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2021 RLLR 6

Citation: 2021 RLLR 6
Tribunal: Refugee Protection Division
Date of Decision: June 28, 2021
Panel: Sandeep Chauhan
Counsel for the Claimant(s): Johnson Babalola
Country: Nigeria
RPD Number: VC1-01443
Associated RPD Number(s): VC1-01444, VC1-01445, VC1-01446, VC1-01447
ATIP Number: A-2022-00210
ATIP Pages: 000202-000213

REASONS FOR DECISION

INTRODUCTION

[1]       This These are the reasons for the decision in the claims of XXXX XXXX XXXX (the “principal claimant”), her spouse XXXX XXXX XXXX (the “associate claimant”), their daughters XXXX XXXX XXXXand XXXX XXXX XXXX (the “minor female claimants”), and their son XXXX XXXX XXXX (the “minor male claimant”), as citizens of Nigeria, who are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).i

[2]       XXXX XXXX XXXX was appointed as designated representative for her minor children XXXX XXXX XXXX XXXX XXXX XXXX XXXXand XXXX XXXX XXXX.

[3]       In rendering my reasons, I have considered and applied the Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution and the Guidelines on Child Refugee Claimants: Procedural and Evidentiary Issues.

ALLEGATIONS

[4]       The following is a brief synopsis of the allegations out forth by the principal claimant in her Basis of Claim (BOC) form.ii

[5]       The principal claimant fears persecution at the hands of her in-laws in Nigeria for her refusal to have the minor claimants undergo Female Genital Mutilation (FGM).

[6]       The principal claimant is a XXXX XXXXyear-old Yoruba female who was a victim of FGM when she was young. She now fears that her daughters will undergo the same trauma as her father-in-law is adamant on carrying out the procedure on the female minor claimants.

[7]       The principal claimant also fears for her life at the hands of persons convicted of crimes by the courts in Nigeria as she is a bailiff and executes the court verdicts.

[8]       The principal claimant and the minor claimants travelled to Canada on XXXX XXXX XXXX 2018. The associate claimant stayed behind in Nigeria. His father attempted to have him kidnapped, following which he quit his job and escaped to Canada on XXXX XXXX XXXX 2018.

[9]       The claimants filed for refugee protection, fearing for their lives in Nigeria.

DETERMINATIONS

[10]     I find that the principal and the minor female claimants are Convention refugees as they have established a serious possibility of persecution based on their membership in a particular social group upon return to their country. My reasons are as follows.

[11]     I also find that the associate claimant and the minor male claimant have satisfied the burden of establishing, on a balance of probabilities, that they would personally be subjected to a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture upon return to their country. My reasons are as follows.

ANALYSIS

Identity

[12]     I find that the claimants’ identities as nationals of Nigeria are established, on a balance of probabilities, based on certified copies of their Nigerian passports on file.iii

Nexus

[13]     For a claimant to be considered a Convention refugee, the well-founded fear of persecution must be by reason of one or more of the five grounds: race, religion, nationality, membership in a particular social group or political opinion.

[14]     In this case, the evidence before me is that the principal claimant fears persecution in Nigeria due to her refusal to subject the minor claimants to FGM. I find that she has established a nexus to a Convention ground – membership in a particular social group: namely a woman fearing gender-based persecution. I also find that the minor female claimants have established a nexus to a Convention ground – membership in a particular social group: namely children fearing genderĀ­ based persecution. Accordingly, I have assessed their claims under section 96 of IRPA and not under section 97.

[15]     Victims or potential victims of crime, corruption or personal vendettas generally cannot establish a link between fear of persecution and Convention reasons (Kang, 2005 FC 1128 at para. 10). The associate claimant and the minor male claimant fear persecution in Nigeria due to the threat of kidnapping by the associate claimant’s father and his extended family due to the associate claimant’s refusal to subject the minor female claimants to FGM.

[16]     As victims of crime who fear future criminality which is not connected to one of the five Convention grounds, I find that the associate claimant and the minor male claimant have not established a nexus to one of the Convention grounds. Their claims will therefore be assessed under section 97(1) of the Act, and not section 96.

Credibility

[17]     When a claimant swears to the truthfulness of certain facts there is a presumption that what he or she is saying is true unless there are reasons to doubt it. The determination as to whether a claimant’s evidence is credible is to be made on a balance of probabilities.

[18]     In this case the principal claimant and the associate claimant testified in a straightforward manner and, there were no relevant inconsistencies in their testimonies or contradictions between their testimonies and the other evidence before me which have not been satisfactorily explained.

[19]     I canvassed the principal claimant why she did not seek protection earlier, since the threats of FGM by her father-in-law had commenced at the time her eldest daughter was born in XXXX. She explained that at that time they did not take the threats seriously and were able to talk the inĀ­ laws into postponing the consideration of subjecting their eldest daughter to female circumcision. There were discussions on this issue, but the threats never escalated. Following the birth of their second daughter in XXXX, there was more serious talk of revisiting this issue of female circumcision. It is only when the father-in-law and his relatives began demanding that the female minor claimants will have to undergo FGM, did they start to realize the gravity of the matter. Then, when her father-in-law tried to get the associate claimant kidnapped for his refusal to agree with him on the issue of FGM, did they realize that their lives were in danger. I accept the principal claimant’ s explanation for the delay in seeking protection reasonable, as initially, it was just simple talk on the issue of FGM for the eldest minor female claimant. However, with the birth of their younger daughter in XXXX, the situation deteriorated, and the threats worsened with the escalation of those threats to physical harm for the principal claimant, the associate claimant, and the minor male claimant for refusing to honour the family tradition of subjecting the minor female claimants to FGM. I do not draw any negative inference on the issue of delay in seeking refugee protection.

[20]     Apart from their oral testimonies, the principal claimant and the associate claimant have provided corroborating documentary evidence to support their and the minor claimants’ claims. These documents form part of Exhibits 5, 6, 8 and 9. I have no reason to doubt the genuineness of these documents and accept them as genuine. The evidence contains the following:

  • Marriage certificate confirming the principal claimant and the associate claimant are married to each other, along with birth certificates of minor claimants confirming they are their children.
  • Supporting letter from pastor of a church in Nigeria confirming the claimants were facing threats of persecution at the hands of the associate claimant’s father and his extended family on the issue of FGM for the minor female claimants.
  • Medical note from Nigeria showing that the principal claimant was treated for XXXX XXXX XXXX XXXXand XXXX.
  • XXXX assessment report from Canada confirming that the principal claimant suffers from XXXX XXXX XXXX XXXX XXXX XXXX XXXX due to the events she faced in Nigeria.

[21]     Based on the principal claimant’s and the associate claimant’s straightforward testimony and the corroborating documentary evidence discussed above, I find them to be credible witnesses and accept their allegations to be true on a balance of probabilities. In particular, on a balance of probabilities, I accept that:

  • The associate claimant’s father and his extended family want the minor female claimants to be subjected to FGM.
  • The principal claimant and the associate claimant were issued threats of harm by the associate claimant’s father.
  • There was an attempt to kidnap the associate claimant at the behest of his father for refusal to have the minor female claimants undergo FGM.
  • The associate claimant’s father has threatened to harm all the claimants for refusing to honour the family practice and tradition of FGM.
  • The principal claimant and the minor female claimants have a subjective fear of returning to Nigeria.

Well-Founded Fear of Persecution and Risk of Harm

[22]     To establish their status as Convention refugees, the principal and the minor female claimants had to show that there was a serious possibility that they would be persecuted if removed to Nigeria.

[23]     I find that the evidence presented in support of their allegations does establish a serious possibility of persecution for the claimants. My reasons are as follows.

[24]     The principal claimant has been threatened with dire consequences by her father-in-law for refusing to subject the minor female claimants to undergo FGM as per the family’s traditions and the Yoruba culture.

[25]     The claimants’ subjective fear is supported by objective evidence.

[26]     The country condition documents for Nigeria corroborate the facts alleged by the principal claimant and the objective basis for her and the minor claimants’ claims. FGM is widespread in Nigeria and the procedure has been performed on 20 million women and girls in the country, with some estimates indicating that 24.8% of all women between 15 and 49 have undergone FGM.iv

[27]     The claimants belong to the Yoruba culture and ethnicity. The objective evidence states that FGM is much more common amongst southern ethnic groups, and studies indicate that between 52-90% of Yoruba women and girls have been subjected to FGM.v

[28]     Although Nigeria has passed legislation to criminalize the FGM as well as the procurement, arrangement, and/or assistance of acts of FGM, the prevalence of this social evil remains concerning and there are no reported instances of any prosecutions brought under federal legislation since its introduction in 2015 in Nigeria.vi

[29]     I also reference the Response to Information Request (RIR) on whether parents can refuse subjecting their children to FGM and the repercussions for doing so.vii The RIR states that the decision to subject a girl to FGM is generally up to her parents and that parents who refuse to let their daughters be mutilated do not face any significant consequences. The principal claimant testified that her in-laws are rooted in rural Yoruba culture and traditions and have subject all their females to FGM. She stated that her father-in-law is adamant that until the minor female claimants are subject to FGM, calamities will befall on the family. She testified that the father-in-law has threatened that he will forcibly take away the minor claimants and do what needs to be done. I agree with the principal claimant’s argument that she and the minor claimants face a serious possibility of persecution as the RIR also states that the decision to refuse FGM without repercussions is dependent on whether the families are urbanites or rural folks, seeped in the traditions and culture. I accept the principal claimant’s assertion that her in-laws, even though urbanites, uphold the rural and family traditions such as FGM.

[30]     Therefore, based on all the evidence before me, I find that the principal claimant and the minor female claimants will face a serious possibility of persecution if forced to return to Nigeria, especially since her father-in-law is motivated and has threatened the principal claimant of dire consequences and of forcibly taking away the minor female claimants to subject them to FGM. I find that their fears are indeed well-founded.

[31]     I now turn my attention to the claims of the associate claimant and the minor male claimant.

[32]     I find, on a balance of probabilities, that both of them face a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture if forced to return to Nigeria.

[33]     The associate claimant’s father threatened him and his family of harm of he did not agree to uphold the family and Yoruba tradition of subjecting the minor female claimants to FGM. After the principal claimant and the minor claimants left Nigeria, the associate claimant’s father attempted to have him kidnapped, even though the associate claimant had changed his place of residence and moved to another state without informing anyone about it. This is indicative of the agent of persecution’ s motivation and ability to reach the claimants if they are forced to return to Nigeria. These threats of harm continue unabated through the claimants’ relatives in Nigeria.

[34]     Therefore, based on all the evidence before me, I find, on a balance of probabilities, that the associate claimant and the minor male claimant will face a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture if forced to return to Nigeria.

State Protection

[35]     I find that adequate state protection would not be reasonably forthcoming in this particular case.

[36]     States are presumed to be capable of protecting their citizens, except in situations where the country is in a state of complete breakdown. The responsibility to provide international (or surrogate) protection only becomes engaged when national or state protection is unavailable to the claimant. To rebut the presumption of state protection, a claimant must provide “clear and convincing” evidence of the state’s inability to protect its citizens. A claimant is required to approach the state for protection if protection might reasonably be forthcoming. However, a claimant is not required to risk their life seeking ineffective protection of a state, merely to demonstrate that ineffectiveness (Ward [1993] 2 S.C.R. 689).

[37]     The principal claimant stated that she will not be able to seek police protection in Nigeria because the issue of FGM is considered private, in which the police do not intervene.

[38]     Objective evidence states that authorities often do not take complaints about FGM seriously. There are no reported instances of any prosecutions brought under federal anti-FGM legislation since its introduction in 2015. A recent study conducted by UNFPA and UNICEF does not list any arrests, cases, or convictions for FGM in Nigeria.viii

[39]     Objective evidence also states that there are reports which indicate that it remains extremely difficult for women and girls to obtain protection from FGM due to community support for these practices, the attitude of police, and treatment by the police of FGM as a community or family matter.ix

[40]     Finally, I quote the United Kingdom Home Office report, which indicates that the police may be discriminatory in their treatment of victims of ritual practices, including FGM, and that women often do not report such practices to the police due to a lack of trust. Police themselves can be part of the culture and thus fail to treat such practices as criminal.x

[41]     The objective evidence discussed above establishes that FGM is considered a private matter in Nigeria. It is a prevalent practice in the country, thereby influencing the response of the police as not taking such acts seriously and thereby failing to provide protection to victims or potential victims of FGM and gender-based violence. Therefore, I find that the claimants will not be able to access adequate state protection in Nigeria and that the presumption of state protection has been rebutted.

Internal Flight Alternative

[42]     The final issue is whether the claimants have a viable internal flight alternative (IFA) in Nigeria. In order to determine whether an IFA exists, I must assess whether there is any location in Nigeria in which the claimants would not face a serious possibility of persecution and whether it would be reasonable to expect them to move there.xi

[43]     The agent of persecution in this case is the associate claimant’s father, who is extremely motivated to pursue the claimants in order to fulfill the long-standing family and Yoruba tradition of subjecting the minor female claimants to FGM. He has demonstrated through the kidnapping attempt of the associate claimant that he has the motivation and the reach to locate them within Nigeria.

[44]     Therefore, for reasons similar to those of state protection and the motivation and ability of the agent of persecution to locate the claimants, I find that they do not have a viable internal flight available in Nigeria.

CONCLUSION

[45]     For the reasons above, I conclude that the principal claimant and the minor female claimants are Convention refugees under section 96 of IRPA. Accordingly, I accept each of their claims.

[46]     For the reasons above, I conclude that the associate claimant and the minor male claimant are persons in need of protection within the meaning of section 97 (1)(a) or (b) of IRPA. Accordingly, I accept each of their claims.

(signed)  Sandeep Chauhan

i Immigration and Refugee Protection Act, S.C. 2001, c. 27.

ii Exhibit 2.

iii Exhibit 1.

iv Exhibit 3, National Documentation Package (NDP), Nigeria, 16 April 2021, tab 1.4: EASO Country of Origin Information Report: Nigeria. Country Focus. European Union. European Asylum Support Office. June 2017. NDP, tab 5.2: Nigeria: The Law and FGM. 28 Too Many. June 2018.

v Exhibit 3, NDP, tab 1.4: EASO Country of Origin Information Report: Nigeria. Country Focus. European Union. European Asylum Support Office. June 2017.

vi Exhibit 3, NDP, tab 5.2: Nigeria: The Law and FGM. 28 Too Many. June 2018.

vii Exhibit 3, NDP, tab 5.12: Whether parents can refuse female genital mutilation (FGM) of their daughter; state protection available (2016-October 2018). Immigration and Refugee Board of Canada. 29 October 2018.

NGAI06183.FE.

viii Exhibit 3, NDP, tab 5.2: Nigeria: The Law and FGM. 28 Too Many. June 2018.

ix Exhibit 3, NDP, tab 5.12: Whether parents can refuse female genital mutilation (FGM) of their daughter; state protection available (2016-October 2018). Immigration and Refugee Board of Canada. 29 October 2018.

NGA 106183.FE. NDP, tab 5.16: Country Policy and Information Note. Nigeria: Female Genital Mutilation (FGM). Version 2.0. United Kingdom. Home Office. August 2019.

x Exhibit 3, National Documentation Package, Nigeria, 16 April 2021, tab 5.16: Country Policy and Information Note. Nigeria: Female Genital Mutilation (FGM). Version 2.0. United Kingdom. Home Office. August 2019.

xi Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.).