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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.

Categories
All Countries Nigeria

2019 RLLR 150

Citation: 2019 RLLR 150
Tribunal: Refugee Protection Division
Date of Decision: May 28, 2019
Panel: Joshua Prowse
Counsel for the Claimant(s):
Country: Nigeria
RPD Number: VB8-01902
Associated RPD Number(s):
ATIP Number: A-2022-00210
ATIP Pages: 000156-000163

— PROCEEDINGS COMMENCED

[1]       PRESIDING MEMBER: This is the decision in the claim for refugee protection made in File VB8-01902. That is the claim of XXXX XXXX XXXX and her two children.

ALLEGATIONS

[2]       The specifics of this case are stated in the narrative of your Basis of Claim form. In short you state that you left Nigeria because of history of domestic violence that you faced as well as risk of female genital mutilation or FGM for the minor Claimant who is part of this proceeding.

[3]       In assessing this case, I considered the following Chairperson’s guidelines. Guideline 3 on child refugee claimants. Guideline 4 on women refugee claimants.

DETERMINATION

[4]       I find that you are Convention refugees.

IDENTITY

[5]       Your personal identity and your identities as a citizen of Nigeria are established by your testimony and the supporting documentation filed, principally copies of your passports which are on file at Exhibit 1.

OBJECTIVE EVIDENCE ABOUT COUNTRY CONDITIONS

[6]       I will start assessing your allegations that you face a serious possibility of persecution in Nigeria by examining the context of the country conditions relevant to your situation. There are a number of documents about female genital mutilation, it’s prevalence in Nigeria and the state response to it. I note the Response to Information Request that is on file entitled Prevalence of female genital mutilation among the Urhobo including consequences for refusing to undergo this procedure, particular pregnant women. State protection available. And that document which makes a number of general comments and reviews evidence about the response to FGM including in Lagos area. And it states that FGM is still deeply entrenched in the Nigerian society. It describes it as widespread and rampant and it notes that according to one source 41 percent of adult women in Nigeria have undergone some form of FGM and that FGM is more prevalent in the southern states of Nigeria.

[7]       A question also arises, and I’ll touch on this a little bit later but partly now, about the extent of the legislation and state response involving FGM. There’s a document on file at 5.32 of the National Documentation Package from the United Nations Children’s Fund, UNICEF entitled Country Profile FGM in Nigeria, October 2016. It’s also from an organization 28 Too Many which is an anti-FGM advocacy organization. And it notes at page 3 of that document that more than 20 million women and girls have been cut or are at risk of being cut and it discusses the nature of the legislation relating to FGM in Nigeria. At page 52 of that document it notes that while there is federal legislation, which is referred to by it’ s acronym the VAPP, V-A-P-P. That is a federal law and therefore it’s only effective in the federal territory of Abuja and that while each individual state in this case, Lagos, where the Claimants’ were last residing have passed legislation. Though the nature of that legislation varies and in some states there isn’t specific legislation related to FGM. In Lagos there is but there are reportedly significant problems with it’s enforcement.

[8]       The US Department of State reports that police often refuse to protect women when “the level of alleged abuse did not exceed customary norms in the area.” And that generally speaking effective enforcement of such laws has been wanting.

[9]       There’s a second aspect to this claim which involves violence, domestic violence being inflicted upon the Principal Claimant and her son and this something that has been ongoing and has reportedly affected them for a number of years. We have information on file in the National Documentation Package about the prevalence of domestic violence and recourse and options available to those who experience it.        For example there’s a Response to Information request entitled Nigeria – Domestic Violence including Lagos state legislation recourse, state protection and services available to victims. And it discusses the fact that domestic violence as in, perhaps both countries, is quite prevalent but it also discusses a situation in which the state response available for those who experience domestic violence is quite limited. That there are very few services such as shelters available in the country and it describes the situation in which authorities such as the police and the courts are generally unaware of many key laws that are on the books but effectively unenforced.

[10]     Given this evidence, I conclude that there is an objective basis to the allegations before me. The risk that has been described is consistent with information on file about the treatment of others in Nigeria.

DO YOU FACE A SERIOUS POSSIBILITY OF PERSECUTION?

[11]     A claimant has the burden to induce evidence which shows they face a serious possibility of future persecution. This must be credible and believable evidence. Given my conclusion about the general country conditions, the questions for me to assess in order to determine these Claimants individual risks were first is it credible that they, in particularly the Principal Claimant have been subjected to domestic violence while they have been in Nigeria. And secondly is there a forward looking risk of circumcision for the female minor Claimant and violence attendant to that circumcision for the other Claimants should they refuse to partake in the procedure.  And in general when assessing these issues I will say that I found the Claimants to be credible witnesses and I therefore believe what they have alleged in support of their claims.

[12]     In assessing credibility in a refugee claim we start from the presumption that claimants and their allegations are credible. This presumption reflects the fact that claimants are providing sworn testimony and that circumstances facing fleeing refugees can compromise their ability to present corroborative evidence. In assessing whether a claimant’s statements are believable we consider whether the facts presented are detailed, plausible and consistent.

[13]     These criteria are met in this case as the Claimants relayed their testimony convincingly both in writing and orally.  And as I’ve stated their allegations are also consistent with information on file about country conditions.

[14]     I asked some specific questions turning first to the allegations about domestic violence. Their testimony was consistent about this. The Principal Claimant’s son testified about what he has observed and what he fears in this respect. There’s corroborating documents on file including from a friend of the Principal Claimant who corroborates the statements about the domestic violence that this family has been subjected to over a significant period of time at the hands of Principal Claimant’s ex-spouse.

[15]     And the Claimants state that they ran away from this ex-spouse about a year before leaving Nigeria and then coming to North America. I asked a number of questions about this. The Claimants continued their schooling over this period. How were they able to afford this sort of schooling? How were they able to afford visa applications? How were they able to afford international travel including to Benin then the United States during this period. And all of the Claimants’ answers on in terms of those types of questions were satisfactory, in my view.       The Claimants received financial aid from a comparatively wealthy friend of the Principal Claimant who the Principal Claimant has known since she was a very young girl. This friend took the Principal Claimant and her children in. Supported them and facilitated their exit from the country. The minor Claimants did not need to pay for schooling at this time as they were attending a state school and in fact they switched what school, for instance the male child was in around the time of their move away from the ex-partner’s home and towards Lagos and they are completely consistent between their testimony and the other documents on file in this respect.

[16]     The male Claimant says he last saw his father in 2015 and that the family went to the United States because his dad wanted to circumcise his younger sister. Which takes me to the second question that I considered in terms of the credibility of specific allegations. That’s the risk of circumcision for the minor Claimant in these proceedings. I have the Claimant’s sworn and consistent testimony in this respect that the agent of persecution inflicted and arranged to inflict FGM on another one of the Principal Claimant’s children. That child died from the procedure. I have corroborating documents related to that death. Including a medical report which describes it in detail. And further more this is a claim in which I have a number of corroborating documents related to the ongoing risk to these Claimants and the way that the principal agent of persecution has pursued them and in their absence from Nigeria has pursued the Principal Claimant’s friend who was instrumental in facilitating their exit from the country. I have a medial report at Exhibit 5 regarding injuries that this friend suffered as recently as last month as a result of thugs that the agent of persecution hired to pursue her and attempt to obtain information about the Claimants whereabouts. I have a police report that this individual filed about the fact that she was pursued by these thugs which names the principal agent of persecution in the police report. I have a detailed Basis of Claim amendment which includes corrections and was updated to reflect recent circumstances and I also have a number of statements on file including an affidavit from the Principal Claimant’s friend, XXXX (ph.). And I have bank statements, psychotherapist’s letter and a sworn declaration.

[17]     In sum I accept that these Claimants face a violence at the hands of the Principal Claimant’s ex-partner who is seeking to inflict FGM on the minor Claimant and who has generally been abusive towards both the Principal Claimant and the children of their relationship and is not content to see these individuals move on from the relationship. Given the past persecution, the persecution of those similarly situated to them, I conclude that there is a serious possibility of these Claimants being persecuted should they return to Nigeria.

DOES THE HARM THAT YOU FACE UPON TO NIGERIA AMOUNT TO PERSECUTION?

[18]     The harm that a refugee fears must be persecution. And our refugee law, persecution can be considered the sustained or systemic violation of basic human rights. The circumstances that you face implicate in a sustained or systemic manner a number of such rights. This includes the right to life which is illustrated by the fact that one of the Principal Claimant’s children already died when FGM was inflicted upon her. This is protected in Article 6 of the Internal Covenant on Civil and Political Rights which provides that every human being has the inherent right to life. This is also relates the freedom from domestic violence and gender based violence is a form of discrimination that seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men. And this is discrimination within the meaning of the Convention on the elimination of all forms of discrimination against women.

[19]     A situation involving such rights violations will be persecutory if it has substantially prejudicial effects for persons concerned.  And it’s clear that that is the case here. The Claimants write eloquently in their narrative at paragraph 48 in that “I am afraid to return to Nigeria because I know my partner and his family are still looking for me and may children. I know that if XXXX (ph.) found us he would harm or mistreat us and force my daughter to be circumcised. For these reasons I seek protection in Canada.

[20]     Given these statements that the Claimants fear returning to Nigeria and their description of the harm that they have experienced and have anticipated upon return, I find that they subjectively fear returning to Nigeria and I conclude that the harm that they fear about is persecution.

[21]     When reaching this conclusion I did consider the fact that they spent some time in the United States prior to claiming in Canada. In fact they spent a significant amount of time there and ultimately stayed beyond the expiry of and validity period for their US visa. I don’t find that I should draw a negative inference about the credibility of the Claimants’ subjective fears of persecution in Nigeria, at that point, for several reasons. First two of the Claimants are quite young at that time. A minor Claimant and another who just reached the age of majority of that period and then for the Principal Claimant she’s quite a vulnerable individual. She does — she’s functionally illiterate, has no history of schooling in Nigeria. Was dependant upon others for advice and was deterred from claiming apparently for financial reasons. I find that in the circumstances the Claimants have amply and reasonably explained their failure to claim refugee protection in United States at the time that they did.

ARE YOUR FEARS BY REASON OF ONE OR MORE OF THE GROUNDS IN THE REFUGEE CONVENTION?

[22]     In order to qualify for refugee status under the Refugee Convention, an individual must demonstrate that they have a well-founded fear of persecution “for reasons of race, religion, nationality, membership in a particular social group or political opinion.”

[23]     I conclude that this requirement is met in your cases as your fears of persecution in Nigeria relate to the Convention grounds first of particular social group related to the particular social group of women. And second for the male Claimant the particular social group of the family. It’s clear that the domestic violence that the Principal Claimant has experienced and the female genital mutilation that the minor Claimant stands to experience, is something that is disproportionally inflicted upon women and also it is something where the state response is disproportionally anemic because of the gender of the victims of those practices.

STATE PROTECTION

[24]     The refugee definition specifically requires that each refugee establish that they are “unable or by reason of their fear, unwilling to unveil themselves of the protection of their country.” It is the duty of all states to offer protection to their nationals. Refugee protection only becomes available when a claimant’s country of nationality fails in the performance of this duty. These Claimant’s have evidence which demonstrates that this requirement is met in their cases as they are unable to avail themselves of the protection of their country.

[25]     And I have a number of documents about this. But with respect to the enforcement of anti- FGM legislation in Nigeria the Response to Information that I quoted earlier on the prevalence of female genital mutilation among the Urhobo states that — has a bunch of more general statements about FGM, starting at page 6 of that report. It states that no cases of legal prosecution of people who have been subjected to girls or women to FGM have been documented in Nigeria.   And that even in Nigerian states that have legal provisions in place to prosecute the perpetrators of FGM either under general or specific criminal laws, prosecutions are very rare.

[26]     Counsel provided a summary of some of the country conditions with respect to state protection in his submissions. He noted that the UK Home Office report at 1.7 of the National Documentation Package indicates that the effectiveness of state protection is undermine by a lack of resources, by corruption and that women face pervasive discrimination in attempting to access such state protection and that the bribery rate for police among those who wish to access police protection is nearly 50 percent. And I find that this is particular relevant given that fact that this agent of persecution is connected to politicians in the country.

[27]     In short there is clear and convincing evidence before me that Nigeria will not afford these Claimants the protection we expect of a state and that they are consequently unable to obtain adequate protection from their country.

INTERNAL FLIGHT ALTERNATIVE

[28]     When considering whether you have an internal flight alternative we ask whether there is a part of your country in which you would not face a serious possibility of persecution and whether it would be reasonable to expect you to move there. I conclude that you do not possess a viable internal flight alternatives in your country.

[29]     This is for several reasons. In terms of the Principal Claimant, in my view, there are evident issues related to the reasonableness of any internal flight alternative. She is illiterate, uneducated, single women with children without any work experience outside of the home. However this is tempered by the fact that she would be relocated with her adult child who is in his early XXXX XXXX male child with above average education in Nigeria and in my view the analysis of the reasonableness of any relocation would be complicated by that fact. However it’ s not necessary for me to consider the reasonableness of relocation in this case because I find the viability of an internal flight alternative fails on the first prong of the analysis. The internal flight alternative location identified in this case, Port Harcourt, is one where there would remain a serious possibility of persecution for these Claimants by reason of the fact that the agent of persecution would be able to track them down and locate them in Port Harcourt through the Claimant’s friend who resides in Lagos.

[30]     The Federal Court jurisprudence is clear that this Board cannot expect an individual to have to make a secret return to their country or a return where they are excluded from their support groups, from their friends, for their family members. Counsel directed me to the case of Ohakam 2011 FC1351 and I find that the principal coming out of that case is directly applicable to the circumstances before me. The Principal Claimant’s best friend, one who she is in frequent contact with, is located in Lagos while this friend has not divulged information about the Claimants’ whereabouts to date, it cannot be expected that this friend would be able to refrain from doing so indefinitely. Especially in light of the evidence before me that the agent of persecution has engaged in an ongoing campaign of harassment, threats and the hiring of thugs to intimidate her in order to obtain such information. As these Claimants would not be able to escape a serious possibility of mistreatment by internal relocation, I conclude that they do not possess a viable internal flight alternative in Nigeria.

CONCLUSION

[31]     In conclusion I find that the Claimants are Convention refugees and I accept their claims. That concludes today’s hearing. We are now off the record.

—PROCEEDINGS CONCLUDED

Categories
All Countries Nigeria

2020 RLLR 146

Citation: 2020 RLLR 146
Tribunal: Refugee Protection Division
Date of Decision: November 2, 2020
Panel: Zonia M. Tock
Counsel for the Claimant(s): Gabriel Ukueku
Country: Nigeria
RPD Number: VC0-01443
Associated RPD Number(s):
ATIP Number: A-2021-01106
ATIP Pages: 000184-000189

REASONS FOR DECISION

[1]       This is the decision of the Refugee Protection Division (RPD) concerning [XXX] (the “claimant”) who is a citizen of Nigeria and is making a claim for refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (the “Act“).[1]

DETERMINATION

[2]       I find that the claimant is a Convention refugee pursuant to section 96 of the Act, for the following reasons.

ALLEGATIONS

[3]       I will briefly summarize the claimants’ allegations, which are found in his Basis of Claim (BOC) form[2]. The claimant is a member of the Indigenous People of Biafra (IPOB), which is a group striving for the independence of Biafra. The claimant considers himself a freedom fighter as he has not only become a member of IPOB but has risen in its ranks to become a member of the [XXX] team. As such, he was responsible for [XXX] about the group and its activities, as well as mobilizing Biafrans to join peaceful rallies.

[4]       In 2018, the claimant’s father was killed by Nigerian military officers after they raided his home trying to arrest the claimant. The claimant’s father tried to prevent the claimant’s arrest, which resulted in his death. Soon thereafter, the claimant travelled to Canada for a conference. While in Canada, the claimant’s nephew was killed by the Nigerian authorities. As a result, the claimant remained in Canada for seven months. However, he did not make a claim for protection because his wife and children were still in Nigeria and he wanted to ensure they were safe. In [XXX] 2019, the claimant was advised that the situation was improving, thus he returned to Nigeria.

[5]       However, in [XXX] 2019, an IPOB member alerted the claimant that the Nigerian military were on their way to his house. This allowed the claimant and his family to flee the area. The claimant’s wife and children escaped to Cameroon while the claimant travelled to Canada and made a claim for protection. While in Canada, the claimant has become part of the IPOB Calgary League and continues to support the cause.

Identity

[6]       The claimant’s identity as a national of Nigeria is stablished by the sworn statement in his BOC form and the certified copy of his Nigerian passport[3] before me.

Nexus

[7]       The claimant alleges that he will be persecuted by the Nigerian government due to his membership in IPOB. I find there is a nexus between this allegation and the Convention ground of political opinion. As such, I have considered this claim under both sections 96 and 97(1) of the Act.

Credibility

[8]       There is a presumption that sworn testimony is true unless there is sufficient reason to doubt its truthfulness. In this case, I found the claimant to be a credible witness. His testimony was heartfelt and passionate. The claimant became emotional when asked to explain why he chose to join IPOB. He testified that his parents had taught him about the injustices committed against the Biafran population during the 50s and 60s, and he also observed the continued targeting of Biafrans by the Nigerian government. The claimant testified that the Biafran community did not want to be part of Nigeria because of the way the country is being managed and because of the injustices committed against the Biafran people.

[9]       The claimant was also able to credibly explain what appeared to be inconsistencies in the evidence before me. For example, the claimant was asked why he did not make a claim for protection during the [XXX] 2018 to [XXX] 2019 period that he was in Canada. The claimant’ s father had been murdered prior to his travels to Canada and his nephew had also been murdered while the claimant was in Canada, thus it would be reasonable to expect that the claimant would make a claim for protection at that time. However, the claimant explained that during that trip, his wife and children were still in Nigeria. His top priority is their safety, thus he had to ensure he could travel back to keep them safe. I find this explanation to be credible given that once the claimant was able to secure his family’s safety in Cameroon, he made a claim for protection.

[10]     I also questioned the claimant regarding a newspaper article in evidence which indicates that the claimant and his wife were missing after a raid by the military.[4] The article is dated November 2019; however, the military raid which led to the claimant leaving Nigeria took place in [XXX] 2019. The claimant explained that there was a second raid of his home, where his belongings were destroyed by the military. This second raid took place in [XXX] 2019, and that is the one being referenced in the article. I find this explanation to be credible as the claimant mentioned a second raid of his home in his BOC form.

[11]     I have also considered the documentary evidence before me, including evidence of the claimant’s membership in IPOB Calgary,[5] his membership in IPOB in Nigeria,[6] and the continued targeting of IPOB members in Nigeria.[7]

[12]     Based on the totality of the evidence before me, I accept the claimants’ allegations as credible.

Country Conditions

[13]     I have reviewed the National Documentation Package (NDP)[8] before me and I find that Country condition information before me establishes that the claimant has a well-founded fear of persecution in Nigeria.

[14]     The evidence before me is that IPOB is a separatist organization considered to be a secessionist group which argues that the people of Biafra have been politically, socio­economically and culturally marginalized in Nigeria.[9]

[15]     There are reports of extrajudicial executions, use of excessive force by military, arbitrary arrests and detentions, torture and evidence of peaceful gatherings being dispersed by the firing of live ammunition with little or no warning.[10]

[16]     The President’s stance on Biafran independence is described as dismissive at best, and at times hostile.[11] However, in 2017, the Nigerian military designated the IPOB as a terrorist organization; a label which has been rejected by international observers.[12] A Response to Information Request (RIR) before me indicates that following that designation, IPOB members have been targeted:

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.”

The Anambra Police Commissioner, quoted by the Punch, a Nigerian news publication, 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.

Since August 2015, the security forces have killed at least 150 members and supporters of the pro-Biafran organization IPOB (Indigenous People of Biafra) and injured hundreds during non-violent meetings, marches and other gatherings. Hundreds were also arbitrarily arrested.[13]

[17]     Considering that the Nigerian government has labeled the IPOB as a terrorist organization and that they continue to target members of the IPOB, I find that there is more than a mere possibility that the claimant would be persecuted if he returns to Nigeria.

State Protection and Internal Flight Alternative

[18]     In this case, the agent of harm is the government. The authorities are targeting members of IPOB and have labeled them a terrorist organization. As such, it would not be reasonable to expect the claimant to turn to the state for protection.

[19]     In terms of an internal flight alternative (IFA), the government of Nigeria is in control of the entire state. Its persecutory declaration is in place in the entire territory; thus it would not be feasible for the claimant to move elsewhere in Nigeria and be safe. As such, I do not find that an IFA exists in this case.

CONCLUSION

[20]     For the reasons outlined above, I find the claimant is a Convention refugee. As such, his claim is accepted.


[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.

[2] Exhibit 2.

[3] Exhibit 1.

[4] Exhibit 4.

[5] Exhibit 4.

[6] Exhibit 7.

[7] Exhibits 4 and 5.

[8] Exhibit 3, National Documentation Package (NDP), Nigeria, July 31, 2020.

[9] Exhibit 3, NDP, Item 13.2 Response to Information Request (RIR) NGA105658.E.

[10] Exhibit 3, NDP, Item 13.2 RIR NGA105658.E.

[11] Exhibit 3, NDP, Item 13.2 RIR NGA105658.E.

[12] Exhibit 3, NDP, Item 13.5 RIR NGA106308.E.

[13] Exhibit 3, NDP, Item 13.5 RIR NGA106308.E.

Categories
All Countries Nigeria

2020 RLLR 125

Citation: 2020 RLLR 125
Tribunal: Refugee Protection Division
Date of Decision: February 11, 2020
Panel: S. Williams
Counsel for the Claimant(s): A. Akinyemi
Country: Nigeria
RPD Number: TB8-15998
Associated RPD Number(s):
ATIP Number: A-2021-01106
ATIP Pages: 000048-000056

REASONS FOR DECISION

INTRODUCTION

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

[2]       In rendering these reasons, the panel has considered and applied the Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution,[2] and applied the Chairperson’s Guidelines on Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.[3]

ALLEGATIONS

[3]       The claimant alleges that she faces persecution at the hands of Nigerian authorities and members of Nigerian society on account of her sexual orientation as a lesbian. The claimant also alleged that she faces a risk of forced female genital mutilation (FGM) at the hands of her paternal relatives.

[4]       While the claimant has identified a fear of FGM, the panel finds that the determinative issue in this claim is the claimant’s sexual orientation. Therefore, the reasons for this decision are centered on findings about the claimant’s profile as a lesbian. The panel will not render findings surrounding the claimant’s fear of FGM.

DETERMINATION

[5]       The panel finds that the claimant is a Convention refugee as she has established a serious possibility of persecution on account of her membership in a particular social group, as a lesbian woman.

ANALYSIS

Identity

[6]       The panel finds that the claimant’s identity as a national of Nigeria is established by the claimant’s oral testimony and documents filed in evidence, including the claimant’s Nigerian Birth Certificate.[4]

Credibility

[7]       The panel finds the claimant to be a credible witness and therefore accepts what the claimant has alleged in support of her claim. When a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness.[5] The claimant testified in a straightforward manner and, there were no relevant inconsistencies in the claimant’s testimony or contradictions between testimony and the other evidence before the panel which have not been satisfactorily explained.

[8]       The claimant testified that while she was in Nigeria she came to realise her sexual orientation, that she is a lesbian, at the age of 10 or 11 years old. She stated that she initially thought something was wrong with her because all of her friends would talk about boys, yet she would think about girls. The claimant testified about the challenges she faced in Nigeria, stating that she would often try to hide herself and stay away from people that she found attractive. The claimant testified that her parents hold strong religious values and she was aware that her sexual orientation would not be accepted in her community.

[9]       The claimant stated that she eventually confided in her mother about her sexual orientation. However, at that time, the more pressing matter that was concerning the claimant’s mother was fear of forced FGM of the claimant. The claimant stated that her paternal grandmother comes from a line of traditional worshipers who carry out female genital mutilation. The claimant alleged that her paternal relatives attempted to force her to undergo FGM, with the intention of subjecting the claimant to the FGM procedure in [XXX] 2015. The claimant alleged that her mother arranged for her to flee Nigeria on [XXX] 2015 at the age [XXX] years old in order to avoid forced FGM.

[10]     The claimant moved to the United States where she resided, without legal status, in the care of her mother’s cousin, Ms. E. The claimant alleged that while in United States, she became involved in a romantic relationship with a same sex partner in [XXX] 2015. The claimant testified that she was confronted by Ms. E on [XXX] 2018, regarding the nature of her relationship with her female friend from school, at which time the claimant admitted that she was involved in a same sex relationship with this female. The claimant alleged that Ms. E became upset about her sexual orientation and told the claimant to leave her home immediately. The claimant then fled to Canada where she had family friends. The claimant arrived in Canada on [XXX] 2018.

[11]     The claimant stated that her relatives in Nigeria have become aware of her sexual orientation and her father has disowned her. The claimant stated that members of her family and community in Nigeria have vowed to kill her for bringing shame to the family name.

Failure to Claim Asylum Does Not Undermine the Claimant’s Subjective Fear

[12]     The claimant testified that she resided in United States between the period of [XXX] 2015 to [XXX] 2018 and did not claim asylum. The claimant testified that the reason she did not claim asylum upon arrival in United States is because she did not know anything about asylum. She stated that as she became older, she realized she did not have legal status in United States however she was unaware that she could speak with a lawyer to apply for legal status. The claimant testified that she never tried to claim asylum because she did not know how to do so. The claimant testified that she also experienced fear that she may not be granted legal status in the United States. She stated that these fears stemmed from her understanding of the president of the United States administrative views on immigrants at the time.

[13]     The panel has assessed whether the claimant’s failure to claim asylum in United States immediately upon entry to United States undermines the claimant’s subjective fear. Considering the claimant’s personal circumstances, including the fact that she was [XXX] years old upon arrival in united states, traveled to united states on her own, had limited education, and was allegedly fleeing a risk of gender-based violence, the panel finds that the claimant’s explanation for not claiming asylum upon entry to United States is reasonable. The panel has considered whether the claimant’s failure to claim asylum in United States when she became older undermines the claimant’s subjective fear. The claimant was born [XXX] and turned [XXX] years old in July 2018. The claimant entered Canada on [XXX] 2018. Therefore, the claimant was a minor during the entire time spent residing in United States. Considering the claimant’ s age, level of maturity, lack of parental accompaniment, and limited knowledge of the United State’s asylum claim system, the panel finds that the claimant’s explanation for failure to claim asylum, after spending approximately two and a half years in United States, is satisfactory. Therefore, the panel finds that the claimant’s failure to claim asylum in United States does not undermine the claimant’s subjective fear.

Status in United States

[14]     The claimant testified that she entered the United States illegally by use of travel documents belonging to her cousin, who is a citizen of United States. The claimant testified that she does not have any form of legal status in United States and has never applied for legal status in United States. RPD search results revealed no history of Temporary Visa Application attached to the claimant’s name. Fingerprints of the claimant submitted to the US Department of Homeland Security database resulted in a result of ‘no match’. In light of the evidence before the panel, the panel finds on a balance of probabilities that the claimant does not have legal status in United States.

Documentary Evidence

[15]     The claimant was asked whether she has any documentary evidence to demonstrate communications with her former same sex partner who she dated in United States. The claimant testified that she does not have any evidence of communications as she deleted the messages. The claimant testified that the reason she deleted all messages between herself and her former partner was due to the fact that she tried to be as discreet as possible. The claimant stated that her family members openly expressed disgust for any form of homosexual activity. The claimant testified that she kept her same sex relationship a secret from her relatives in United States. The panel finds the claimant’s explanation for a lack of documentary evidence to be reasonable. Considering that the claimant was residing in a familial environment that was discriminatory towards lesbian and gay individuals, the panel finds that it is reasonable that the claimant would delete evidence of communications between herself and her same sex partner.

[16]     The clamant provided support letters from her mother and cousin, including photo identification of each.[6] The letters corroborate the information provided in the claimant’s claim.

LGBTQ+ Services and Experience in Canada

[17]     The claimant testified that she is not aware of any LGBTQ+ organizations in Canada. She stated that she has never considered attending any type of LGBTQ+ services as she is not used to engaging in such programs. The claimant declared that she wants to be open about her sexuality in Canada however she finds it challenging to be completely open about her sexuality after having to be secretive about her sexual orientation for her entire life. The claimant testified that she does not use any social media apps to meet people in Canada. The claimant testified that she was involved in two same sex relationships during her adolescence and at this time she is single and not interested in entering a relationship at this time.

[18]     The panel finds the claimant to be a credible witness and accepts that the above noted events have occurred as alleged by the claimant in her oral and written testimonies. Accordingly, the panel finds that the claimant has established on a balance of probabilities that she is a lesbian woman.

Objective Basis

[19]     The panel has assessed the objective basis for the claimant’s fear of persecution in Nigeria. In making the assessment, the panel must consider the claimant’s personal circumstances and vulnerabilities, and in this regard, the panel refers to the UNHCR Handbook. Guidance from the UNHCR Handbook on Determining Refugee Status, and Canadian jurisprudence, indicates that discrimination can amount to persecution cumulatively when the following conditions are met. First, there must be a number of discriminatory acts which take place in a general atmosphere of insecurity in the country of origin. The discriminatory acts must be of such a nature that they are substantially prejudicial to the person concerned. Where the cumulative nature of discrimination results in an insecure future for the person concerned, this constitutes persecution.

[20]     The documentary evidence clearly states that same sex relationships are criminalized in Nigeria. The Same Sex Marriage (Prohibition) Act enacted in January 2014, effectively renders illegal all forms of activity supporting or promoting LGBTIQ rights.[7] Federal legislation prohibits a marriage contract or civil union entered into between persons of the same sex and provides penalties for the solemnisation and witnessing of same thereof.[8] A person who enters into a same sex marriage or union is liable on conviction to a term of 14 years imprisonment. Furthermore, a person who witnesses or is involved in any form of organization, club, society, or meetings surrounding same sex relationships is liable on conviction to a term of 10 years of imprisonment.

[21]     The objective evidence addresses the social stigma surrounding same sex relationships in Nigeria. Sources indicate that any sexual orientation that is not heterosexual is considered to be unnatural, demonic, and immoral in Nigeria.[9] Sources indicate that many LGBT individuals enter heterosexual relationships to “cover” for same-sex relationships. Bisexual individuals may marry members of the opposite sex due to societal pressures to marry and have children as well, and due to homophobic persecution, stigma, and in order to avoid suspicion of having a non-heterosexual orientation.[10]

[22]     In summary, the objective country condition evidence supports a conclusion that there is a clear objective basis for the claimant’ s fear of persecution on account of her sexual orientation as a lesbian. Accordingly, the panel finds that the claimant has a well-founded fear of persecution.

STATE PROTECTION

[23]     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.[11]

[24]     In this case, the claimant fears persecution at the hands of Nigerian authorities and the Nigerian community because of the fact that individuals involved in same-sex relationship are criminalized and ostracized in Nigeria. As the state is the agent of persecution, the panel finds that it would be objectively unreasonable for the claimant to seek the protection of the state in light of the claimant’s particular circumstances.

INTERNAL FLIGHT ALTERNATIVE

[25]     The panel has considered whether a viable internal flight alternative exists for the claimant in Nigeria. On the evidence before the panel, the panel finds that there is a serious possibility of persecution throughout Nigeria. The Federal laws of Nigeria enforce the criminalization of same sex relationships, and are applicable throughout the country. Therefore, the test fails on the first prong, and a viable internal flight alternative does not exist for the claimant in Nigeria.

DECISION

[26]     For these reasons, the panel finds that the claimant faces a risk of persecution if she returns to Nigeria. Accordingly, the panel finds [XXX] to be a Convention refugee pursuant to Section 96 of the Immigration and refugee protection act. Therefore, the claim is accepted.


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

[2] Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update.

[3] Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, May 1, 2017

[4] Exhibit 1, Package of Information from the Referring CBSA / IRCC

[5] (Maldonado [1980] 2.F.C. 302 (C.A.))

[6] Exhibit 4

[7] National Documentation Package, Nigeria, 29 November 2019, tab 6.1: Treatment of sexual minorities, including legislation, state protection, and support services; the safety of sexual minorities living in Lagos and Abuja (February 2012-October 2015). Immigration and Refugee Board of Canada. 13 November 2015. NGA105321.E.

[8] National Documentation Package, Nigeria, 29 November 2019, tab 6.4: Same Sex Marriage (Prohibition) Act, 2013. Nigeria. 2013.

[9] National Documentation Package, Nigeria, 29 November 2019, tab 6.7: Information on how bisexuality is understood and perceived in Nigeria; whether bisexuality is distinguished from both male and female homosexuality (2014-June 2015). Immigration and Refugee Board of Canada. 9 September 2015. NGA105219.E.

[10] National Documentation Package, Nigeria, 29 November 2019, tab 6. 7: Information on how bisexuality is understood and perceived in Nigeria; whether bisexuality is distinguished from both male and female homosexuality (2014-June 2015). Immigration and Refugee Board of Canada. 9 September 2015. NGA105219.E.

[11] (Ward [1993] 2 S.C.R. 689)

Categories
All Countries Nigeria

2020 RLLR 120

Citation: 2020 RLLR 120
Tribunal: Refugee Protection Division
Date of Decision: February 14, 2020
Panel: Harsimran Kaur
Counsel for the Claimant(s): Clémence Marie Camille Chevalier
Country: Nigeria
RPD Number: MB8-04564
Associated RPD Number(s): MB8-04594, MB8-04612
ATIP Number: A-2021-01106
ATIP Pages: 000007-000018

REASONS FOR DECISION

INTRODUCTION

[1]       This is the decision of the Refugee Protection Division (the Panel) in the claims for refugee protection of [XXX] (the principal claimant), his wife [XXX] (the associated claimant), and their minor daughter [XXX] (the minor female claimant), citizens of Nigeria. They claim refugee protection in Canada pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the Act).[1]

[2]       Prior to the start of the hearing, the Panel appointed the principal claimant as the designated representative for the minor female claimant.

[3]       In reaching its decision, the Panel took into consideration the Chairperson’s Guidelines No. 4 on Women Refugee Claimants Fearing Gender Related Persecution.[2]

ALLEGATIONS

[4]       The claimants’ detailed allegations are contained in the principal claimant’s Basis of Claim form (BOC)[3] and in the revised narrative, dated [XXX] 2020.The associated and the minor female claimant has adopted the allegations of the principal claimant.

[5]       The principal claimant fears being initiated into a cult because of a promise made by his father, to the cult members, whereby the father had nominated the principal claimant as his successor in the cult.

[6]       The principal claimant was unaware of his father’s cult membership and the promise. During his father’s burial ceremony, on the [XXX] 2010, while the principal claimant and his family were waiting for the Imam to perform the prayer, three cult members, dressed in traditional cult attire, suddenly arrived in his house and demanded to perform the burial as per their own traditions and left after singing some religious incantations and this was the first time that the principal claimant learnt of his father’ s cult association.

[7]       On the principal claimant’s wedding night, on [XXX] 2014, five cult members came to the house of the principal claimant and gave him a parcel which revealed that he has been promised by the father to the cult and that he should prepare himself for the initiation otherwise dire consequences await him.

[8]       The same cult members came back again on the naming ceremony of the minor female claimant on [XXX] 2015 and reminded the principal claimant that they hope his next child is a male child so that they could offer the male child as a sacrifice and initiate the principal claimant into the cult.

[9]       The principal claimant unequivocally told them about his disinterest in becoming a cult member and shortly thereafter, he started receiving threatening calls, which continued despite the claimants’ relocation from Ibadan to Oshogbo in Osun State.

[10] Besides the cult members, the claimant’s also fear [XXX], the current wealthy and influential family head with strong business ties, who has been strongly forcing and pressuring the claimants to perform Female Genital Mutilation (FGM) on the minor female claimant as per the traditional beliefs to uphold the family dignity and honour.

[11]     [XXX] made two unsuccessful kidnapping attempts on the minor female claimant, the first being on [XXX] 2017 and the second on [XXX] 2017.

[12]     The principal and the associated claimant further allege that they are both being personally targeted by [XXX] and his henchmen because of their non-compliance with the practice of FGM.

[13]     Fearing for their lives, the claimants left Nigeria on [XXX] 2017, were in the United States (US) until [XXX} 2018 and claimed asylum upon arrival in Canada.

DETERMINATION

[14]     The Panel has considered all of the evidence and finds that the claimants have established that they face a serious possibility of persecution under section 96 of the IRPA, for the minor female claimant on the basis of her membership in a particular social group, namely girls fearing female genital mutilation (FGM) and for the principal and the associated claimant on the basis of their membership in a particular social group – family, particularly, Nigerian parents refusing to subject their daughter to FGM. Accordingly, the Panel concludes that they are all “Convention refugees” pursuant to section 96 of the Act.

ANALYSIS

Identity

[15]     The claimants’ personal and national identities as citizens of Nigeria are established, on a balance of probabilities, by their testimony and by the documentary evidence on file, including copies of their Nigerian passports.[4]

Nexus

[16]     With respect to the female minor claimant, the Panel finds that there is a link: between her fear and one of the five Convention grounds, as a member of a particular social group of women or girls fearing FGM in Nigeria. For the principal and the associated claimant, as the parents of the minor female claimant, there is a link with their membership in a particular social group, family. Accordingly, their claims have been assessed under Section 96 of the Act.

Credibility and subjective fear

[17]     Testimony provided under oath is presumed to be truthful, unless there are reasons to doubt its truthfulness.[5] In the present case, the Panel has no such reason. The Panel finds the claimants to be credible witnesses and believes, on balance of probabilities, the key allegations of their claim. Their testimony was spontaneous, straightforward, direct and internally coherent with the documentary evidence on file and there were no significant contradictions, inconsistencies or omissions between the written and oral testimony. They were both spontaneous in their answers and the Panel did not find that they tried to embellish or exaggerate their narratives.

FGM of Minor Female Claimant

[18]     The claimants testified in detail about the pressure and threats they received from the family head [XXX], to have their daughter subjected to FGM, as well as the importance of FGM to the family of principal claimant. The principal claimant credibly alleges that he comes from a family that adheres to traditional beliefs regarding performing FGM on every girl child of the family from the age two (2) and older.

[19]     The principal claimant provided a comprehensive testimony of the events as they unfolded starting from [XXX] 2016 until the claimants’ departure from Nigeria. He testified that he was invited by [XXX] for a family meeting on [XXX] 2016, and it was during this meeting, the family members offered to the principal claimant the choice of choosing a date for performing FGM on the minor female claimant and when he refused to pick a date for the circumcision, [XXX] called the principal claimant towards the end of [XXX] 2016 and told the principal claimant that [XXX] 2017, is the date fixed for the circumcision of the minor female claimant.

[20]     The principal claimant further testified that when he did not take the minor female claimant for circumcision on the fixed date, the family members namely [XXX] and [XXX], at the behest [XXX], attempted to kidnap the minor female claimant from her house on [XXX] 2017. The associated claimant credibly testified how she was slapped on her ear by [XXX] while she was trying to rescue the minor female claimant from the kidnapper and that the whole situation was defused when their neighbor, [XXX], interjected to save the minor female claimant.

[21]     The claimants’ testimony is further corroborated by the affidavit of [XXX][6], their neighbor and the Panel accords full probative value to the said document.

[22]     The principal claimant went on to explain that out of fear they decided to relocate to Oshogbo, Osun State but on [XXX] 2017, [XXX], posing to pick the minor female claimant from her school, went to the school in an attempt to kidnap her and the situation was brought under control only when the proprietor of [XXX] School called the principal claimant, seeking his permission to allow the female minor claimant to go with [XXX]. The principal claimant further described how [XXX] was chased away by the school authorities after the principal claimant refused to give his consent allowing [XXX] to pick minor female claimant from the school. The associated claimant testified that she too got a call from the para educator of the minor female claimant, asking if the associated claimant is aware that the minor female claimant will be picked by [XXX]. The claimant’s oral testimony is keeping in line with their written testimony and is further corroborated by the letter from the proprietor of [XXX] School[7]. The Panel accords full weight to this document.

[23]     The principal claimant further testified that on [XXX] 2017, [XXX] called him and unambiguously told him that either they should bring the minor female claimant to the family or the family will eliminate them in order to perform the circumcision of the minor female claimant, thereby protecting and upholding the tradition of the family. From that time forward, the claimants realized that they would not be safe in Nigeria and they ramped up their efforts to leave the country. The principal claimant’s testimony is corroborated by the affidavit of his mother-in-law[8] and his aunt[9].

[24]     Thus, in light of the two failed kidnapping attempts of minor female claimant by [XXX] and the threatening phone call on [XXX] 2017, the Panel concludes that, on balance of probabilities, [XXX] is interested in performing FGM on the minor female claimant.

Objective basis

[25]     The principal claimant’s allegations are consistent with the objective documentary evidence on FGM in Nigeria. The documentary evidence indicates that the practice of FGM ‘continues to thrive’ and is widespread in Nigeria, such that several thousand girls and women are subjected to it, despite the passing into law of the Violence against Person’s (Prohibition) Act (VAPP)[10].

[26]     The documentary evidence states that decision to subject a girl to FGM in Nigeria is up to the girl’s parents.[11] Though the tradition varies from one ethnic tribe to another, but the evidence indicates that the involvement of family members is a common feature.

[27]     According to the said documentary evidence[12], parents are free to oppose the rituals but then it goes on to explain that refusals come with consequences such as ostracism, stigmatization, blackmailing, denial of intracultural benefits and physical abuse.

[28]     The principal claimant testified that [XXX] and other members of his family believe that if a girl is not circumcised, she will grow up to be a prostitute and will bring defame to the family and that if anything untoward happens in the family, for instance, if there is a death in the family or somebody has an accident, or someone loses a job, has a broken marriage or if somebody’s child failed an exam, the claimants will be blamed for the unfortunate events which will give [XXX] and the family an impetus to hunt down the claimants.

[29]     Thus, the Panel concludes, on balance of probabilities, that [XXX] and other family members are capable of forcing FGM on minor female claimant despite the opposition of the principal and associated claimant.

STATE PROTECTION

[30]     For the reasons below, the Panel finds that the claimants have rebutted the presumption of state protection with clear and convincing evidence that the state of Nigeria would be unable or unwilling to provide the claimants with adequate state protection.

[31]     The principal claimant was asked if he had made a police complaint about the two failed kidnapping attempts of the minor female claimant by [XXX]. He testified that making a police complaint would have yielded no results as [XXX] is a wealthy businessman, is politically well-connected and would have used the clout to get away with the complaint. The principal claimant went on to explain that considering it’s a family matter, police would have been reluctant to intervene had he complained.

[32]     The Panel finds the principal claimant’s explanation reasonable. Moreover, the objective evidence also indicates that the police response to traditional or customary matters is typically non-­interventionist. The research provides that “in practice, people cannot necessarily rely on the police” and it is the custodians of cultural or traditional rites that ultimately determine the fate of the individual”.[13]

[33]     The Violence against persons (Prohibition) Act, 2015, is the federal law attempting to prohibit FGM across the whole county. The VAPP Act aims at eliminating gender-based violence in private and public life by criminalizing and setting out the punishment for acts including rape (but not spousal rape), incest, domestic violence, stalking, harmful traditional practices, and FGM. However, the VAPP Act is only in effect in the Federal Capital Territory, and as such, the remaining states must pass legislation to implement it across the country.[14] The documentary evidence further states that state governments have, to date, been slow to respond to the introduction of the VAPP Act. As of June 2018, only 13 states had adopted anti-FGM legislation.[15]

[34]     Despite the legislation, however, the documentary evidence indicates that the practice of FGM continues to thrive in Nigeria.[16] There have been no prosecutions of perpetrators of FGM in Nigeria since the passing of the legislation.[17] The documentary evidence also provides that it is extremely difficult for women and girls to obtain protection with respect to FGM, and that there is widespread community support for these practices and the traditional attitude of police help to support them.[18] Accordingly, the Panel finds that despite there being laws prohibiting FGM in Lagos and Abuja and in certain other states, these laws are not being enforced such that the claimants could reasonably expect adequate state protection from FGM in Nigeria.

[35]     Given the evidence, the Panel finds, on a balance of probabilities, that adequate protection would not be provided to the minor female claimant or to the claimants for objecting to the practice, in Nigeria.

Internal Flight Alternative (IFA)

[36]     At the hearing, the Panel identified Abuja, Port Harcourt, and Lagos as potential IFA locations (together, the “IFA locations”). However, the Panel finds that the claimants face a serious possibility of persecution throughout Nigeria. The Panel has considered the Jurisprudential Guide in the Refugee Appeal Division (RAD) decision TB7-19851 but after careful consideration, the Panel does not view the circumstances of this case as an appropriate one to apply Jurisprudential guide given the far reach and influence of [XXX].

Means available for [XXX] to find claimants in Port Harcourt, Abuja and Lagos

[37]     The principal claimant testified that [XXX] has an [XXX] business which is operated from Port Harcourt, has a wife, kids and a half-brother in Port Harcourt and that the claimants can run into them in a mall, hospital, park or any other public place and there could also be a possibility of [XXX] kids and minor female claimant attending the same school. Because of all this, it will be very easy for [XXX] to find the claimants in Port Harcourt. The principal claimant further credibly alleged that [XXX] can also use power and connections to track down the claimants in Port Harcourt.

[38]     Furthermore, the principal claimant testified that he has many family members in Abuja, with whom he can have a coincidental encounter at a bank, shopping mall or a gas station and then they can always let pass [XXX] know that claimants are in Abuja who can then kill or harm them or kidnap the minor female claimant.

[39]     The principal claimant also explained that since Lagos is close to Ibadan and he has brothers and sisters living there, it will be easy for [XXX] to track him down there. He provided the example of how after the shop of one of his brother’s got burnt, the claimants were blamed for the torching of the shop because of their refusal to comply with traditional practice of performing FGM on the minor female claimant. He went on to explain further that incidents like these can be an impetus for the extended family to disclose the claimant’s location in Lagos to [XXX] if the claimants relocate to Lagos.

[40]     Moreover, after their relocation to Oshogbo in [XXX] 2017, [XXX] was not only able to find the claimants but also attempted to kidnap the minor female claimant on [XXX] 2017.

[41]     Hence, the Panel concludes that, on balance of probabilities, [XXX] has the means to find the claimants in Port Harcourt, Abuja and Lagos.

Motivation to find the claimants

[42]     The principal claimant explained that [XXX], despite considering himself to be a guardian of traditional and family practises, has a vested interest in performing FGM of the minor female claimant since [XXX] wants to be a king and the kingmakers might use against [XXX] the fact that a girl from his own family has not been circumcised and that if he cannot make his own family adhere to their traditional beliefs and customs, [XXX] cannot be a good king.

[43]     The principal claimant’s testimony is further buttressed by the affidavit from [XXX][19], mother-in-law of the principal claimant and the affidavit of [XXX][20], aunt of the principal claimant. Both these affidavits mention the constant threats hurled at them by [XXX] because of their alleged complicity with the claimants, vis-à-vis their refusal to subject the minor female claimant to FGM.

[44]     Hence, the Panel concludes that, on balance of probabilities, [XXX] has the means and motivation to find the claimants in Port Harcourt, Abuja and Lagos.

[45]     Thus, the Panel concludes that because the agent of persecution has the means and the motivation to find the claimants anywhere in Nigeria, there is no viable IFA in Nigeria for them. Furthermore, the Panel notes the absence of state protection for traditional practices and FGM throughout Nigeria.

[46]     Accordingly, the Panel finds that the possibility of an IFA fails on the first prong.

CONCLUSION

[47]     Having considered and assessed the evidence in totality, the Panel concludes that the minor female claimant has established a serious possibility of persecution in Nigeria based on her membership in particular social group, Nigerian female fearing FGM.

[48]     The Panel also concludes that the principal and the associated claimant have established a serious possibility of persecution in Nigeria based on their membership in particular social group, namely family; in particular, Nigerian parents refusing to subject their daughter to FGM.

[49]     The Panel finds that the claimants are Convention refugees within the meaning of Section 96 of the Act.

[50]     The Panel, therefore, accepts their claims.

[51]     Since the Panel has found the claimants to be Convention Refugees within the meaning of Section 96 of the Act, the Panel does not deem it necessary to make an analysis of the fear of the principal claimant stemming from his refusal to be initiated in a traditional Yoruban cult, under section 96 and subsection 97(1) (b) of the Act.


[1] Immigration and Refugee Protection Act, S.C. 2001, c, 27, as amended.

[2] Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution. Effective date: November 13, 1996. Guidelines issued by the Chairperson pursuant to Section 65(3) of the Immigration Act.

[3] Document 1 — Basis of Claim forms (BOC).

[4] Document 3 — Idem.

[5] Moldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.).

[6] Document 4 — Exhibit P 10: Affidavit of [XXX].

[7] Document 4 — Exhibit P-6: Letter from [XXX] School.

[8] Document 4 — Exhibit P-7: Affidavit of [XXX].

[9] Document 4 — Exhibit P-8: Affidavit of [XXX].

[10] Document 3 — National Documentation Package (NDP), Nigeria, 29 November 2019, tab 5.21: Response Immigration and Refugee Board of Canada. 25 January 2016. NGA105404.E.

[11] Document 3 – NDP, Nigeria, 29 November 2019, tab 5.12: Response to an information request. Immigration and Refugee Board of Canada. 29 October 2018. NGA106183.FE.

[12] Idem.

[13] Document 3 — NDP, Nigeria, 29 November 2019, tab 10.8: Response to an information equest. Immigration and Refugee Board of Canada. 14 November 2016. NGA105659.E.

[14] Idem.

[15] Document 3 — NDP, Nigeria, 29 November 2019, tab 5.22: Country Profile: FGM in Nigeria. 28 Too Many. October 2016.

[16] Supra, note 11.

[17] Supra, note 13.

[18] Idem.

[19] Document 4 — Exhibit P7: Affidavit from [XXX].

[20] Document 4 — Exhibit P8- Affidavit from [XXX].


Categories
All Countries Nigeria

2020 RLLR 108

Citation: 2020 RLLR 108
Tribunal: Refugee Protection Division
Date of Decision: February 21, 2020
Panel: Z. Perhan
Counsel for the Claimant(s): Benjamin Allison
Country: Nigeria
RPD Number: TB9-16707
Associated RPD Number(s): TB9-16771
ATIP Number: A-2021-00945
ATIP Pages: 000168-000172

DECISION

[1]       MEMBER:    So, this is the decision for [XXX] file number TB9-16771 the principal claimant and her son [XXX] the minor claimant.

[2]       I’ve had an opportunity to consider your testimony, examined the evidence before me and I’m ready to render my decision orally. You will receive an edited … unedited transcript of the decision in the mail. Your counsel will also get a copy so if you have any questions you’re welcome to ask him.

[3]       You claim to be citizens of Nigeria claiming refugee protection pursuant to Section 96 and 97(1) of the Immigration and Refugee Protection Act.

[4]       I find that both of you are Convention refugees for the following reasons.

[5]       The allegations of your claim can be found in the Basis of Claim Form in Exhibit 2. The details were elaborated today in your testimony. In summary, you the principal claimant, fear persecution in Nigeria due to your sexual orientation as a member of a particular social group, namely because you are bisexual. You also fear persecution at the hands of your first husband whose abusive relationship you escaped when you fled Nigeria for the United States.

[6]       Your son the minor claimant fears persecution as a child of a bisexual women who will be ostracized by the community members and might face spiritual cleansing to rid him of his mother’s sins.

[7]       Based on the type of claim I’ve carefully considered Chairperson’s guidelines 9, 4, and 3. So, sexual orientation and gender identity, women refugee claimants, and child refugee claimants.

[8]       I find your identities as nationals of Nigeria have been established, on a balance of probabilities, through your testimony, through your valid Nigerian passports which were presented when you made your claim in Exhibit 1. I find no reasons to doubt the authenticity of those documents.

[9]       In terms of your general credibility I find you to be a credible witness. Principal claimant, you have testified in a straightforward manner. There were no relevant inconsistencies in your testimony or contradictions between your testimony and the other evidence before me. I also find that were no embellishments made within your testimony. Therefore, I accept what you have alleged in support of your claim including the following.

[10]     Central issue of your claim is sexual orientation so I put a lot of weight into your testimony and documents relating to your past and current same sex partners in Nigeria and in the United States.

[11]     You testified about your first relationship and your longest relationship in Nigeria which you had to end as you fled the country in 2016. You did not escape because your sexuality was revealed, but because you had been in an abusive relationship until [XXX] 2016 with a man who physical and verbally tormented you, after the divorce you still could not escape his threats and left in [XXX] 2016 on a visitor’s visa to the United States.

[12]     There you met your second husband who started the sponsorship process so you could stay in the US permanently. However, because you were also in a same sex relationship and your husband found out he stopped the process of sponsorship in [XXX] 2017. Told your family and relatives in Nigeria about your sexuality and his unwillingness to have a bisexual wife.

[13]     After consulting with the church members in the United States you understood that you would not be able to obtain the status there. Returning to Nigeria would mean being persecuted by the community and the State for being a bisexual. So, you were advised to go to Canada and claim refugee protection here.

[14]     I did not … you did not present any supporting letters from your previous same sex partners. You lost contact with your Nigerian partner in 2016 because she was upset with you leaving her and going to the US.

[15]     Your US partner did not support your after you split from your second husband and did not want anyone in the Nigerian community in the United States to know about you two. You yourself were ashamed and still feel ashamed of who you are and not ready to share your feelings with anyone.

[16]     Your family members in Nigeria known you’re a bisexual and you also received telephone threats from your second husband’s family who told you not to come back to Nigeria. In addition, your son, if returned to Nigeria would have to probably undergo the spiritual cleansing to rid him of the mother’s sins and homosexuality.

[17]     While in Canada you have been an active church member though in Windsor participating in services regularly and volunteering in the local community centre. But even now it is hard for you to share your feelings and have a relationship with anyone. You’re still depressed about your past relationship and the consequences they had for you.

[18]     In general, I find your testimony today was credible and, on balance of probabilities, you, the principal claimant, are a bisexual woman.

[19]     As to the minor claimant I asked whether he would face any harm if he’s returned to Nigeria. You said he would not face any serious harm but would … would be separated from his mother.

[20]     During the counsel’s questioning you said that if your son gets … you also added if your son gets into the hands of the elders who know you’re bisexuality he will have to go through dangerous ritual cleansing. In addition, he will be discriminated against and ostracized as a family member of the bisexual. The harassment, as counsel indicated in his submissions, could amount to persecution and risk to boy’s life.

[21]     I find there is a link between what you fear and one of the give Convention grounds. As noted earlier the Convention ground for your claim is a particular social group. So, on a balance of probabilities, I accept that you are a bisexual woman and the minor claimant your son is a family member of the bisexual. Your claim is analyzed pursuant to Section 96 of the Immigration and Refugee Protection Act.

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

[23]     National Documentation Package for Nigeria in Exhibit 3 Items 6.1, 2.1, and 6.7 indicate that same sex relationships are criminalized in Nigeria. In particular, according to the Same Sex Marriage (Prohibition) Act all forms of LGBTQ activity, supporting and promoting it are illegal in Nigeria. Anyone convicted of entering into a same sex marriage or civil union may be sentenced to 14 years in prison. Anybody aiding or assisting homosexual activities faces a punishment of up to 10 years in prison.

[24]     Any sexual orientation that is not heterosexual is considered to be unnatural, demonic, and immoral in Nigeria.

[25]     The documentary evidence further indicates that family members of LGBTQ persons face treatment amounting to persecution and it’s found in Tab 6.11, 10.1 in the National Documentation Package. So, family members of sexual minorities including spouses, parents, children, and siblings face ostracism, stigmatization, embarrassment from community members, other extended family members. Family members of sexual minorities can be cut off from their community, can be insulted and assaulted by community members.

[26]     In addition and as pointed by the counsel, Nigerian police force have arrested and detained relatives of wanted person. You as a bisexual is a wanted person in Nigeria. This act is often undertaken by the police with the intent of drawing a wanted person from hiding and forcing their surrender to law enforcement authorities.

[27]     So, counsel was right. Tab 10.1 actually points out that fact that family members of wanted persons will be and can be detained with no particular reason.

[28]     The minor … according to counsel’s submissions in addition the minor claimant could be… also face a great possibility for his persecution, increased danger that could lead to chi Id abduction, him being pressured into spiritual cleansing rituals that elders would perform on him.

[29]     Overall, the objective country condition evidence supports conclusion that both of you, you and your son, have an objective basis for your claim. You as a bisexual person and the minor claimant your son as a family member of the bisexual person.

[30]     You also fear police, authorities, and Nigerian community in general as same sex relationship is criminalized across Nigeria. I find it would be objectively unreasonable for you to seek protection of the authorities in Nigeria. Adequate State protection would not be available to you as you fear the State.

[31]     With regards to possible viable internal flight alternative in Nigeria, given the laws, the Federal laws of Nigeria criminalizing same sex relationship, I find there is a serious possibility of persecution for you throughout Nigeria. Therefore, a viable internal flight alternative does not exist for you in Nigeria.

[32]     As per your son the minor claimant, I also considered IFA for him, but again in his particular circumstances it is unreasonable to relocate anywhere in Nigeria without adults. It’s simply not safe.

[33]     So, having considered all of the evidence I find there is a serious possibility that you would face persecution in Nigeria pursuant to Section 96 of the Immigration and Refugee Protection Act.

[34]     I conclude that you are both Convention refugees based on your membership in a particular social group, principal claimant as a bisexual and the minor claimant as a family member of a bisexual. I therefore accept both your claims. Thank you.

———- REASONS CONCLUDED ———-