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 ———-