Citation: 2021 RLLR 47
Tribunal: Refugee Protection Division
Date of Decision: January 12, 2021
Panel: Joseph Berkovits
Counsel for the Claimant(s): Ugochukwu Udogu
Country: Nigeria
RPD Number: TB8-31369
Associated RPD Number(s):
ATIP Number: A-2022-01594
ATIP Pages: N/A
REASONS FOR DECISION
[1] Mr. XXXX XXXX, a 44-year-old citizen of Nigeria, has claimed refugee protection pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act, (the IRPA).
[2] The panel has considered the Chairperson’s Guideline 9: “Proceedings before the IRB involving Sexual Orientation and Gender Identity and Expression.”1
[3] Pursuant to paragraph 17(c) of the Immigration and Refugee Protection Act and according to Section 29 of the Refugee Protection Division Rules, the Minister informed the Refugee Protection Division that he wished to intervene in this claim by making observations and submitting evidence. The Minister’s submissions formed Exhibit 42. The Minister’ s representative intervened in writing only.
DECISION
[4] For the reasons given below, the panel finds that the claimant is a Convention refugee.
ALLEGATIONS
[5] The claimant’s allegations are, in summary, that due to his bisexual sexual orientation, as well as his political opinion, he faces violence, arrest and imprisonment in Nigeria.
[6] The claimant, who has been an active member of an opposition party, alleges that after a same-sex relationship with a prominent member of another party- the governing party ended, his former partner organized reprisals against him, which resulted in the claimant being shot at and injured by people sent over by the governing party, threatening phone calls, and ultimately, a police investigation on the grounds of the claimant’s bisexuality.
[7] On XXXX XXXX, 2018, the claimant was able to fly from Nigeria to Canada on an assumed identity, and on November 24, 20218 he claimed asylum.
[8] The claimant alleges that should he return to Nigeria, he faces criminal charges for being bisexual, and that he also faces extra-judicial violence at the hands of political adversaries.
NEXUS
[9] Given the claimant’s allegations, his claim will be assessed pursuant to section 96 of the IRPA, with the nexus being a person of a particular social group, as a bisexual man. While the claimant’s allegations about his political opinion also forma nexus to section 96 of the IRPA, because of the strong connection between his allegations about his sexual orientation and his political opinion, his claim will primarily assessed on the grounds of membership in a particular social group.
IDENTITY
[10] While the claimant flew into Canada under an assumed identity, the claimant’s personal identity as a citizen of Nigeria has been established by a certified copy of his true passport. Also, biometric information shared between Canada and the United States reveals that his identity is as claimed in his application.3
[11] The panel therefore finds that the claimant has established his identity, on a balance of probabilities.
CREDIBILITY
Introduction:
[12] When a claimant swears that certain facts are true, this creates a presumption that they are true, unless there is valid reason to doubt their truthfulness. Hence, as a corollary, there is no general legal requirement for a claimant to corroborate sworn testimony that is uncontradicted and otherwise credible.
[13] In terms of the claimant’s general credibility, and in light of the evidence below, the panel has found him to be a credible witness and the panel therefore accepts what he has alleged in his oral testimony and in his basis of claim form.
The Minister’s Intervention:
[14] It was the position of the Minister that “the claimant has not been consistent in his answers to a point where it is difficult to discern the truth of his statements.”4 The panel put these concerns to the claimant, and will consider each one separately below;
[15] Firstly, the Minister submitted that, “The claimant did not declare that he was denied a US visa in his Schedule A, even though he clearly admitted that fact in his last US NIV application.” According to the claimant, he did verbally inform the officer at the airport in Toronto that he had applied for a US visa after the officer asked if he if had or had not. He further testified that he was under the impression that the officer wrote his answer down and that he had no intent to be misleading. It was the submission of the claimant’s counsel that the failure to complete Schedule A correctly constituted an error or a miscommunication rather than an intentional effort to mislead Immigration. Ultimately, the panel agrees and does not find that the failure to properly fill in Schedule A, undermines the claimant’s credibility in an substantial way, especially in light of the claimant’s testimony, which the panel accepts as credible, that he thought that his verbal answer to the officer at the airport was written down and kept on record. As such, the panel does not find that this concern, in and of itself, is sufficient to undermine the claimant’s credibility.
[16] Secondly, the Minister submitted that, “The claimant declared that he travelled alone and also inferred that he travelled with someone. The Minister does not believe that both statements can be true.” The claimant confirmed at the hearing that he travelled alone from Abuja, stating that he last saw the agent assisting him when he got onto the plan in Abuja. However, in the narrative attached to his Basis of Claim, the claimant does state that “we transited in Cairo International Airport in Egypt. We spent some hours in Cairo Airport before we now took off from Cairo Airport on that same day of XXXX XXXX 2018. Then we arrived in Toronto Canada International Airport on the XXXX XXXX 2018 and filed for asylum.”5 At the hearing, the claimant testified that by using “we” in the previous sentences, he merely meant to refer to the other passengers on the airplane, meaning that he was not the only person on the airplane. The panel accepts this explanation as reasonable, as the usage of “we” does not have to interpreted literally and can reasonably be employed in a more colloquial fashion. As such, and in light of the claimant’s explanation, the word “we” does not need to be interpreted with such precision in this context, especially in light of the fact that while the claimant speaks English, it is not his first language. Overall, the panel does not find that anything substantial turns on this issue in terms of the claimant’s overall credibility.
[17] Thirdly, the Minister submitted that “The claimant swore by declaration that he came to Canada on XXXX XXXX 2018 while officer notes clearly show that he arrived and was examined on XXXX XXXX 2018.” After hearing the claimant’s testimony at the hearing, as well as referring to the documentary evidence in Exhibit 16 , the panel is not persuaded that this issue is substantially affects the claimant’s credibility. The claimant’s explanation for the discrepancy was clear and reasonable. According to the claimant, he arrived at the Toronto airport on XXXX XXXX , 2018, and made his claim for asylum at that point. However, he returned for a second interview at the Immigration Officer on December 3, 2018. These interview notes are included in Exhibit 1 and are dated December 3, 2018.7 The claimant subsequently filed his Basis of Claim Form on December 17, 2018, and then was given up to two weeks to file his narrative, which he did by December 28, 2018. At the time that the claimant filed his narrative, he included the declaration referenced by the Minister, on December 17, 2018. At this point, however, according to the claimant’s counsel, a template was used that referenced to the date that the claimant attended his second interview, which was December 3, 2018, rather than his date of entry and initial entry to Canada, which was XXXX XXXX, 2018. The claimant’s counsel submitted that this was essentially a clerical error due to the multiple dates involved and did not represent an attempt to mislead the Minister. The panel does not find that the claimant’s credibility can be undermined in any substantial way by an incorrect date being given in a statutory declaration that the panel is persuaded was done inadvertently, and that, in and of itself, does not in the panel’s view, speak to the merits of the claim in any meaningful way.
[18] Fourthly, the Minister submitted that “The claimant submitted a BOC narrative which cited sexual orientation as the basis of his claim as well as political opinion. This differs from what he told the examining officer upon arrival to Canada.” At the hearing, the claimant testified that as a person coming from a country where bisexuality is criminalized, he initially felt frightened to disclose his bisexuality, for fear that he would be turned back to his home country immediately. Even though the claimant is not unsophisticated, and is a XXXX in Nigeria, he testified that he came from a closed and homophobic society where one’s bisexuality is kept secret. He testified that he felt fear at the prospect of talking to a government official about his sexuality, and the fact that she was wearing a uniform made him feel particularly scared. However, it should be noted that by the second interview with the Immigration Office, on December 3, 2018, which was well before the claimant submitted his narrative in December 28, 2018, the attending officer’s notes do reflect the claimant’s answer that he is bisexual.8
[19] The panel accepts the claimant’s explanation for his initial reluctance to disclose his bisexuality to the Immigration Officer as reasonable, particularly given his objective country conditions, where bisexuality is criminalized, and as will be discussed in a separate section below. The panel also notes section 7.4 of the Chairperson’s Guideline 9: “Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression,” wherein it is stated that: “Decision-makers should examine whether there are cultural, psychological or other barriers that may reasonably explain [an] inconsistency. For instance, it may be difficult for an individual who has concealed their SOGIE to disclose and discuss it with government authorities at a port of entry, which may give rise to an inconsistency between information from the port-of-entry interview and testimony at a hearing.”9 In this instance, the claimant did, however, disclose his sexual orientation fairly soon after his initial port of entry interview, by December 3, 2018, and well before he filed his Basis of Claim Narrative on December 28, 2018. Overall, the panel finds that claimant’s credibility is not undermined in any substantial way by this issue raised by the Minister.
[20] Fifthly, the Minister submits that it is difficult to know what is the truth, and what is part of an evolving narrative.” The panel understands this submission to be connected to the previous submission which the panel has already addressed in the previous paragraph, but also to engender a more general concern with the claimant’s credibility. As will be seen in the analysis below, during the course of a lengthy hearing, the panel found the claimant’s testimony about the core of his claim, in particular as it related to his sexual orientation, to be consistent both during the course of the hearing, and to be consistent with his Basis of Claim, as well as well supported by corroborating documents. While, as will be discussed below, his allegations on the basis of his political opinion were less central to his section 96 claim, there was no reason for the panel to find that the claimant was being untruthful about them. Overall, and for the reasons below, however, the panel found the claimant to be truthful and credible.
The Claimant’s Sexual Orientation:
[21] According to the claimant, he first realized that he had feelings for other males when he was in secondary school and felt a ‘chemistry” with a classmate named XXXX and this evolved into a physical relationship. After graduation, the two were unable to keep in touch. The claimant detailed other relationships with men that followed, as well as his unhappy marriage with his wife.
[22] In 2016, during the course of his work as a political organizer for the leading opposition party in Nigeria, the PDP, the claimant met an eventual partner, XXXX, a prominent and powerful organizer for the governing party, while the two campaigning for their respective candidate. The claimant testified that he “could not resist a handsome man,” and at the claimant’s initiative, the two started dating clandestinely. However, according to the claimant, XXXX started demanding that the claimant switch political parties and began exhibiting controlling behaviour overall, something that the claimant found frightening. The claimant stated that he commenced seeing another man XXXXS who became the claimant’s partner to this day, although the claimant’s partner is still in Nigeria. To help corroborate his testimony about their relationship, the claimant submitted photos and print-outs of numerous text messages exchanges between himself and XXXX.10
[23] Soon after the claimant commenced this new relationship, however, XXXX found out, and in October, 2017, sent “thugs” over to a private party he was having with his new partner, and this resulted in the claimant being shot in the leg. Being afraid to go to the hospital for fear of a police report, which he testified would result in the authorities finding out about the bisexual relationships he was having, he went to stay with a traditional medical practitioner who would not report the bullet wound to the police. The claimant submitted into evidence two photographs of the bullet wound to his leg.11 However, the claimant’s wife found him some three or four days later, still being treated by the practitioner. According to the claimant, his wife, instead of being sympathetic to him, became very angry, confronted him about his bisexuality, reported him to their pastor, and demanded that the claimant call him. The claimant testified that he was too afraid and ashamed to call his pastor. Nevertheless, the claimant’s pastor ultimately called the claimant and informed him that his wife was leaving him.
[24] Only a few months later, by January, 2018, the claimant received a phone call from a police inspector from his home city of Benin City, notifying him of a complaint that had been made against him on the grounds of his sexual orientation, and ordering him to turn himself in. In the meantime, the claimant started receiving threatening phone calls from either XXXX or his friends. According to the claimant, the fact that XXXX was also bisexual did not make him any less of a danger to him, because XXXX was so well connected politically, that he was able to insulate himself from homophobia more than the claimant could, who was no as powerful and well-connected.
[25] As a result of these threats from both the police as well as from his former partner, XXXX the claimant decided to leave Nigeria, using the services of an agent who was able to obtain travelling documents and a passport of a man with the same last name as the claimant. The claimant testified that he keeps in touch with his cousin in Nigeria, who informed him that the police are still looking for him. The claimant’s fear of the police was understandable. As will be discussed further below, the passing of the Same Sex Marriage Prohibition Act in 2014 has, according to an objective observer, resulted in “increased harassment and threats against” LGBTQ people. “According to [Human Rights Watch], the law had become a tool used by police and members of the public to legitimize human rights violations against LGBTI persons such as torture, sexual violence, arbitrary detention, extortion, and violations of due process rights.”12
[26] Since coming to Canada, the claimant has been able to participate in LGBTQ positive events, such as social activities sponsored by the 519 Community Centre, which he attended prior to the pandemic. The claimant provided corroboration of his participation in LGBTQ activities by means of a letter from the LGBTQ Refugee Programme at the 519 Centre, as well as his attendance records at a Newcomer Training Programme at the 519 Centre, as well as his membership card in their “Among Friends Program.”13
The Claimant’s Political Opinion
[27] While the claimant also submitted that he was being persecuted as a result of his political opinion, the panel finds that his political opinions were less central to his section 96 claim than his membership in a particular social group. Nevertheless, the claimant gave credible evidence about his political activities. The claimant met his previous partner through his political activities, and the claimant demonstrated credible knowledge about this aspect of his life. The claimant established that he belonged to an opposition party, submitted into evidence his party membership card14, gave credible evidence that demonstrated that he was well-versed in his country’s political situation and in his country’s political issues, and described how his former partner’s political party was adversarial to his own.
[28] However, the claimant’s evidence about his political activity, in the panel’s view, was more in support of allegations about his persecution on the grounds of his bisexuality rather than helping to establish that his political opinion, in their own right, were grounds for his persecution. The claimant’s political opinions are relevant inasmuch as they help explain how and why his previous partner, who is powerful and well-connected, exposed him to danger and persecution, but the claimant’s political opinions and their connection to a nexus ground are otherwise not sufficiently delineated to stand on their own as a grounds for persecution. Ultimately, the panel finds that the reason for the dispute between the claimant and his former partner is just as much grounded in his sexual identity as in his political opinion, and further analysis of his political opinion is not necessary.
[29] To be clear, however, the panel does not find that that the claimant’s evidence about his political activity undermined his credibility overall, just that his evidence on these grounds was not as central to his claim to protection as his sexual orientation.
Conclusion:
[30] The panel therefore finds that the claimant’s allegations about his membership in a particular social group have been, on a balance of probabilities, credibly established. His testimony about his relationships with men rang true, and his most recent relationship was corroborated by multiple text messages, as already referenced above.
[31] The panel therefore finds that on a balance of probabilities that the claimant’s subjective fear of persecution is both credible and that it poses an ongoing threat.
OBJECTIVE EVIDENCE:
[32] The claimant’s experience of persecution at the hands of his community and the state is not unique to him but is shared by the LGBTQ community in Nigeria at large. As Amnesty International has observed, “Human rights abuses continue to be committed against people suspected of engaging in same-sex relations or for having a non-conventional gender identity.”15 As such, the objective country evidence supports the claimant’s allegations that LGBTQ people are at a serious risk of persecution by the state, which criminalizes same sex relationships.
[33] Because same sex acts are criminalized in Nigeria, pursuant to the Nigerian Federal Criminal Code, anyone having physical relations with a member of the same sex is considered to be acting “against the order of nature,” and to be committing an “unnatural offence,” and is subject to a 14-year prison term. The Same Sex Marriage (Prohibition) Act also criminalizes same sex marriages and civil unions, as well as gay clubs, gay organizations, meeting of gay people, and the support of LGBT organizations. For example, anyone who supports or participates in pro-LGBT organizations is liable to a 10- year prison term.16
[34] Furthermore, while the Constitution of Nigeria “offers general legislative guarantees to the rights to life, privacy, association, assembly, dignity, and freedom of expression…. there is no legislation explicitly protecting sexual minorities from targeted violence or discrimination.”17 The situation of LGTBQ people is made even more difficult by their treatment by the police, who arrest LGBTQ on the basis of “physical appearances, or on other pretexts,” blackmail and extort them, and mistreat them in custody.18
[35] As the claimant himself has experienced by the attitude towards him and his family by his community, acceptance of LGBTQ people in Nigerian society is very low. According to a survey conducted as recently as in 2015, 87 percent of Nigerians “said that they would not be willing to accept a family member who is homosexual…. And 81 percent did not believe that homosexuals should have the same rights as other Nigerians.”19
[36] As one objective study has concluded, “The roles of discriminatory laws are evident in the forms of violence perpetrated by both state and non-state actors. Impunity is one of the driving forces of the continued violation of [LGBTQ] people in Nigeria. [LGBTQ] people find it extremely difficult to approach relevant government agencies for redress, for fear of stigma, more violence and discrimination…. Actions by non-state actors are further validated by the behaviour of state actors who also extort [LGBTQ] people by evoking fear of legal reprisal…. This is not surprising given the fact that these government institutions are often the perpetrators of harm themselves or act in collusion with non-state actors.”20
[37] Overall, the panel finds that there is a well-documented basis for the claimant’s objective fear of persecution on the grounds of being a bisexual man.
STATE PROTECTION
[38] The principal claimant’s fear that, as a bisexual man, is without adequate state protection from homophobia is corroborated by the objective evidence. Not only does the objective evidence demonstrate that LGBTQ people are without adequate state protection, it also demonstrates that in many instances the state is itself a persecutor of LGBTQ people. As one objective report has observed, “The initiative for Equal Rights (TIER) noted in its annual report that ‘in 2017, there were several instances of mass arrests based on perceived sexual orientation… a number of cases of arbitrary arrests and unlawful detention were perpetrated by the police.”21
[39] Also, “Sources explained that sexual minorities tend not to file reports with authorities out of fear of reprisals from authorities… [S]exual minorities who report abuse or discrimination are ‘ridiculed’ by authorities…. The Amnesty International representative indicated that the judicial system is not effective in investigating crimes committed against sexual minorities and ‘[i]n most cases, crimes committed against sexual minorities are not even investigated, [and] vigilante group attacks are not often reported due to fear of repercussions and further stigmatization by law enforcement officers.”22 Furthermore, it has been noted by objective observers that “there is no government-supported helpline for sexual minorities who face violence.”23
[40] Given the objective evidence of country conditions discussed above, as a bisexual man, the panel finds that adequate state protection would not be available to him.
INTERNAL FLIGHT ALTERNATIVE
[41] As the panel finds that an agent of persecution is the state by virtue of sexual minorities being criminalized, the panel finds that there is no place in Nigerian where the claimant could reside safely. The panel also notes that the claimant is politically active and likely well known within political circles, which increases the likelihood of him being discovered in an any internal flight alternative location, making it more dangerous for him to live anywhere in Nigeria. Therefore, there is no viable internal flight alternative for the claimant in his particular circumstances.
CONCLUSION
[42] The panel is persuaded that should the claimant return to Nigeria, he would face a serious possibility of persecution at the hands of the Nigerian community as well as agents of the state, namely the police. Based on the totality of the evidence, the panel finds that the claimant faces a serious possibility of persecution in Nigeria pursuant to section 96 of the IRPA.
[43] The claim for protection is therefore accepted.
(signed) Joseph Berkovits
12 January 2021
1 Guidelines issued by the Chairperson pursuant to subsection 65(3) of the Immigration Act, IRB, Ottawa, November, 13, 1996
2 Exhibit 4, Minister’s Written Intervention
3 Exhibit 1, Package of information from the referring CBSA/IRCC.
4 Exhibit 4, Minister’s Written Intervention, p. 5
5 Exhibit 2, Basis of Claim Form, Narrative, paragraph 23
6 Exhibit 1, Package of information from the referring CBSA/IRCC.
7 Exhibit 1, “RIPC= Examining Officer Notes,” pp. 1-5
8 Ibid.
9 Guidelines issued by the Chairperson pursuant to subsection 65(3) of the Immigration Act, IRB, Ottawa, November, 13, 1996, paragraph 7.4, np
10 Exhibit 5, Claimant Disclosure, p. 17, (photo of current partner), pp. 18-48, (Print-out of text messages between the claimant and his current partner). Exhibit 6, Claimant Disclosure, pp. 49-50, (Print out of text messages between the claimant and his current partner).
11 Exhibit 5, Claimant Disclosure, pp. 15-16, (photographs of bullet wound)
12 Exhibit 3, National Documentation Package for Nigeria, (July 31, 2020), Item 2.1, p. 39
13 Exhibit 5, Claimant Disclosure, pp. 10-14
14 Exhibit 7, Claimant Disclosure, p. 1, Party Membership Card
15 Exhibit 3, National Documentation Package for Nigeria, (July 31, 2020), Item 2.3, p. 22
16 Exhibit 3, National Documentation Package for Nigeria, (July 31, 2020), Item 1.3, p. 46
17 Ibid, p. 50
18 Ibid, p. 47
19 Exhibit 3, National Documentation Package for Nigeria, (July 31, 2020), Item 6.1, 5
20 Exhibit 3, National Documentation Package for Nigeria, (July 31, 2020), Item 6.9, p. 15.
21 Exhibit 3, National Documentation Package for Nigeria, (July 31, 2020), Item 612. P. 14
22 Exhibit 3, National Documentation Package for Nigeria, (July 31, 2020(, Item 6.11, p. 39
23 Exhibit 3, National Documentation Package for Nigeria, (July 31, 2020), Item 6.11, p. 48