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2021 RLLR 59

Citation: 2021 RLLR 59
Tribunal: Refugee Protection Division
Date of Decision: June 17, 2021
Panel: Zorana Dimitrijevic
Counsel for the Claimant(s): Nicholas Omere
Country: Nigeria
RPD Number: TB9-33147
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A

DECISION

[1]       MEMBER: Okay, we are back on record. After considering the evidence and the testimony you provided today, I am ready to deliver my decision, which will follow.

[2]       This is an oral decision in the claim for refugee protection, for persons to s. 96 and s. 97(1) with Immigration and Refugee Protection Act in relation to the claim for the XXXX XXXX XXXX, file number TB9-33147. The Panel notes that the claimant indicates that he is a citizen of Nigeria. The Panel wishes to note that in assessing his claim, the Panel has considered Chairperson’s Guideline 9, proceedings before the IRB involving sexual orientation and gender identity and expression and a XXXX XXXX entered into evidence as Exhibit 5. The Panel knows that the claimant has lived his claim pursuant to s. 96 and the basis of his sexual orientation as a bisexual. For this reason, the Panel has been mindful of Chairperson’s Guideline 9.

[3]       The details of the claimant’s allegations are filed with the Basis of Claim form narrative in Exhibit 2. To summarize, the claimant alleges persecution from the Nigerian police and the community at large due to his sexual orientation as a bisexual man. In his narrative, the claimant states that he became aware of his sexual orientation at the age of 12, and that in 2016, he entered into same sex relationship with XXXX (ph) while in high school. In XXXX 2019, the claimant arrived to Canada on a visitor visa and asked for refugee protection on November 18, 2019 after learning about the social climate and laws on same-sex relationships in Canada. The claimant alleges that there is no state protection for him or an internal flight alternative anywhere in Nigeria.

[4]       The Panel finds that the claimant is a Convention refugee for the following reasons. The Panel finds that there is a link between what the claimant fears and one of the five convention grounds because of the claimant’s membership in a particular social group as a bisexual man. The Panel finds that, on a balance of probabilities, the claimant’s national and personal identity as a citizen of Nigeria has been established by his testimony and the copy of his valid Nigerian passport, entered into evidence. The certified true copy of the claimant’s passport can be found in Exhibit 1.

[5]       With respect to credibility, the Panel finds that the claimant was a credible witness in relation to the central issues of his claim. The claimant testified in the direct, sincere and emotional manner, and there were no omissions, inconsistencies or contradictions between his statements provided his Basis of Claim form signed in November 18, 2019 and his testimony at the hearing in relation to the central issues of the claim.

[6]       The claimant was able to explain when he became aware of his sexual orientation and the circumstances surrounding him coming to terms with his sexuality. The Panel also finds that the claimant was credible in describing his fear from the Nigerian authorities regarding the prohibition of same-sex relationships in Nigeria and explaining the consequences of someone being arrested for being in a same-sex relationship. The claimant was able to describe why, and how, he believes his return to Nigeria will lead to his potential arrest by the police and to the violence and abuse he suffered both by the police and the community.

[7]       The Panel finds that the claimant also provided detailed testimony about the issues that arose with his father after he has learned about his sexual orientation and the reasons why his father stopped communicating with him. The testimony he provided in relation to all this was very credible and the Panel accepts his, on a balance of probabilities, to be true.

[8]       The claimant also provided detailed testimony about the same-sex relationship he had in Nigeria with XXXX and provided details in this relationship that started about the claimant and XXXX were still in high school, and subsequently, continued their studies at the XXXX XXXX XXXX in Nigeria that both men attended from 2016 to 2019 as part of their preparation for XXXX XXXX. The claimant testified that the relationship with XXXX lasted from 2016 to 2019, and when the relationship ended after the claimant informed his partner about his decision to stay in Canada.

[9]       The claimant also testified about his same-sex relationship in Canada, with XXXX (ph), which was, as the claimant himself explained at the hearing, a combination of a fling and intense friendship that developed over time between him and XXXX, who is homosexual and who is also a refugee claimant from Kenya. As in evidence to the test, the claimant provided a letter from XXXX, where the author of the letter provides information about the way to friendship with the claimant developed over time, and the details of this friendship.

[10]     The Panel finds the letter to be credible, on a balance of probabilities, and assigns it full weight when assessing for the group to the claimant as it relates to his sexual orientation. The letter can be found in Exhibit 5.

[11]     The Panel finds the two claimants was credible in explaining the details pertaining to his same-sex relationships with the named individuals. The Panel finds that the claimant provided reasonable explanation for not having evidence provided by XXXX. He stated that XXXX was disappointed to learn about the claimant’s decision to not to return to Nigeria and that he still felt betrayed by the claimant. The panel accepts the explanation as credible, on a balance of probabilities, and finds that the claimant’s submission to provide a letter from XXXX does not impugn his credibility.

[12]     The Panel also has persisted evidence that establishes that the claimant is a bisexual man. This includes the claimant’s detailed testimony about the way he realized his sexual orientation, and the fear he felt at the time of this realization, as well as his fear to discuss his sexual orientation in Nigeria with anyone. The Panel places a substantial amount of weight in this testimony. As additional evidence, the claimant also provided letters from his coworkers, XXXX and XXXX, all accompanied with copies of identification documents that are equally detailed and personalized as the letter provided by XXXX and that demonstrate knowledge in the claimant’s sexual orientation and details of the reasons he decided to apply for refugee protection in Canada.

[13]     These letters were consistent and spoke as to what the authors of the letter saw. The Panel places a great deal of weight in these letters which can be found in Exhibit 5.

[14]     The claimant also provided photographs of him and XXXX from Nigeria. The Panel notes that the claimant was able to provide detailed information about the place and time the photographs were taken. The Panel finds the photographs to be credible evidence that corroborates the claimant’s allegations about his sexual orientation. In consideration of this matter as a whole, the Panel finds that the claimant has established, on a balance of probabilities, that he is a bisexual man. The Panel is therefore satisfied that the claimant has established his subjective fear.

[15]     The Panel further finds that the claimant has an objective basis for his fear because the documents at conditions for Nigeria as per the evidence in Exhibit 3, the National Documentation Package for Nigeria, herein, national package for NDP. The package provides, in Item 1.4 on page 48, that the general climate for LGBTQ persons has worsened considerably after the introduction of the same-sex marriage prohibition that was signed in January 2014. Human Rights Watch found this act in many ways, officially authorizes abuses against sexual minorities, compounding the already criminalized behaviour of the same-sex relationships. Mob attacks, violence and extortion were extensively reported in the media following the passage of the act, and LGBTQ individuals interviewed by Human Rights Watch stated that, prior to the law, objections were mainly on the basis that homosexual behaviour and same sexual behaviour, in general, was contrary to religious or cultural identities. However, following the introduction of the act, the police and the public have engaged in violations against LGBTQ people including, torture, sexual violence, arbitrary detention, extortion and lack due process. The package also provides, in Item 6.9 in page 9, that the overall sympathy for the deplorable treatment of real, or perceived, LGBTQ persons is abysmally low because speaking out against the harassment and injustice contributes religious and societal obligations and can easily be interpreted as a declaration of gayness. These factors have successfully birthed (ph) cases of extortion, police brutality, unlawful arrest, discrimination in home and workplace for LBTQ individuals in the entire country.

[16]     As well, the package provides, in Item 6.11 on page 19, that sexual minorities are generally not accepted by family members, and that the family acceptance stand for a rare exception to the rule, since it is more common that individuals with same-sex orientation become ostracized while experiencing violence and being forced to change their sexual orientation, should means of correction sections reparative therapy carried out the family members as well as security officers, health care providers, and religious and traditional institutions. Finally, the package provides, in item 6.1 on page 8, that homophobic violence is occurring without fear of consequences. There are many incidences of mob violence against LGBTQ individuals. Law-enforcement agents considered to be (inaudible) as an intervention to ease their work to enforce peace in the community. Therefore, the victims are the ones who get arrested o the basis of their sexual orientation and face more stigma and discrimination, unlawful arrest, detention extortion, and rape.

[17]     The Panel has taken all of this into consideration when assessing the claimant statements and finds that his fear of abuse and torture, as well as his awareness that in case he returns to Nigeria, he’d have to conceal his sexual orientation, are consistent with those in the objective documentary evidence regarding violence towards LGBTQ individuals. Based on documentary evidence, the Panel that finds that the claimant’s subjective fear has objective basis. Therefore, the Panel finds that the claimant has a well-founded fear of persecution in Nigeria due to his sexual orientation.

[18]     Going to the issue of state protection. Except in situations where the state is completely dysfunctional and in total breakdown, states must be presumed capable of protecting their citizens. It is up to the claimants to rebut the presumption with clear and convincing evidence that the state is either unwilling, or unable, to protect them. The same-sex sexual activity is criminalized by the federal laws throughout Nigeria and homophobic violence continues with impunity, the Panel finds that there is clear and convincing evidence that state protection would not be available to the claimant if he were to return to Nigeria. (inaudible), the Panel finds that there is nowhere in Nigeria were the claimant would not face a serious possibility of persecution.

[19]     An internal flight alternative arises when the claimant, who otherwise meets all the elements of the definition of a Convention refugee or a person in need of protection in his or her own area of the country, nevertheless, is not a Convention refugee or person in need of protection because she or he could live safely elsewhere that country. There is a test for a viable internal flight alternative and has two prongs. The Panel must be satisfied, on a balance of probabilities, that the claimant does not face a serious possibility of persecution, or be subjected personally to a risk to life or a risk of cruel and unusual treatment or punishment in other parts of the country, and the conditions in other parts of the country must be such that it would not be unreasonable in all of the circumstances, including those particular to the claimant, for him to seek refugee there. Based on the claimant’s membership in a particular social group as a bisexual man, and due to the fact that the police in Nigeria operates on the federal level, as stated in the NDP in Item 7.4, which provides in page 38 at that, that the Nigerian police force is the principal law enforcement agency in Nigeria, that the Nigerian constitution prohibits states and local governments from forming their own forces, and that the same-sex marriage prohibition act is a federal law, the Panel finds that, on a balance of probabilities, the claimant faces a serious risk of persecution throughout Nigeria. As internal flight alternative test fails on the first prong, the Panel needs not considered the second prong. The Panel finds that there is not viable internal flight alternative for the claimant in Nigeria.

[20]     Based on the totality of the evidence, the Panel finds the claimant to be a Convention refugee. His claim is therefore accepted.

[21]     COUNSEL: Thank you very much, Madam Member.

[22]     CLAIMANT: Thank you so much.

[23]     MEMBER: Thank you, and welcome to Canada.

[24]     CLAIMANT: Thank you.

[25]     MEMBER: Thank you for participating at the hearing today. Thank you, Counsel.

[26]     COUNSEL: Thank you, Madam Member

[27]     MEMBER: Do you have any questions?

[28]     COUNSEL: Any questions?

[29]     CLAIMANT: What happens now? Like what happens after?

[30]     MEMBER: Your counsel will explain you everything.

[31]     CLAIMANT: Okay, okay. Okay.

[32]     MEMBER: I wish you all the best.

[33]     CLAIMANT: Thank you so much, thank you.

[34]     MEMBER: I wish that you succeed in your plans with your further education.

[35]     CLAIMANT: And I wish that — I wish I do too. I’ll just have to work extra hard and that’s it.

[36]     MEMBER: That goes without saying. Thank you, I wish you the best, both of you. And this hearing is now concluded, thank you.

[37]     COUNSEL: Thank you.

[38]     CLAIMANT: Thank you and have a good day.

——————–REASONS CONCLUDED ——————–