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2021 RLLR 52

Citation: 2021 RLLR 52
Tribunal: Refugee Protection Division
Date of Decision: June 18, 2021
Panel: S. Charow
Counsel for the Claimant(s): Udo Mandy Nwobu
Country: Nigeria
RPD Number: TC0-06416
Associated RPD Number(s): TC0-06460 / TC0-06477 / TC0-06478
TC0-06479
ATIP Number: A-2022-01594
ATIP Pages: N/A

REASONS FOR DECISION

[1]       XXXX XXXX (“the principal claimant”), his wife XXXX XXXX (“the associated claimant”), and their children, XXXX XXXX, XXXX XXXX, and XXXX  XXXX (“the minor claimants”), citizens of Nigeria, claim refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (“the IRPA”).1

[2]       The claims were heard jointly as required by Rule 55 (1) of the Refugee Protection Division Rules. The principal claimant was appointed as a designated representative for the minor claimants. The minor claimants relied on the testimony of the principal claimant and the associated claimant.

[3]       In making this decision, I have considered the claimants’ testimony, tendered evidence, and counsel’s written submissions.2 I have also considered and applied the Chairperson’s guidelines on both sexual orientation and gender.3

ALLEGATIONS

[4]       The claimants’ allegations can be found in their Basis of Claim forms (“BOCs”)4 and their amended BOC.5 In short, the claimants allege that the principal claimant is a bisexual man who was caught with his same-sex partner. He fled the city. After he left, the principal claimant was sought by the police. The associated claimant and minor claimants fear cleansing rituals. They allege that there is no state protection available to them, nor any viable internal flight alternatives.

DETERMINATION

[5]       I find the principal claimant to be a Convention refugee. I find that the associated claimant and the minor claimants are neither Convention refugees nor persons in need of protection as they have a viable internal flight alternative (“IFA”) in Port Harcourt. My reasons follow.

ANALYSIS

Identity and Country of Reference Are Established

[6]       The claimants’ personal identities and country of reference have been established, on a balance of probabilities, by their Nigerian passports.6

The Claimants’ Credibility Was Mixed

[7]       I find, overall, the claimants’ credibility was mixed. I noted substantial and significant omissions of key events, all of which tie back to the core of the claim regarding the principal claimant’s sexual orientation. When put to the claimants, these omissions were not adequately explained and each one negatively impacts the claimants’ credibility.

[8]       I further noted one considerable inconsistency, regarding what happened when the principal claimant’s sexual orientation was revealed to his community. The principal claimant’s testimony was inconsistent with the associated claimant’s testimony. This inconsistency was also inadequately explained and again negatively impacts the claimants’ general credibility.

[9]       Lastly, I note that the claimants were in the United States for a lengthy period of time without seeking asylum there. I put this failure to claim asylum to the claimants and was not satisfied that their reply adequately explained the issue. This also negatively impacts their overall credibility.

[10]     I balance this with other detailed, spontaneous, and forthright lines of testimony, including how the principal claimant realized his sexual orientation and about his same-sex partners. The principal claimant’s testimony about how his sexual orientation was revealed was also consistent and rang true. I further note some supporting evidence to establish the principal claimant’s sexual orientation and the subsequent risk to all the claimants, specifically affidavits from the associated claimant’s father, a friend of the principal claimant, their neighbour, and the principal claimant’s sister.7 These affidavits have no clear issues presenting and are consistent with the claimants’ allegations. I further note the presence of two police invitation letters, inviting the principal claimant to the police station to discuss his sexual orientation.8

[11]     In short, although I do find the claimants’ credibility generally tarnished, I still have enough credible evidence before me to find that the principal claimant has established that he is a bisexual man and would be at risk of persecution should he return to Nigeria. I find that the principal claimant has established his subjective fear.

Nexus Is Established for The Principal Claimant

[12]     I find that there is a link between what the principal claimant fears and one of the five Convention grounds due to his membership in a particular social group as a bisexual man. His claim has therefore been assessed under section 96 of the IRPA.

An Objective Basis Has Been Established for the Principal Claimant

[13]     I further find that the principal claimant has an objective basis for his fears, as per the documented conditions for Nigeria. I note that Nigerian legislation effectively all forms of activity supporting or promoting lesbian, gay, bisexual, transgender, and intersex rights. According to the law, anyone convicted of entering into a same-sex marriage or civil union may be sentenced to up to 14 years’ imprisonment. The law also criminalizes the public show of same-sex “amorous affection.”9 Furthermore, there are many incidences of mob violence against LGTBTQ individuals. Law enforcement agents consider the vigilantes’ attacks as an intervention to ease their work to enforce peace in the community; therefore, the victims are the ones who get arrested on the basis of homosexuality and face more stigma, discrimination, unlawful arrest, and detention, extortion and rape.10

[14]     As both subjective fear and objective basis has been established for the principal claimant, I find that he has a well-founded fear of persecution.

There Is No State Protection or Internal Flight Alternative Available for The Principal Claimant

[15]     As per the above analysis, same-sex sexual activity is criminalized throughout Nigeria and homophobic violence continues with impunity. I therefore find that there is clear and convincing evidence that state protection would not be available to the principal claimant.

[16]     Likewise, I find that there is nowhere in Nigeria where the principal claimant would not face a serious possibility of persecution due to his sexual orientation. As the test for an IFA fails on the first prong, I find there is no viable IFA for the principal claimant.

The Remaining Claimants Have A Viable IFA In Port Harcourt

[17]     As I have accepted that the principal claimant is a bisexual man, I also accept that there is a corresponding danger for his wife and children (the remaining claimants) as alleged. However, I must determine if there is another place in Nigeria that it is both safe and reasonable for the remaining claimants.

[18]     In short, to determine whether a viable IFA exists, I must consider a two-prong test.11 I must be satisfied that, on a balance of probabilities, there is no serious possibility of the claimants being persecuted in the part of the country in which I find an IFA exists. Furthermore, conditions in that proposed part of the country must be such that it would not be unreasonable, in all circumstances, including those particular to the claimants, for them to seek refuge there.

[19]     As the claimants were originally from Lagos, I proposed IFA locations of Abuja and Port Harcourt to the claimants. I find that, on a balance of probabilities, the remaining claimants do not face a serious possibility of persecution or risk of harm under section 97 of the IRPA in Port Harcourt and it is not unreasonable for the claimants to relocate to Port Harcourt.

The Remaining Claimants Would Be Safe in Port Harcourt

[20]     The associated claimant testified that it would not be safe in Port Harcourt because if people by there happen to find out about the principal claimant’s sexual orientation or what had happened to the claimants by chance, they will start “warring” against the remaining claimants. When asked how people in Port Harcourt would find out about what had happened, the associated claimant replied that her calls would be traceable.

[21]     The onus of disproving a proposed IFA falls to the claimants. In this case, I find that the claimants’ allegations about the risk in Port Harcourt do not disprove the IFA on the first prong of the test.

[22]     The associated claimant testified that the people in Port Harcourt could find out about what had happened to the claimants “by chance”. To be clear, I do not draw a negative credibility inference from this allegation – I accept that the claimants believe this. However, saying that they may be discovered by chance – without a further explanation as to how regular people in Port Harcourt (or the principal claimant’s family in Lagos) may discover them – is entirely speculative. There has been no evidence tendered to establish this and therefore it does not rebut this prong of the test for an IFA.

[23]     I turn to the second argument made, specifically that the claimants could be traced through the associated claimant’s telephone. I find that this also does not rebut this prong of the IFA. This is because there is no evidence to establish that the people the claimants alleged to fear could access any telephone records.

[24]     I have accepted that the claimants fear the Nigeria Police in Lagos and I must consider whether the remaining claimants would face any risk from them in Port Harcourt. However, there is no confirmation that there is any implemented communication system between police forces or other authorities in Nigeria that would be able to track the claimants. Although I note the presence of a national database, there is no indication that it has been fully implemented. The available documentary evidence states that is limited to nominal data, stolen and lost travel documents, and stolen motor vehicles.12 I find, on a balance of probabilities, that the Nigeria Police would not be able to track the remaining claimants should they relocate to Port Harcourt.

It Would Be Reasonable for The Remaining Claimants To Relocate Ta Port Harcourt

[25]     The claimants allege that they would not be able to relocate to Port Harcourt because the associated claimant could not get a job there or open another business because she doesn’t know anyone there and it is hard to get jobs. She testified that the children could not go to school there because they don’t know anyone there and can’t live there. She also stated that there would be a language barrier in Port Harcourt.

[26]     In considering this IFA, I am mindful that the Federal Court of Appeal has set a very high threshold for the unreasonableness prong of the IFA test. Indeed, “it requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant.”13 The Federal Court of Appeal has also been clear that the personal circumstances of a claimant must be central to the reasonableness analysis.14 The question to be answered on the second prong of the test is whether expecting the claimant to relocate to the proposed IFA location would be “unduly harsh.”15

[27]     I further note that I must consider whether the principal claimant would return to Nigeria with the rest of his family, even though his claim is to be accepted. I find that it has not been established that he will – there has been no corroborating evidence nor testimony tendered to support that speculation. I therefore assess the reasonableness of the proposed IFA for only the remaining claimants, as a female-headed household with four young children (the three minor claimants and one Canadian-born child, who although is not a claimant, must still be considered with regards to their impact on the IFA for the remaining claimants).

[28]     I have also considered the Chairperson’s Guidelines, as cited above, especially as they relate to the claimants’ ability to travel safely to the IFA and to stay there without facing undue hardship.

[29]     For the reasons as outlined below, in all the circumstances, including those particular to the remaining claimants, conditions in Port Harcourt are such that it would not be unreasonable for the claimants to seek refuge there.

[30]     According to the UK Home Office report on internal relocation in Nigeria, generally, a person fearing a non-state actor is likely to be able to relocate to another part of Nigeria depending on the nature of the threat from the non-state agent(s) and the individual circumstances of the person.16 Although there is a fear of the police, I have found that the police could not locate the remaining claimants. I also note that Nigerians have the right to and can generally freely travel around their country.17 Port Harcourt has an airport as well.18

[31]     Although relocation in Port Harcourt could be “relatively difficult” for single women, especially if they have a low level of education or do not benefit from financial support,19 I note that this is not the case for the associated claimant. The associated claimant testified she has a XXXX XXXX XXXX XXXX, which is much higher than the national average for education in Nigeria.20 She has XXXX XXXX XXXX XXXX XXXX and has XXXX XXXX XXXX XXXX. In Canada, she has upgraded skills and is currently completing a program to XXXX XXXX all transferable skills. I find that these are all factors that will facilitate the remaining claimant’s relocation to Port Harcourt.

[32]     I do note that country document evidence indicates that it is difficult to find work in the formal sector but there are opportunities to work in the informal sector such as trading,21 which would be very similar to the associated claimant’s own work experience.

[33]     I further note that among working Nigerians, 57.37 % of women were working full time and 70% of working women were self-employed,22 even though gender inequality is widespread in Nigeria and women tend to find it harder to obtain paid work. However, there is evidence that there is a “withering of cultural restrictions on the perception of women in public affairs” and an “increasing tendency of women to take up economic roles in the family previously reserved for men and to question the myth of the ‘male-as-breadwinner’ in many middle-class and low­ income families.”23

[34]     Having found it is likely that the associated claimant could obtain suitable employment, I find that it is also likely that the remaining claimants could obtain suitable housing. In terms of housing, I also accept that affordability is not the only issue and that country document evidence “indicates that relocation may present greater challenges for single women who do not have access to a support network.”24 However, despite these challenges, many women do indeed head their own households in Nigeria’s southern states. 14.7% of rural households and 21.8% of urban households are headed by women.25

[35]     Female heads of households may encounter discrimination in seeking accommodation and be stigmatized for living alone, especially if they do not have adequate economic resources or male advocates and this may also make them vulnerable to sexual exploitation, as alleged by the claimants. However, an exception to this discrimination may be the case of accommodation offered by formal real estate firms, in which case what matters is the ability to pay and not social norms, gender, or marital status.26

[36]     In terms of language in Port Harcourt, in Nigeria, Pidgin English is spoken by most of the population and that this ensures that language is not an obstacle. 27 The remaining claimants speak English.28 I also note that most Nigerian towns and all large cities have quite large migrant communities from other parts of the country.29 Furthermore, the evidence indicates that non-indigenes are entitled to access essential public services, including health care, primary and secondary education; however, societal norms discourage them from attempting to do so.30 I find, on a balance of probabilities, that the minor claimants (and the Canadian-born child if need be) could access education, even if it requires the payment of school fees. There is no indication as well that the claimants could not freely practice their religion, as there are large Christian populations throughout Nigeria.31

[37]     The claimants have submitted that Port Harcourt would be an unreasonable IFA as there would be no available treatment for the principal claimant’s mental health conditions. But the principal claimant, as outlined above, has not stated that he would return to Nigeria should the remaining claimants return to Nigeria. No evidence has been tendered regarding any of the remaining claimants’ mental health.

[38]     I accept that relocation to Port Harcourt may be difficult for the remaining claimants. However, difficult circumstances do not make Port Harcourt an unreasonable IFA location in the context of a refugee claim. While the remaining claimants’ circumstances may be difficult, I cannot find that these conditions will necessarily place the claimants in jeopardy, the high bar set by the existing jurisprudence. These factors alone are not capable of sustaining a refugee claim and nor do they suggest that the claimants’ life would be in jeopardy or at risk of persecution.

CONCLUSION

[39]     For the above reasons, I find that the principal claimant is a Convention refugee under section 96 of the IRPA, as he faces a serious possibility of persecution upon return to Nigeria.

[40]     His claim is therefore accepted.

[41]     As the remaining claimants have an IFA in Port Harcourt that is safe and reasonable in their particular circumstances, I find they do not face a serious possibility of persecution in Nigeria. The finding of an IFA also applies to the IRPA section 97(1) as, on a balance of probabilities, the remaining claimants do not face a danger of torture, or risk to life, or risk of cruel and unusual treatment or punishment. Consequently, the remaining claimants are neither Convention refugees nor persons in need of protection.

[42]     Their claims are accordingly denied.

(signed) S. Chow

June 18, 2021

Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1).

2 Exhibit 10, written submissions, received May 25, 2021, entered into evidence June 16, 2021.

3 Chairperson’s Guideline 9: Proceedings Be/ore the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective date: May 1, 2017 and The Chairperson ‘s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, Guidelines continued in effect by the Chairperson on June 28, 2002, under ss. 159(l)(h) of the IRPA.

4 Exhibits 2.1-2.5.

5 Exhibit 7.

6 Exhibit 1, referring package from CBSA/IRCC.

7 Exhibit 5, p. 1-8.

8 Exhibit 5, p. 9-20.

9 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 2.1.

10 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 6.1.

11 Thirunavukkarasu v. M.E.I., [1994] 1 F.C. 589 (C.A.); Rasaratnam v. M.E.I., [1992] 1 F.C. 706 (C.A.) at 710.

12 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 10.4.

13 Ranganathan v. Canada (MC]), 2000 CanLII 16789, at para. 14.

14 Rasaratnam v. Canada (MEI), [1992] 1 FC 706, at p. 710.

15 Thirunavukkarasu v. Canada (MEI), 1993 CanLII 3011.

16 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 1.17.

17 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 5.10.

18 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 1.1.

19 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 5.9.

20 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 1.4.

21 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 13.1.

22 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 5.9.

23 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 5.9.

24 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 5.9.

25 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 5.9.

26 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 5.9.

27 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 5.9.

28 Exhibits 2.2-2.4, BOCs, question 1g.

29 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at Item 13.1.

30 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at 1.17.

31 Exhibit 3, National Documentation Package for Nigeria, version April 16, 2021, at 1.7.