Hausa, Yoruba, Igbo (Ibo) and, or Fulani, as appropriate.

[28]     The male and female claimants provided their testimony through a Yoruba interpreter. The male claimant stated that he understands English and also speaks a little English. The panel notes that both claimants speak Yoruba and that Yoruba is widely spoken across Southern Nigeria including specifically in Port Harcourt.

[29]     The panel finds that language does not render Port Harcourt to be an unreasonable IFA.

Religion and indigeneship

[30]     The male and female claimant identify as Muslim and Yoruba.

[31]     The panel finds for the same reason as in the JGxvi, the factors of religion and indigeneship would not rise to the level necessary to make the proposed IFA unduly harsh or unreasonable.

Education and Employment

[32]     The male claimant stated that he has only worked as a [XXX] except when he worked briefly as a [XXX] person a long time ago.  He does not believe that he could find work [XXX] for a company. He added that people prefer to buy new [XXX] as opposed to [XXX] their old ones. It would not be reasonable to expect him to find other work with a high school education.

[33]     The documentary evidence indicates that there is a high rate of unemployment in Nigeria generally, and that obtaining employment can be difficult. The documentary evidence further indicates that the total years of education completed on average for Nigerian men is 9 years, whereas for women it is 8 years.

[34]     The male claimant has 10 years of completed education which is just above the average for Nigerian men. While the male claimant’s work experience has been mostly as a [XXX], he has done other work, namely as a [XXX] person. He need not work as a [XXX].  He also has some experience at the management level in running the Unit. The panel finds the male claimant would not have be in a worse situation as compared to the average Nigerian man in finding employment had it not been for his wife’s HIV diagnosis.

[35]     The female claimant only has six years of completed education which is below the average for Nigerian woman. The claimant operated a shop while living in Nigeria where she sold [XXX] such as [XXX] and [XXX]. The panel finds that the female claimant’s personal circumstances as a woman living with HIV do not weigh in favour of her being able to find employment as compared to the average Nigerian woman or operate a business selling [XXX].                                                

[36]     The female claimant testified as to the high degree of social stigmatization for persons diagnosed with HIV. So great is her concern, that the only person in her family who knows about her HIV status is her husband.

[37]     The documentary evidence demonstrates that persons living with HIV and AIDS, and women in particular, face pervasive social stigma and discrimination. According to the US Department of State Report,xvii persons with HIV/AIDS, often lost their jobs.

[38]     Other objective documentary evidencexviii also notes that persons living with HIV and their family members (emphasis added) experience stigma and discrimination on a daily basis as a result of their HIV status, by work place colleagues and at the community level. There are also reported cases of social exclusion and discrimination at the community level by mostly women living with HIV and by workers at the work place and reported cases of social and work place unlawful termination, rejection and exclusion.

[39]     Based on the foregoing, the panel finds that neither the male or female claimants are likely to find employment in Port Harcourt and that conditions in the IFA would rise to the level necessary to make the proposed IPA unduly harsh or unreasonable.

Accommodation

[40]     The documentary evidence indicates that rent can be steep in location such as Port Harcourt where the cost of living is high. Given the above-noted documentary evidence that demonstrates that persons living with HIV and their family members experience stigma and discrimination on a daily basis as a result of their HIV status, the panel finds that the male claimant and his family are not likely to be able to secure accommodation in Port Harcourt. The panel finds that conditions in the IFA rise to the level to make Port Harcourt objectively unreasonable or unduly harsh.

Availability of medical and mental health care and education

[41]     The female claimant submitted a medical reportxix from her doctor that indicates she is currently maintained on [XXX], 1 tablet daily and [XXX] and is stable. Her HIV viral load is undetectable.’

[42]     The female claimant stated that she has days when she feels fine and other days when she does not. She is well treated by her doctor and nurse in Canada and has access to anti-retroviral medication. She testified that she can lead a normal life in Canada even though she is HIV positive.

[43]     In addition to her above concerns about stigmatization and discrimination of persons living with HIV, she is concerned about accessing medical services and what will happen if she stops taking her anti-retroviral medication.

[44]     The documentary evidencexx indicates that anti-retroviral treatment is provided free of charge to eligible patients. However, there are recurring drug shortages of anti-retrovirals and that facilities that administer anti-retrovirals to patients experience stock-outs.

[45]     It is also noted that just 33 per cent of all people living with HIV were receiving anti­ retroviral treatment in 2017. It was also noted that weaknesses in the health system exist and create a barrier to people accessing or staying on treatment.xxi

[46]     The objective documentary evidencexxii also notes that persons living with HIV and their family members (emphasis added) experience stigma and discrimination on a daily basis as a result of their HIV status by caregivers at health centres.

[47]     Based on the foregoing, the panel finds that conditions in the IFA would rise to the level necessary to make the proposed IFA unduly harsh or unreasonable.

[48]     In consideration of all of the above circumstances, the panel finds, on a balance of probabilities, that the male claimant has shown that in the personal circumstances of the family, including the two minor claimants, the proposed IFA of Port Harcourt would be objectively unreasonable or unduly harsh.

There is a serious possibility of persecution for the female claimant because of her HIV positive diagnosis

[49]     The panel also finds that female claimant’s personal circumstances and vulnerabilities as a woman living with HIV when viewed in light of the objective documentary evidence as referred to above are such that she could be subject to discrimination that could amount to persecution cumulatively should she return to Nigeria. The documentary evidence as referred to above notes that discrimination against persons living with HIV pervades all aspects of life, including healthcare and employment that cumulatively could lead to an insecure life for the female claimant and rise past the level of discrimination to persecution.

[50]     Therefore, the panel finds that there is more than a mere possibility that the female claimant could face a well-founded fear of persecution based on her membership in a particular social group as a woman living with HIV.

[51]     Furthermore, the panel finds that state protection would not reasonably be forthcoming in her case on a balance of probabilities. The documentary evidence indicates that Nigeria is taking some steps to protect persons living with HIV and AIDS. For example, the United States Department of State Report, at item 2.1 in the NDP,xxiii reports that authorities and NGOs sought to reduce the stigma and change perceptions through public education campaigns.

[52]     A national anti-discrimination law came into place in 2014.xxiv However, this has not yet translated down to the community level. As noted by one source, most Nigerians living with HIV still nurture the fear of the unknown, and therefore hardly report incidents of discrimination and violence against them.xxv The few that report have their incident cases first filed at the community level through their support group to the police station, and most times through the National Human Rights Commission (“NHRC”).  Most of those cases filed at the first level of the NHRC do not see the light of day because of fear of publicity and breach of confidentiality.xxvi

[53]     Most of the people living with HIV/AIDS whose rights were violated do not recognize their fundamental human rights or know where to report the cases and/or document such cases, while the few who are knowledgeable about their rights could not get justice due to the high level of stigma and ignorance at the judiciary and legal system of Nigeria.xxvii

[54]     Based on the female claimant’s personal circumstances and vulnerabilities as a woman living with HIV, as well as the documentary evidence, the panel finds on balance of probabilities that the female claimant has rebutted the presumption of state protection. Adequate state protection would not reasonably be forthcoming to the female claimant.

[55]     Furthermore, the panel finds that there is no IFA for the female claimant based on her personal circumstances and vulnerabilities as a woman living with HIV, given that there is a serious possibility of persecution throughout Nigeria.

CONCLUSION

[56]     The panel finds that the male claimant has failed to establish, on a balance of probabilities, a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture in the proposed IFA of Port Harcourt under section 97(1) of IRPA. However, the male claimant has discharged the burden to show, on a balance of probabilities, that in their personal circumstances, the proposed IFA of Port Harcourt would be objectively unreasonable or unduly harsh for all of the claimants as a family. Additionally, the panel finds that the female claimant faces a serious possibility of persecution throughout Nigeria on the basis of her membership in a particular social group as a female living with HIV and that there is no IFA

[57]     The panel accordingly accepts each claim.

(signed)           M. BOURASSA

October 28, 2019

i Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1).
ii Guideline issued by the Chairperson pursuant to section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act.
iiiiii Exhibit 8, Post-hearing evidence disclosed on July 18, 2019.
iv Exhibit 2.1.
v Exhibit 5, Disclosure received on June 28, 2019.
vi Exhibit 1, Package of information from the referring CBSA/IRCC.
vii 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 p. 710.
viii Exhibit 3, National Documentation Package for Nigeria (30 April, 2019), item 1.6.
ix TB7-19851, para 19.
x Ekechukwu v. Canada (Citizenship and Immigration), 2016 FC 1142 (Can LII), at para. 38.,
xi Ranganathan v. Canada (MCI), 2000 CanLII 16789, at para. 14.
xii Rasaratnam v. Canada (MEI), [1992] 1 FC 706, at p. 710.
xiii Thirunavukkarasu v. Canada (MEI), 1993 CanLII 3011.
xiv Exhibit 5, Disclosure received on June 28, 2019.
xv Exhibit 3, National Documentation Package, item 1.1.
xvi TB7-19851, paras 28, 45 and 46.<
xvii Exhibit 3, National Documentation Package, item 2.1.
xviii Exhibit 8, Post-hearing evidence disclosed on July 18, 2019.
xix Exhibit 5, Disclosure received on June 28, 2019.
xx Exhibit 8, Post-hearing evidence disclosed on July 18, 2019.
xxi Ibid.
xxii Ibid.
xxiii Exhibit 3, National Documentation Package for Nigeria (30 April 2019), item 2.1.
xxiv Exhibit 3, National Documentation Package, 30 April 2019, Items 2.2 and 2.6
xxv Exhibit 8, Post-hearing evidence disclosed on July 18, 2019.
xxvi Ibid.
xxvii Ibid.