Citation: 2020 RLLR 120
Tribunal: Refugee Protection Division
Date of Decision: February 14, 2020
Panel: Harsimran Kaur
Counsel for the Claimant(s): Clémence Marie Camille Chevalier
Country: Nigeria
RPD Number: MB8-04564
Associated RPD Number(s): MB8-04594, MB8-04612
ATIP Number: A-2021-01106
ATIP Pages: 000007-000018
REASONS FOR DECISION
INTRODUCTION
[1] This is the decision of the Refugee Protection Division (the Panel) in the claims for refugee protection of [XXX] (the principal claimant), his wife [XXX] (the associated claimant), and their minor daughter [XXX] (the minor female claimant), citizens of Nigeria. They claim refugee protection in Canada pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the Act).[1]
[2] Prior to the start of the hearing, the Panel appointed the principal claimant as the designated representative for the minor female claimant.
[3] In reaching its decision, the Panel took into consideration the Chairperson’s Guidelines No. 4 on Women Refugee Claimants Fearing Gender Related Persecution.[2]
ALLEGATIONS
[4] The claimants’ detailed allegations are contained in the principal claimant’s Basis of Claim form (BOC)[3] and in the revised narrative, dated [XXX] 2020.The associated and the minor female claimant has adopted the allegations of the principal claimant.
[5] The principal claimant fears being initiated into a cult because of a promise made by his father, to the cult members, whereby the father had nominated the principal claimant as his successor in the cult.
[6] The principal claimant was unaware of his father’s cult membership and the promise. During his father’s burial ceremony, on the [XXX] 2010, while the principal claimant and his family were waiting for the Imam to perform the prayer, three cult members, dressed in traditional cult attire, suddenly arrived in his house and demanded to perform the burial as per their own traditions and left after singing some religious incantations and this was the first time that the principal claimant learnt of his father’ s cult association.
[7] On the principal claimant’s wedding night, on [XXX] 2014, five cult members came to the house of the principal claimant and gave him a parcel which revealed that he has been promised by the father to the cult and that he should prepare himself for the initiation otherwise dire consequences await him.
[8] The same cult members came back again on the naming ceremony of the minor female claimant on [XXX] 2015 and reminded the principal claimant that they hope his next child is a male child so that they could offer the male child as a sacrifice and initiate the principal claimant into the cult.
[9] The principal claimant unequivocally told them about his disinterest in becoming a cult member and shortly thereafter, he started receiving threatening calls, which continued despite the claimants’ relocation from Ibadan to Oshogbo in Osun State.
[10] Besides the cult members, the claimant’s also fear [XXX], the current wealthy and influential family head with strong business ties, who has been strongly forcing and pressuring the claimants to perform Female Genital Mutilation (FGM) on the minor female claimant as per the traditional beliefs to uphold the family dignity and honour.
[11] [XXX] made two unsuccessful kidnapping attempts on the minor female claimant, the first being on [XXX] 2017 and the second on [XXX] 2017.
[12] The principal and the associated claimant further allege that they are both being personally targeted by [XXX] and his henchmen because of their non-compliance with the practice of FGM.
[13] Fearing for their lives, the claimants left Nigeria on [XXX] 2017, were in the United States (US) until [XXX} 2018 and claimed asylum upon arrival in Canada.
DETERMINATION
[14] The Panel has considered all of the evidence and finds that the claimants have established that they face a serious possibility of persecution under section 96 of the IRPA, for the minor female claimant on the basis of her membership in a particular social group, namely girls fearing female genital mutilation (FGM) and for the principal and the associated claimant on the basis of their membership in a particular social group – family, particularly, Nigerian parents refusing to subject their daughter to FGM. Accordingly, the Panel concludes that they are all “Convention refugees” pursuant to section 96 of the Act.
ANALYSIS
Identity
[15] The claimants’ personal and national identities as citizens of Nigeria are established, on a balance of probabilities, by their testimony and by the documentary evidence on file, including copies of their Nigerian passports.[4]
Nexus
[16] With respect to the female minor claimant, the Panel finds that there is a link: between her fear and one of the five Convention grounds, as a member of a particular social group of women or girls fearing FGM in Nigeria. For the principal and the associated claimant, as the parents of the minor female claimant, there is a link with their membership in a particular social group, family. Accordingly, their claims have been assessed under Section 96 of the Act.
Credibility and subjective fear
[17] Testimony provided under oath is presumed to be truthful, unless there are reasons to doubt its truthfulness.[5] In the present case, the Panel has no such reason. The Panel finds the claimants to be credible witnesses and believes, on balance of probabilities, the key allegations of their claim. Their testimony was spontaneous, straightforward, direct and internally coherent with the documentary evidence on file and there were no significant contradictions, inconsistencies or omissions between the written and oral testimony. They were both spontaneous in their answers and the Panel did not find that they tried to embellish or exaggerate their narratives.
FGM of Minor Female Claimant
[18] The claimants testified in detail about the pressure and threats they received from the family head [XXX], to have their daughter subjected to FGM, as well as the importance of FGM to the family of principal claimant. The principal claimant credibly alleges that he comes from a family that adheres to traditional beliefs regarding performing FGM on every girl child of the family from the age two (2) and older.
[19] The principal claimant provided a comprehensive testimony of the events as they unfolded starting from [XXX] 2016 until the claimants’ departure from Nigeria. He testified that he was invited by [XXX] for a family meeting on [XXX] 2016, and it was during this meeting, the family members offered to the principal claimant the choice of choosing a date for performing FGM on the minor female claimant and when he refused to pick a date for the circumcision, [XXX] called the principal claimant towards the end of [XXX] 2016 and told the principal claimant that [XXX] 2017, is the date fixed for the circumcision of the minor female claimant.
[20] The principal claimant further testified that when he did not take the minor female claimant for circumcision on the fixed date, the family members namely [XXX] and [XXX], at the behest [XXX], attempted to kidnap the minor female claimant from her house on [XXX] 2017. The associated claimant credibly testified how she was slapped on her ear by [XXX] while she was trying to rescue the minor female claimant from the kidnapper and that the whole situation was defused when their neighbor, [XXX], interjected to save the minor female claimant.
[21] The claimants’ testimony is further corroborated by the affidavit of [XXX][6], their neighbor and the Panel accords full probative value to the said document.
[22] The principal claimant went on to explain that out of fear they decided to relocate to Oshogbo, Osun State but on [XXX] 2017, [XXX], posing to pick the minor female claimant from her school, went to the school in an attempt to kidnap her and the situation was brought under control only when the proprietor of [XXX] School called the principal claimant, seeking his permission to allow the female minor claimant to go with [XXX]. The principal claimant further described how [XXX] was chased away by the school authorities after the principal claimant refused to give his consent allowing [XXX] to pick minor female claimant from the school. The associated claimant testified that she too got a call from the para educator of the minor female claimant, asking if the associated claimant is aware that the minor female claimant will be picked by [XXX]. The claimant’s oral testimony is keeping in line with their written testimony and is further corroborated by the letter from the proprietor of [XXX] School[7]. The Panel accords full weight to this document.
[23] The principal claimant further testified that on [XXX] 2017, [XXX] called him and unambiguously told him that either they should bring the minor female claimant to the family or the family will eliminate them in order to perform the circumcision of the minor female claimant, thereby protecting and upholding the tradition of the family. From that time forward, the claimants realized that they would not be safe in Nigeria and they ramped up their efforts to leave the country. The principal claimant’s testimony is corroborated by the affidavit of his mother-in-law[8] and his aunt[9].
[24] Thus, in light of the two failed kidnapping attempts of minor female claimant by [XXX] and the threatening phone call on [XXX] 2017, the Panel concludes that, on balance of probabilities, [XXX] is interested in performing FGM on the minor female claimant.
Objective basis
[25] The principal claimant’s allegations are consistent with the objective documentary evidence on FGM in Nigeria. The documentary evidence indicates that the practice of FGM ‘continues to thrive’ and is widespread in Nigeria, such that several thousand girls and women are subjected to it, despite the passing into law of the Violence against Person’s (Prohibition) Act (VAPP)[10].
[26] The documentary evidence states that decision to subject a girl to FGM in Nigeria is up to the girl’s parents.[11] Though the tradition varies from one ethnic tribe to another, but the evidence indicates that the involvement of family members is a common feature.
[27] According to the said documentary evidence[12], parents are free to oppose the rituals but then it goes on to explain that refusals come with consequences such as ostracism, stigmatization, blackmailing, denial of intracultural benefits and physical abuse.
[28] The principal claimant testified that [XXX] and other members of his family believe that if a girl is not circumcised, she will grow up to be a prostitute and will bring defame to the family and that if anything untoward happens in the family, for instance, if there is a death in the family or somebody has an accident, or someone loses a job, has a broken marriage or if somebody’s child failed an exam, the claimants will be blamed for the unfortunate events which will give [XXX] and the family an impetus to hunt down the claimants.
[29] Thus, the Panel concludes, on balance of probabilities, that [XXX] and other family members are capable of forcing FGM on minor female claimant despite the opposition of the principal and associated claimant.
STATE PROTECTION
[30] For the reasons below, the Panel finds that the claimants have rebutted the presumption of state protection with clear and convincing evidence that the state of Nigeria would be unable or unwilling to provide the claimants with adequate state protection.
[31] The principal claimant was asked if he had made a police complaint about the two failed kidnapping attempts of the minor female claimant by [XXX]. He testified that making a police complaint would have yielded no results as [XXX] is a wealthy businessman, is politically well-connected and would have used the clout to get away with the complaint. The principal claimant went on to explain that considering it’s a family matter, police would have been reluctant to intervene had he complained.
[32] The Panel finds the principal claimant’s explanation reasonable. Moreover, the objective evidence also indicates that the police response to traditional or customary matters is typically non-interventionist. The research provides that “in practice, people cannot necessarily rely on the police” and it is the custodians of cultural or traditional rites that ultimately determine the fate of the individual”.[13]
[33] The Violence against persons (Prohibition) Act, 2015, is the federal law attempting to prohibit FGM across the whole county. The VAPP Act aims at eliminating gender-based violence in private and public life by criminalizing and setting out the punishment for acts including rape (but not spousal rape), incest, domestic violence, stalking, harmful traditional practices, and FGM. However, the VAPP Act is only in effect in the Federal Capital Territory, and as such, the remaining states must pass legislation to implement it across the country.[14] The documentary evidence further states that state governments have, to date, been slow to respond to the introduction of the VAPP Act. As of June 2018, only 13 states had adopted anti-FGM legislation.[15]
[34] Despite the legislation, however, the documentary evidence indicates that the practice of FGM continues to thrive in Nigeria.[16] There have been no prosecutions of perpetrators of FGM in Nigeria since the passing of the legislation.[17] The documentary evidence also provides that it is extremely difficult for women and girls to obtain protection with respect to FGM, and that there is widespread community support for these practices and the traditional attitude of police help to support them.[18] Accordingly, the Panel finds that despite there being laws prohibiting FGM in Lagos and Abuja and in certain other states, these laws are not being enforced such that the claimants could reasonably expect adequate state protection from FGM in Nigeria.
[35] Given the evidence, the Panel finds, on a balance of probabilities, that adequate protection would not be provided to the minor female claimant or to the claimants for objecting to the practice, in Nigeria.
Internal Flight Alternative (IFA)
[36] At the hearing, the Panel identified Abuja, Port Harcourt, and Lagos as potential IFA locations (together, the “IFA locations”). However, the Panel finds that the claimants face a serious possibility of persecution throughout Nigeria. The Panel has considered the Jurisprudential Guide in the Refugee Appeal Division (RAD) decision TB7-19851 but after careful consideration, the Panel does not view the circumstances of this case as an appropriate one to apply Jurisprudential guide given the far reach and influence of [XXX].
Means available for [XXX] to find claimants in Port Harcourt, Abuja and Lagos
[37] The principal claimant testified that [XXX] has an [XXX] business which is operated from Port Harcourt, has a wife, kids and a half-brother in Port Harcourt and that the claimants can run into them in a mall, hospital, park or any other public place and there could also be a possibility of [XXX] kids and minor female claimant attending the same school. Because of all this, it will be very easy for [XXX] to find the claimants in Port Harcourt. The principal claimant further credibly alleged that [XXX] can also use power and connections to track down the claimants in Port Harcourt.
[38] Furthermore, the principal claimant testified that he has many family members in Abuja, with whom he can have a coincidental encounter at a bank, shopping mall or a gas station and then they can always let pass [XXX] know that claimants are in Abuja who can then kill or harm them or kidnap the minor female claimant.
[39] The principal claimant also explained that since Lagos is close to Ibadan and he has brothers and sisters living there, it will be easy for [XXX] to track him down there. He provided the example of how after the shop of one of his brother’s got burnt, the claimants were blamed for the torching of the shop because of their refusal to comply with traditional practice of performing FGM on the minor female claimant. He went on to explain further that incidents like these can be an impetus for the extended family to disclose the claimant’s location in Lagos to [XXX] if the claimants relocate to Lagos.
[40] Moreover, after their relocation to Oshogbo in [XXX] 2017, [XXX] was not only able to find the claimants but also attempted to kidnap the minor female claimant on [XXX] 2017.
[41] Hence, the Panel concludes that, on balance of probabilities, [XXX] has the means to find the claimants in Port Harcourt, Abuja and Lagos.
Motivation to find the claimants
[42] The principal claimant explained that [XXX], despite considering himself to be a guardian of traditional and family practises, has a vested interest in performing FGM of the minor female claimant since [XXX] wants to be a king and the kingmakers might use against [XXX] the fact that a girl from his own family has not been circumcised and that if he cannot make his own family adhere to their traditional beliefs and customs, [XXX] cannot be a good king.
[43] The principal claimant’s testimony is further buttressed by the affidavit from [XXX][19], mother-in-law of the principal claimant and the affidavit of [XXX][20], aunt of the principal claimant. Both these affidavits mention the constant threats hurled at them by [XXX] because of their alleged complicity with the claimants, vis-à-vis their refusal to subject the minor female claimant to FGM.
[44] Hence, the Panel concludes that, on balance of probabilities, [XXX] has the means and motivation to find the claimants in Port Harcourt, Abuja and Lagos.
[45] Thus, the Panel concludes that because the agent of persecution has the means and the motivation to find the claimants anywhere in Nigeria, there is no viable IFA in Nigeria for them. Furthermore, the Panel notes the absence of state protection for traditional practices and FGM throughout Nigeria.
[46] Accordingly, the Panel finds that the possibility of an IFA fails on the first prong.
CONCLUSION
[47] Having considered and assessed the evidence in totality, the Panel concludes that the minor female claimant has established a serious possibility of persecution in Nigeria based on her membership in particular social group, Nigerian female fearing FGM.
[48] The Panel also concludes that the principal and the associated claimant have established a serious possibility of persecution in Nigeria based on their membership in particular social group, namely family; in particular, Nigerian parents refusing to subject their daughter to FGM.
[49] The Panel finds that the claimants are Convention refugees within the meaning of Section 96 of the Act.
[50] The Panel, therefore, accepts their claims.
[51] Since the Panel has found the claimants to be Convention Refugees within the meaning of Section 96 of the Act, the Panel does not deem it necessary to make an analysis of the fear of the principal claimant stemming from his refusal to be initiated in a traditional Yoruban cult, under section 96 and subsection 97(1) (b) of the Act.
[1] Immigration and Refugee Protection Act, S.C. 2001, c, 27, as amended.
[2] Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution. Effective date: November 13, 1996. Guidelines issued by the Chairperson pursuant to Section 65(3) of the Immigration Act.
[3] Document 1 — Basis of Claim forms (BOC).
[4] Document 3 — Idem.
[5] Moldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.).
[6] Document 4 — Exhibit P 10: Affidavit of [XXX].
[7] Document 4 — Exhibit P-6: Letter from [XXX] School.
[8] Document 4 — Exhibit P-7: Affidavit of [XXX].
[9] Document 4 — Exhibit P-8: Affidavit of [XXX].
[10] Document 3 — National Documentation Package (NDP), Nigeria, 29 November 2019, tab 5.21: Response Immigration and Refugee Board of Canada. 25 January 2016. NGA105404.E.
[11] Document 3 – NDP, Nigeria, 29 November 2019, tab 5.12: Response to an information request. Immigration and Refugee Board of Canada. 29 October 2018. NGA106183.FE.
[12] Idem.
[13] Document 3 — NDP, Nigeria, 29 November 2019, tab 10.8: Response to an information equest. Immigration and Refugee Board of Canada. 14 November 2016. NGA105659.E.
[14] Idem.
[15] Document 3 — NDP, Nigeria, 29 November 2019, tab 5.22: Country Profile: FGM in Nigeria. 28 Too Many. October 2016.
[16] Supra, note 11.
[17] Supra, note 13.
[18] Idem.
[19] Document 4 — Exhibit P7: Affidavit from [XXX].
[20] Document 4 — Exhibit P8- Affidavit from [XXX].