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2019 RLLR 214

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

REASONS FOR DECISION

INTRODUCTION

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

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

DETERMINATION

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

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

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

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

Allegations

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

Allegations in the BOC

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

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

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

Allegations in the amended narrative

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

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

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

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

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

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

Analysis

Identity

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

Credibility

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

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

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

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

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

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

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

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

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

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

State Protection

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

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

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

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

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

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

Internal Flight Alternative

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

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

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

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

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

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

Conclusion

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

[37]     The panel accepts their refugee claim.

THE CLAIMANT: XXXX XXXX XXXX

Allegations

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

Allegations in BOC

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

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

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

Allegations in amended narrative

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

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

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

Analysis

Identity

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

Well-founded fear of persecution / Risk of harm

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

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

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

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

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

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

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

Conclusion

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

[54]     The panel rejects her refugee claim.

Luna-Martine Jean

June 19, 2019

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

2 Document 5 – Exhibit C-6.

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

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

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

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

7 Ibid, tab 5.12.

8 Supra note 3.

9 Ibid.

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

11 Supra note 6.