Categories
All Countries Nigeria

2020 RLLR 103

Citation: 2020 RLLR 103
Tribunal: Refugee Protection Division
Date of Decision: January 15, 2020
Panel: Dena Hamat
Counsel for the Claimant(s): Bolanle Olusina (Sina) Ogunleye
Country: Nigeria
RPD Number: TB8-31185
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000136-000139

DECISION

[1]       MEMBER: I’ve considered your testimony and the other evidence in this case and I’m ready to render my decision orally. The claimant, [XXX] is a citizen of Nigeria and claims a well-founded fear of persecution based on her sexual orientation as a lesbian. She additionally fears persecution from her relatives based on her gender, as they’re attempting to force her into prostitution. In assessing your claim, I have considered Chairperson’s Guideline 9 proceedings before the IRB involving sexual orientation and gender identity and expression.

[2]       Interpreter: According to Section 9, right?

[3]       Member: I’ve considered the Chairperson’s Guideline 9. Do you mind actually if you-, can you do simultaneous interpretation, if you don’t mind?

[4]       Counsel: At the back

[5]       Member: So, if you can flip your microphone and just.

[6]       Counsel: Thank you. (inaudible) here you can sit. Just talking to her (inaudible)

[7]       Interpreter: Oh ok, ok, ok, ok.

[8]       Counsel: Sit beside her

[9]       Interpreter: Oh ok, ok

[10]     MEMBER: Thank you. I’ve also considered the Chairperson’s Guideline 4 on gender-related claims.

[11]     I find that you are a Convention refugee pursuant to Section 96 of the Immigration and Refugee Protection Act.

[12]     The details of your claim are documented in your Basis of Claim form and were elaborated upon by you orally during the hearing.

[13]     In summary, you fear persecution in Nigeria at the hands of the government and society at large, due to your sexual orientation as a lesbian woman.

[14]     Your identity as a national of Nigeria has been established on a balance of probabilities through your passport on file at Exhibit 1.

[15]     There was an issue in that you transited through the US in [XXX] 2018 with a false US passport and there is therefore no biometric match despite this trip. There is also no objective evidence of your stay in the United States.

[16]     Nevertheless, I find that you have established that you do not have any status in the United States through your co-, spontaneous and consistent testimony.

[17]     With regard to credibility, I have found you overall to be a credible witness. You testified in a straightforward manner and there were no inconsistencies that were not reasonably explained. Given that I have found you to be a credible witness, I also accept what you have alleged in support of your claim, including the following.

[18]     You first became aware of your sexual orientation when you were growing up in Nigeria. You had two same-sex relationships in Nigeria. You were not able to express your sexual orientation freely in Nigeria. They, your relatives attempted to force you into prostitution in 2016. You were assaulted when you refused. You presented documentary evidence in support of your claim, including a medical report confirming your assault in 2016, letters of support from your ex-girlfriends in Nigeria, letters of support from your brother and mother in Nigeria, a letter of support from your previous employer in Nigeria and documentation from the 519 program and the Black Coalition for AIDS Prevention.

[19]     I did have some concerns about your alleged relationship in Canada, as your testimony had inconsistencies with regards to the progression of your relationship. I also had concerns about the lack of any documentation to corroborate this one year relationship.

[20]     While I do draw a negative inference from these inconsistencies and from the lack of documentation, I do find that you credibly established that you were in same-sex relationships in Nigeria. I therefore find that this concern is not determinative.

[21]     Having regard to all the evidence, the claimant established, on a balance of probabilities, her lesbian orientation.

[22]     The most recent Department of State report on human rights practices in Nigeria, at Item 2.1 indicates that, human rights issues included crimes involving violence targeting LGBTI persons and the criminalization of status in same-sex conduct based on sexual orientation and gender identity. At Items 6.11 of the NDP, the Comprehensive Immigration and Refugee report on the situation of sexual and gender minorities in Nigeria, caver the period between 2014 and 2018 indicates the following. Sources report that since Nigeria passed the SSMPA in 2014, which hads been used as a tool by authorities and society to act against sexual minorities, including to carry out human rights violations, such as torture, sexual violence, arbitrary detention, violations of due process rights and extortion. Sources indicate that Nigerian society generally disapproves of sexual minorities. Sources indicate that sexual minorities are generally not accepted by family members. According to sources, labels such as gay, lesbian and transgender and bi-sexual are used in Nigeria often with derision or in a derogatory manner.

[23]     Sexual minorities do not or are reluctant to openly identify as sexual minorities because it is dangerous for them, as they may face violence or be ostracized. Both les-, both, both bi-sexuality and homosexuality are viewed negatively and neither bi-sexuals nor homosexuals are accepted in Nigerian society. According to sources, sexual minorities are subject to mob attacks or violence, vigilante groups have reportedly targeted and attack sexual minorities. The documentary evidence establishes an objective basis for this claim. The same IRB report at, Item 6.11 of the NDP indicates the following. Sources indicate that police raid gatherings of sexual minorities and arrest them often. Police extorts sexual minorities when they are arrested or detained. According to sources, state protection is not available to sexual minorities in Nigeria, given that homosexual acts are illegal. The SOGIE Guidelines indicate as follows. The criminalization of the existence or behavior of individuals with diverse SOGIE, may create a climate of impunity for perpetrators of violence, and normalize acts of blackmail, sexual abuse, violence and extortion by state and non-state actors.

[24]     Based on the claimant’s personal circumstances, as well the-, as the objective country documentation, I find that adequate state protection would not be available to her in Nigeria.

[25]     The claimant has rebutted the presumption of state protection.

[26]     The Response to Information Request, at Item 6.1 of the NDP indicates that, the intolerant attitude towards homosexuals is prevalent throughout Nigeria. The SOGIE Guideline states that it is well established in law, that an IFA is not viable if an individual, with a diverse SOGIE, must conceal their SOGIE in order to live in that location.

[27]     I therefore find that you face a serious per-, possibility of persecution in Nigeria based on your, based on your sexual orientation.

[28]     In conclusion, I, I find that [XXX] faces a serious possibility of persecution in Nigeria on the basis of her sexual orientation. Therefore, she is a Convention refugee and I accept her claim.

———- REASONS CONCLUDED ———-

Categories
All Countries Nigeria

2020 RLLR 91

Citation: 2020 RLLR 91
Tribunal: Refugee Protection Division
Date of Decision: November 23, 2020
Panel: Haig Basmajian
Counsel for the Claimant(s): Otto Ibii
Country: Nigeria
RPD Number: MB8-11891
Associated RPD Number(s): MB8-11950, MB8-11951
ATIP Number: A-2021-00945
ATIP Pages: 000020-000026

REASONS FOR DECISION

INTRODUCTION

[1]       [XXX], the principal claimant, as well as her two minor children [XXX] and [XXX] are citizens of Nigeria. They are seeking refugee status pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA). The principal claimant is the designated representative of her two minor children.

DETERMINATION

[2]       The Panel finds that the claimants are “Convention Refugees” under subsection 96 of the IRPA for the reasons indicated below.

ANALYSIS

Identity

[3]       The identity and nationality of the claimants have been established to the satisfaction of the Panel by taking into account the photocopy of their Nigerian passports contained in their respective files.[1]

ALLEGATIONS

[4]       The principal claimant’s Basis of Claim form (BOC), particularly her narrative and amendments, describes the details of her fear to return to Nigeria due to the violence she could face at the hands of her husband and his family, in addition to their insistence that their daughter, the claimant [XXX] be forced to a Female Genital Mutilation (FGM) performed on her. Given some of the content of this claim, which includes sensitive matters such as domestic abuse, the Panel took into consideration the Chairperson’s Guideline 4 of the Refugee Protection Division: Women Refugee Claimants Fearing Gender-Related Persecution.[2]

[5]       The principal claimant, accompanied by her counsel, testified via videoconference during the hearing. Given some significant additions and modifications to the narrative, notably that she was the victim of domestic abuse in Nigeria the claimant was asked to explain. The claimant answered that she had provided the modifications and new evidence to her former counsel who did not file these documents to the Refugee Protection Division (RPD).

[6]       In addition, she has recently had considerable personal issues such as a car accident and the recent surgery and hospitalization of her son following a serious cycling accident resulting in a ruptured pancreas, he was hospitalized on [XXX] 2020, and released a few days before the hearing on [XXX] 2020. Given that several documents were not submitted to corroborate these issues as well as the fact that she had just begun the preliminary process to divorce from her agent of persecution, the panel allowed the claimant the opportunity to submit these documents after the hearing. As such, several documents were submitted as evidence and the file was under reserve as of [XXX] 2020.

[7]       This additional evidence provided plausible explanations to explain some of the inconsistencies which were outlined during the hearing.

[8]       Given some of the context of the claim, including the evidence submitted before the hearing as well as Exhibits C-102 to C-106, submitted post-hearing, notably attesting the serious medical issues encountered by the claimants as well as the principles of Guideline 4, despite some contradictions and details regarding some aspects of the claims, the Panel concludes that the claimant’s fears appear to be genuine, on a balance of probabilities, as such the Panel will extend the benefit of the doubt and conclude that it is possible that she has been subject to years of violent domestic abuse as described during her testimony, in addition that her daughter could be subject to a forced FGM procedure.

[9]       Sadly, as the Panel can notice throughout the National Documentation Package (NDP) regarding Nigeria, staggering levels of violence towards women are unfortunately a frequent occurrence in that country. Notably page 30 of tab 2.1 of the NDP shows that “The law criminalizes rape, but it remained widespread. In March, UNICEF released a report noting that about one in four girls and one in ten boys were victims of sexual violence prior to their 18th birthday.”[3]

[10] Furthermore, page 34 from tab 1.4 of the NDP states that “Rape is common and widespread; societal stigma reduces the likelihood of victims reporting it or of perpetrators being prosecuted or punished.”[4]

[11]     The Panel also took into consideration some of the other elements submitted as evidence. Notably, at pages 6 to 34 from the objective country evidence submitted by the claimants in Exhibits C-3 to C-12 regarding the ongoing practise of FGM, which demonstrates that despite some efforts, it is still unfortunately widespread across Nigeria.

State Protection

[12]     Given, the above findings, the Panel must examine state protection. The leading jurisprudence, notably in Ward Canada (Attorney General) v. Ward, 1993 CanLII 105 (SCC), [1993] 2 SCR 689, teaches us that States are presumed to be capable of protecting their citizens except in situations of a complete breakdown. In addition, the presumption that a state is capable of protecting its citizens underscores the principal that international protection comes into play only when a refugee claimant has no other recourse available. To rebut the presumption of state protection claimants must provide clear and convincing evidence of the State’s inability to protect its citizens.

[13]     In the present case, the claimant tried to obtain State protection. In addition, the claimant fears the repercussions from corrupt police.

[14]     In such cases, the panel is often guided by findings contained in objective evidence in order to ascertain the plausibility of the absence of state protection.

[15]     The claimant did submit some objective evidence in Exhibits C-30 and C-31 detailing the current state of widespread violence and corruption. The Panel also found similar findings in the NDP, particularly related to the state protection apparatus, notably at exhibits 2.1 and 1.4, respectively:

There were several reports that the government or its agents committed arbitrary, unlawful, or extrajudicial killings. The national police, army, and other security services sometimes used lethal and excessive force to disperse protesters and apprehend criminals and suspects.”[5]

Authorities did not always hold police, military, or other security force personnel accountable for the use of excessive or deadly force or for the deaths of persons in custody.”[6]

Police remained susceptible to corruption, committed human rights violations, and operated with widespread impunity in the apprehension, illegal detention, and torture of suspects.”

According to US DoS, the judiciary in Nigeria was affected by understaffing, underfunding, inefficiency, political interference, bribery, lacking equipment and training. As a result, the judiciary could not function adequately. Freedom House drew similar conclusions in its report for 2016.[7]

The Nigerian Police force has been criticized for corruption and human rights abuses by researchers and organizations over the years. In a recent study, the relationship between the police and the public in Nigeria was called perhaps the most troublesome in sub-Saharan Africa. Another source notes that the Nigerian Police Force is widely perceived by the public as the most corrupt violent institution in Nigeria.

In 2010 Human Rights Watch (HRW) concluded that the police was not only extorting money of ordinary civilians, but also that criminal suspects with money could simply bribe the police to find their own way out. HRW also reported that at least 100 000 police officers were hired as personal guards by the wealthy, at the expense of the majority.[8]

[16]     By considering the evidence in its entirety, the Panel finds that on a balance of probabilities, an individual with the profile of the claimant and the specific circumstances of this case has rebutted the presumption of state protection.

INTERNAL FLIGHT ALTERNATIVE (IFA)

[17]     Several cities were suggested. However, by considering the profile of the principal claimant, who was abused by her husband for several years, this abuse was unfortunately not limited to her but to her son as well. In addition, her daughter fears to be forced to undergo an FGM and by taking into account the conclusion regarding state protection, finding a safe IFA is not a viable option per the Panel. Given the family link with the agent of persecution and the claimants it would be very possible that he can retrieve them and continue with his violent ways towards them. Furthermore, by considering some of the objective evidence from the NDP on page 16, from tab 1.4 as well as page 37 from tab 2.1, we see that despite its vast size and population, it is not simple or in many cases feasible to relocate, of course, depending on an individual’s profile:

“Nigeria is a large and complex country, with much internal variation, but the main divide that is brought up by Nigerians and foreign commentators alike, is the divide between the country’s south and north. This divide is based on historical, environmental, economic, cultural, linguistic, religious and political differences between these two parts.”[9]

“The country’s ethnically diverse population consisted of more than 250 groups speaking 395 different languages. Many were concentrated geographically. Three major groups– the Hausa, Igbo, and Yoruba– together constituted approximately one half the population. Members of all ethnic groups practised ethnic discrimination, particularly in the private sector hiring patterns and the segregation of urban neighbourhoods. A long history of tension existed among some ethnic groups.”[10]

[18]     After considering the evidence in its entirety, the Panel finds that on a balance of probabilities, an individual with the profile of the claimant and the specific circumstances of this case could not find a viable IFA in Nigeria.

CONCLUSION

[19]     For all these reasons, the Panel concludes that the claimants [XXX] and [XXX] are “Convention Refugees” and therefore accepts their refugee claims.


[1] Document 1 — Package of information from the referring Canada Border Services Agency (CBSA) or Immigration, Refugees and Citizenship Canada (IRCC): Copy of passports.

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

[3] Document 3 — National Documentation Package, Nigeria, 31 July 2020, tab 2.1: Nigeria. Country Reports on Human Rights Practices for 2019, United States, Department of State, 11 March 2020.

[4] Document 3 — NDP, Nigeria, tab 1.4: EASO Country of Origin Information Report: Nigeria, Country Focus, European Union, European Asylum Support Office, June 2017.

[5] Supra, note 3.

[6] Supra, note 4.

[7] Ibid, page 29.

[8] Ibid, page 30.

[9] Supra, note 4.

[10] Supra, note 3.

Categories
All Countries Nigeria

2020 RLLR 86

Citation: 2020 RLLR 86
Tribunal: Refugee Protection Division
Date of Decision: March 2, 2020
Panel: Sandeep Chauhan
Counsel for the Claimant(s): Alastair Clarke
Country: Nigeria
RPD Number: VB9-05166
Associated RPD Number(s): VB9-05182, VB9-05188, VB9-05189
ATIP Number: A-2021-00800
ATIP Pages: 000171-000174

DECISION

[1]       MEMBER: This is the decision of the Refugee Protection Division in the joint claims of [XXX], who is the principal claimant, her spouse, [XXX], who is the associate adult claimant, and the children [XXX] who is the minor male claimant, and [XXX], who is the minor female claimant. The principal claimant, the associate adult claimant and the minor male claimant are citizens of Niz- Nigeria. The minor female claimant is a citizen of USA. They are claiming refugee protection pursuant to Section 96 and Subsection 97(1) of the Immigration and Refugee Protection Act.

[2]       [XXX] was appointed as the designated representative for [XXX] and [XXX] In deciding these claims, the Panel has taken into consideration the following: Guideline 3 which deals with Child Refugee Claimants, Guideline 4 that deals with Women Refugee Claimants Fearing Gender-Related Persecution, and Guideline 9 which deals with Proceedings Before the Immigration and Refugee Board involving Sexual Orientation and Gender-Identity and Expression, also known as SOGIE.

Allegations

[3]       The principal claimant is bisexual and fears persecution at the hands of society and state authorities in Nigeria. The associate adult claimant fears persecution at the hands of the state authorities, the society in general and his family, due to the sexual orientation of his wife. The following is a brief synopsis of the allegations put forth by the principal claimant and the adult associate claimant in their Basis of Claim forms, in Exhibit 2.

[4]       The principal claimant started discovering about her bisexuality at the age of [XXX], in 1997. She had her first sexual experience with a female when her cousin came to stay with them in the year 2000. Their relationship continued until 2003 and was kept hidden from family and friends. She dated her first boyfriend in 2004. At this time, the principal claimant also started a relationship with a woman and dated both her boyfriend and her girlfriend at the same time. She ended both relationships in 2006, as she wanted to remain single because she thought she will not be able to find anyone who would understand and accept her bisexuality. The principal claimant fully embraced her bisexual orientation at this time. She succumbed to her mother’s pressure and got married to the associate adult claimant in [XXX] 2015. The associate adult claimant discovered the principal claimant and one of her girlfriends in a compromising position on [XXX] 2007, when he came home early from a business trip. He was furious and reported the principal claimant and her friend to the police. The principal claimant then fled to he brother’s house and told her family about her sexual orientation. The associate adult claimant eventually accepted the principal claimant’s bisexuality but informed her that the police is now looking for them. On [XXX] 2017, the principal claimant’s in-laws came to know about her bisexuality and started pressuring the associate adult claimant to divorce her. When he refused to do so, they beat him up and followed that up with a threat over the phone to the principal claimant, that she will be reported to the police for her bisexuality as it is a punishable crime in Nigeria. Fearing for their lives, the claimants reached USA on [XXX] 2018 and then travelled to Canada on [XXX] 2019; where they filed for protection. The principal claimant did not advance any allegations against USA in the claim of the minor female claimant.

Analysis

Identity

[5]       The identities of the principal claimant, the associate adult claimant and the minor male claimant, as citizens of Nigeria are established on a balance of probabilities based on the certified copies of their Nigerian passports in Exhibit 1.

[6]       The identity of the minor female claimant as a citizen of USA is established by way of the certified copy of her US passport on file.

Credibility

[7]       At an RPD hearing, the presumption before the Panel is that a claimant’s testimony is true, however, this can be rebutted in appropriate circumstances, such as inconsistencies, contradictions, omissions and undetailed testimony. However, this was not the case here. In this case, the principal claimant was straightforward and forthcoming in her testimony. There were no relevant inconsistencies or contradictions between her testimony and other evidence before the Panel. She did not appear to embellish her description of events and actions. The principal claimant provided testimony of past relationships with women in detail, as well as testimony of the circumstances and experiences which she went through when her bisexuality came out in the open. She described that she studied in an all female school and was attracted to one of her friends physically. Both of them became very close and had an intimate physical relationship. The principal claimant was able to explain how she did not feel normal and felt out of place because of her sexual orientation. When asked what that meant, she explained that she could not express herself openly for the fear of being seen as a person with low moral character. She stated that people in Nigeria view sexual minority as someone who should be punished with death. The Panel canvassed with the principal claimant why she got married, if she had decided in 2006 that she will remain single. She explained that single women in Nigeria are viewed as prostitutes and she succumbed to her mother’s pressure due to this reason. The principal claimant also stated that she, too, believes that a woman’s pride is in being in a married relationship, as this is how she was raised. She was honest in saying that she hid her bisexuality from the associate adult claimant because he was disgusted with the idea. When she was discovered by her husband in and intimate way, in [XXX] 2017, she was terrified over her marriage coming to an end, which is why she begged and pleaded with the associate adult claimant to forgive her. He has now come to accept her sexual orientation.

[8]       The associate adult claimant was also straightforward in his testimony. He was honest in stating that he was disgusted and shocked at this, discovering the principal claimant with her friend in a compromising position. Out of impulse, he went to the police station and asked the authorities to arrest the principal claimant’s friend but not her. He explained that he loves the principal claimant and accepts who she is. He believes that one is born the way they are regarding their sexual orientation and it is not an abnormality that people make it out to be. The associate adult claimant categori-, categorically stated that he accepts his wife’s bisexuality and will defend her in any way he can. This is the reason he stood,

[9]       MINOR CLAIMANT: [crying]

[10]     COUNSEL: Sorry to interrupt.

[11]     MEMBER: Yeah.

[12]     COUNSEL: I’m not sure where those noises are coming from but it might be Toronto. Is it possible for you to moot, mute Toronto?

[13]     MEMBER: Yes, it could be. I will try to see if I can disconnect from Toronto. Just bear with me for a moment, please.

[14]     COUNSEL: Or, if you feel comfortable, we can just listen to the decision and, and that can just be in the background, it’s fine. We’ll, we’ll be getting a, the written copy.

[15]     MEMBER: Okay. Yeah, so let’s just continue.

[16]     COUNSEL: Thank you.

[17]     This is the reason he stood up for her against his family and clan, when they went to see his family in [XXX] 2017. He was physically assaulted and sus- and sustained injuries in that attack. The principal claimant was threatened by the associate adult claimant’s family and clan, that she will be reported by them to the police and pressured the associate adult claimant to divorce her, as she is not fit to be a wife and mother. He stated that the police continued to pursue him, as they wanted him to report his wife’s and her friend’s whereabouts because they had committed a crime and he was privy to that information. The police also inquired from his employer about him, due to which he resigned from his job in [XXX] 2018. The associate adult claimant stated that his clan continued to pressure him to divorce the principal claimant and has ostracized him. He has been threatened by his clan that they will take away the minor male claimant and raise him on their own.

[18]     The Panel canvassed with the claimants why they did not seek protection in USA. The principal claimant testified that they were afraid of being separated from their children, as that is what was happening with the refugee claimants in that country. They waited for things to improve in the US, but decided to seek protection in Canada, as the political rhetoric against immigrants and refugees was deteriorating day by day. The Panel accepts the principal claimant’s explanation as reasonable given the political scenario in the US in 2018 and 2019 with refugee families. As such, the Panel does not draw any negative inference in the claimant’s failure to seek protection in USA. Based on their straightforward and frank testimonies, the Panel finds the principal claimant and adult associate claimant to be credible witnesses and accepts their allegations to be true.

Well-Founded Fear of Persecution and Risk of Harm

[19]     The persecution that the principal claimant faces has a Nexus to one of the five Convention grounds, which is membership in a particular social group; that is her sexual orientation and, therefore, this claim is assessed under Section 96. The Panel finds that the principal claimant and associate adult claimant have established that they have a well-founded fear of persecution due to her bisexuality, which is supported by objective evidence. The documentary evidence shows a high level of societal homophobia in Nigeria, and also that same-sex relationships are illegal in that country. The country documentation is consiten- consistent with the principal claimant’s past experiences and confirms her forward-looking fear of returning to Nigeria, which is as follows. Homosexuality and bisexuality are against the law in Nigeria. The United States Department of State report on Nigeria discusses some of the relatively recent developments in that country. According to the National Documentation Package, NDP Item 2.1, the 2014 Same-Sex Marriage Prohibition Act, which is referred to as the SSMPA, effectively renders all forms of activity illegal which is supporting or promoting lesbian, gay, bisexual, transgender or intersex rights. According to the SSMPA, anyone convicted of entering into a same-sex marriage or civil union may be sentenced up to 14 years imprisonment. A Response to Information Request of the Immigration and Refugee Board, which is as per ne- NDP Item 6.1, discusses the societal treatment and perceptions of homosexuals. According to the report, LGBTQ people are treated with disdain and disregard for their fundamental human rights. LGBTQ face being ostracized from the community and being subjected to acts of violence, stigma and reproach. The Response to Information Request also discusses the discrimination faced by sexual minorities in employment, accessing housing and accessing healthcare services. According to Section 214 of the Nigeria Criminal Code Act, and this is as per NDP Item 6.2, any person who has carnal knowledge of any person against the order of nature, is guilty of a felony, and is liable to imprisonment for 14 years. In this case, the associate adult claimant is aware of and is fully accepting of the principal claimant’s bisexuality, and is also privy to her friend’s sexual orientation, who he found being intimate with his wife in [XXX] 2017. As such, he would be liable for persecution at the hands of the government of Nigeria, according to Section 214, especially since the police in Nigeria expects the associate adult claimant to repay the whe-, to report the whereabouts his wife and her friend, so that they can be tried under the criminal law. Therefore, the Panel finds that he faces more than a mere possibility of persecution in Nigeria, if he were to return to his country. Especially since his family has threatened to go to the police against his wife’s bisexuality and he, himself, has initiated a move to file a police report at one point, against the principal claimant and her friend. The Panel also finds that the minor male claimant faces more than a mere possibility of persecution at the hands of state and non-state actors in Nigeria, by way of his membership in a particular social group; namely the child of parents facing persecution related to a Convention ground. Based on all the evidence before it, the Panel finds that the principal claimant, the adult associate claimant, and the minor male claimant, would face a serious possibility of persecution by both state and non-state actors if they were to return to Nigeria. The Panel finds that the minor female claimant does not face any risk to life or a possibility of punishment or cruel treatment, or torture in USA.

State Protection and Internal Flight Alternative

[20]     The Panel finds that state protection would not be rea- reasonably forthcoming to the claimants as one of the agents of persecution is the state. The laws prohibiting homosexuality apply throughout the country and so do the laws that fail to protect homosexuals from discrimination and persecution. Therefore, the Panel finds that the presumption of state protection has been rebutted. The country condition documents indicate that the high level of discrimination against homosexuals exists throughout the country, as such, the Panel finds that there is no viable IFA available to the principle claimant, adult associate claimant and the minor male claimant in this case, in Nigeria.

Determination and Conclusion

[21]     The Panel finds that the principal claimant, adult associate claimant, and the minor male claimant are Convention refugees as per Section 96 of the Act, and accepts each of their claims. The Panel also finds that the minor female claimant is neither a Convention refugee, nor a person in need of protection according to the provisions of the Act, and therefore rejects her claim. And that’s the end of the decision.

———- REASONS CONCLUDED ———-

Categories
All Countries Nigeria

2020 RLLR 64

Citation: 2020 RLLR 64
Tribunal: Refugee Protection Division
Date of Decision: February 26, 2020
Panel: Angelina Guarino
Counsel for the Claimant(s): Eric Freedman
Country: Nigeria
RPD Number: MB8-01156
Associated RPD Number(s): MB8-01171, MB8-01221
ATIP Number: A-2021-00800
ATIP Pages: 000030-000037

REASONS FOR DECISION

[1]       The principal claimant, [XXX], his wife, [XXX] (the female claimant), and their minor child, [XXX] (the minor claimant), are citizens of Nigeria. They are claiming refugee protection in Canada under section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).

[2]       The panel appointed the principal claimant as the designated representative of his minor child, [XXX].

[3]       The wife and minor child are basing their refugee protection claims on the principal claimant’s written account in the Basis of Claim Form (BOC Form).[1]

ALLEGATIONS

[4]       The principal claimant alleges that he fears his deceased father’s third wife, named [XXX], as well as his police officer half-brother, named [XXX], born from that relationship, who threatened to kill the male claimant and go after his family after he refused to give them the major share of the inheritance from his father.

[5]       According to the will, the inheritance was to be divided equally between all the children of the male claimant’s father, and [XXX] request was very poorly received by the other heirs. Following their refusal, [XXX] threatened to kill the claimant and his brothers and sisters.

[6]       The male claimant also alleges that two of his brothers were killed after receiving death threats from [XXX]. According to the male claimant, it was [XXX] who ensured that her threats were carried out. She was questioned by the police after the death of the male claimant’s brothers because people had witnessed her uttering threats. However, the investigation quickly ended as her son [XXX], a [XXX], intervened to have her released. The male claimant alleges that [XXX] has many influential contacts among the Nigerian authorities and that he is involved in shady dealings.

[7]       Consequently, the male claimant fears that he will be the next victim of violence at the hands of [XXX] and her son owing to this conflict, especially since the issue of the inheritance has not yet been resolved and the other heirs do not want to agree to an unequal split.

DETERMINATION

[8]       The panel concludes that the refugee protection claimants are “persons in need of protection” for the reasons set out below.

ANALYSIS

Identity

[9]       The panel is satisfied as to the refugee protection claimants’ identity, which was established, on a balance of probabilities, by means of the testimony of the adult claimants and by the submission on the record of the certified true copy of their respective Nigerian passports.[2]

Analysis under paragraph 97(1)(b)

[10]     In his BOC Form and during the hearing, the principal claimant stated that he feared being mistreated or even killed because of the conflict with his father’s wife and with his half-brother [XXX], a conflict involving the estate of his deceased father. He also feared that his agents of harm could go after members of his nuclear family, as the threats targeted them as well. Refugee protection claims involving a physical risk from family members in Nigeria because of an inheritance fall under subsection 97(1) of the IRPA since there is no nexus to the Convention.[3]

[11]     It is also clear that, in relation to the claimants’ fears toward Nigeria, this refugee protection claim does not involve any danger of the claimants’ being subjected to a danger of torture within the meaning of paragraph 97(1)(a) of the IRPA.

[12]     The panel has therefore analyzed this refugee protection claim under paragraph 97(1)(b) of the IRPA, that is, whether the claimants would be personally subjected to a risk to their lives or to a risk of cruel and unusual treatment or punishment if they were to return to Nigeria.

Credibility

[13]     The male claimant gave frank and sincere testimony before the panel about the conflict between [XXX] his half-brother [XXX], and himself, regarding the inheritance left by his deceased father.

[14]     First, the male claimant provided detailed information about the way the inheritance was split between his father’s three wives. Subsequently, he explained the reasons that led [XXX] to insist on an unequal  split–according to her, she was his father’s favourite wife–and  stated that she had demonstrated her desire to appropriate the largest share of the inheritance by not hesitating to threaten the other heirs. The male claimant provided details on relationship dynamics within his family and the difficulty he had getting along with his half-brothers on his father’s side.

[15]     The male claimant explained how the threats had escalated over time, with the murder of his two brothers. The male claimant also described the various means he had used to try to resolve the conflict. He testified that he had asked the police to intervene following the murder of his brothers, but said that the investigation had been sabotaged by the intervention of his half-brother, the [XXX]. The male claimant also asked the other heirs to agree to [XXX] demands in order to end the conflict, but they refused. The male claimant indicated that he had finally left the inheritance under the management of a company. This implies not only that it became more difficult for [XXX] and the claimant’s half-brother to appropriate the inheritance, but also that their desire for revenge grew.

[16]     The male claimant testified that, on [XXX] 2017, he moved with his wife and child to the home of an uncle in Ogun State, as he felt that his life was in danger in Lagos. Nevertheless, he was found by men sent by [XXX] and his half-brother [XXX]. On [XXX] 2017, the claimants were informed by neighbours that some men had been asking about them, and it was because of this suspicious visit that the claimants decided to leave Nigeria for good.

[17]     The principal claimant spontaneously answered every question he was asked. His answers were consistent not only with his written account but also with the various affidavits submitted in support of his claim.[4]

[18]     In addition to his credible testimony, the principal claimant provided several pieces of evidence to corroborate his allegations. He submitted into evidence his father’s will,[5] his brothers’ death certificates[6] and posters announcing their funerals,[7] the contract stipulating that the inheritance is being managed by a management company,[8] as well as evidence that his half-brother [XXX] is a [XXX].[9] The male claimant’s attempts to obtain protection from the Nigerian authorities following the murder of his brothers are corroborated by a police report.[10]

[19]     The panel notes that the claimants arrived in the United States on [XXX] 2017. They finally left that country on [XXX] 2018. The principal claimant specified that he did not claim asylum because of the hostile climate toward asylum seekers in the United States. The panel considers this an unreasonable explanation for the failure to claim asylum. Nevertheless, as the claimants had valid status and given the duration of their stay, which lasted a few months, the panel is of the opinion that this behaviour is not determinative to undermine the credibility of the alleged facts taken as a whole.

Objective basis of the fear

[20]     The objective documentation on Nigeria reports that violence related to inheritance issues is common. Indeed, in a European Union report, the Director of the Initiative for Equal Rights in Nigeria states that this is a major problem in Nigeria and that quarrels can happen between several family members; the violence that follows can go as far as killing.[11]

State protection

[21]     Objective documentation indicates that the Nigeria Police Force is perceived as corrupt and ineffective.[12] The reports also highlight problems in the judicial system, which is reported to be short-staffed, underfunded, ineffective, subject to political intervention, corrupt, and lacking training and resources.[13]

[22]     The panel also notes that the male claimant testified that he reported some of the incidents to the police. He submitted a police report[14] into evidence and testified about the time he went to file a complaint. He explained that the police officers questioned [XXX] but that they quickly released her. The male claimant thinks that [XXX] son, [XXX], himself a [XXX], may have bribed the police. The male claimant explained that he knew about his half-brother’s illegal trafficking in cars. The half-brother told the male claimant about his activities and influence within the police when he threatened him.

[23]     For all these reasons, the panel is of the opinion that the male claimant has established, through clear and convincing evidence, that he would not have access to adequate state protection.

Internal flight alternative

[24]     The panel considered the Jurisprudential Guide dealing with the various internal flight alternatives in major cities in southern and central Nigeria for claimants fleeing non-state actors.[15] Having considered the profile of the male claimant’s agents of harm, the analysis in the Guide is not applicable in this case.

[25]     The panel questioned the male claimant about the possibility of relocating to Port Harcourt in order to escape [XXX] and his half-brother [XXX]. Asked to explain why [XXX] and his half-brother would want to find him in the proposed IFA, the male claimant stated that they are motivated by their desire for revenge as well as by the fact that the male claimant is the last male heir standing in the way of management of the inheritance passing into the hands of his half-brother [XXX]. Asked about the ability of [XXX] and his half-brother to find him in Port Harcourt, the male claimant answered that, regardless of where he went in Nigeria, his agents of harm would be able to find him because of his half-brother’s duties as a [XXX] and his access to personal information banks. The male claimant’s agents of harm found him when he moved to his uncle’s home with his family, which demonstrates a strong and sustained interest in him. The principal claimant added that his agents of harm are capable of committing very violent acts, as they have demonstrated with the murder of his brothers.

[26]     The panel takes note of the male claimant’s testimony regarding the means at the disposal of his agents of harm. The panel has also taken into account their potential interest in finding the claimant with a view to eliminating him from the line of inheritance and taking revenge on him for standing in the way of their demands as well as for having filed a complaint with the police against [XXX] regarding the murder of his brothers.

[27]     Consequently, the panel is of the opinion that, on a balance of probabilities, the claimants face a risk to their lives or a risk of cruel and unusual treatment or punishment throughout Nigeria.

[28]     In light of the above and taking all the evidence into account, the panel is of the opinion that the claimants have established that, should they return to Nigeria, they would be personally subjected to a risk to their lives or to a risk of cruel and unusual treatment or punishment within the meaning of subsection 97(1) of the IRPA.

CONCLUSION

[29]     For all these reasons, the panel concludes that the refugee protection claimants are “persons in need of protection” and allows their refugee protection claim under paragraph 97(1)(b) of the IRPA.


[1] Document 1 — Basis of Claim Form.

[2] Document 1 — Information package provided by the Canada Border Services Agency and/or Immigration, Refugees and Citizenship Canada, formerly Citizenship and Immigration Canada.

[3] Njeru v. Canada (Citizenship and Immigration) (F.C., No. IMM-2258-09), Russell, December 16, 2009, 2009 FC 1281; Kang, Hardip Kaur v. MC.I. (F.C., No. IMM-775-05), Martineau, August 18, 2005, 2005 FC 1128.

[4] Document 4 — P-20 to P-23.

[5] Document 4 — P-13.

[6] Document 4 — P-15 and P-18.

[7] Document 4 — P-14.

[8] Document 4 — P-23.

[9] Document 5 — P-24: Nigerian [XXX] ID card for [XXX].

[10] Document 4 — P-16 and P-17.

[11] Document 3 — National Documentation Package on Nigeria, November 29, 2019; Tab 1.3: European Union, European Asylum Support Office, August 2017, EASO COI Meeting Report: Nigeria.

[12] Document 3, Tab 1.4: European Union, European Asylum Support Office, June 2017, EASO Country of Origin Information Report: Nigeria. Country Focus.
Document 3, Tab 16.2: United Kingdom, Home Office, 2016, Country Information and Guidance. Nigeria: Background information, including actors of protection and internal relocation. Version 2.0.

[13] Document 3, Tab 1.4: European Union, European Asylum Support Office, June 2017, EASO Country of Origin Information Report: Nigeria. Country Focus, p. 29.

[14] Supra footnote 10.

[15] Jurisprudential Guide, decision TB7-19851, May 17, 2018.

Categories
All Countries Nigeria

2019 RLLR 138

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


DECISION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[26]     Thank you very much.

[27]     COUNSEL: Thank you.

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

[29]     CLAIMANT: Thank you so much.

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

———- REASONS CONCLUDED ———-

Categories
All Countries Nigeria

2019 RLLR 38

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


— DECISION

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

ALLEGATIONS

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

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

IDENTITY

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

CREDIBILITY

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[19]     There is a legal test, which has two prove to be satisfied that the claimants would not face a serious possibility of persecution in the part of the country in which I found an IFA exists and conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable, in all the circumstances, including those particular to the claimants, for them to seek refuge there.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

— DECISION CONCLUDED

Categories
All Countries Nigeria

2019 RLLR 36

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

For the claim of the minor claimant [XXX]

Determination

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

Analysis

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

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

Conclusion

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

The claims of [XXX]

Determination

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

Analysis

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

[47]     That is the end of my decision.

—PROCEEDINGS CONCLUDED

Categories
All Countries Nigeria

2019 RLLR 35

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


— DECISION

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

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

ALLEGATIONS

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

DETERMINATION

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

ANALYSIS

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

Identity

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

Credibility

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

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

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

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

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

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

Nexus

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

Well-founded Fear

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

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

[16]     The adult claimant says,

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

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

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

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

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

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

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

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

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

[23]     Similarly, other sources explain that families of sexual minorities face stigmas; however, there are also cases where family members of sexual minorities face no risks at all. As such, it could be relative whether family members of sexual minorities face any risk from society, and it seems that whether or not family members of sexual minorities face risks depends on whether the person who is the sexual minority is public about their sexuality, is an activist who is widely known and whether the family members are openly in support of the person who is a sexual minority.

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

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

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

State Protection

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

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

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

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

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

— DECISION CONCLUDED

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

Categories
All Countries Nigeria

2019 RLLR 28

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


DECISION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[25]     Thereafter, the claimants fled to Canada.

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

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

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

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

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

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

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

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

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

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

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

[37]     State protection is not available for you.

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

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

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

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

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

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

[44]     Thank you.

[45]     So, we are off the record.

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

[47]     Thank you very much.

——— REASONS CONCLUDED ———-

Categories
All Countries Nigeria

2019 RLLR 27

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


DECISION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

———- REASONS CONCLUDED ———-