Citation: 2021 RLLR 67
Tribunal: Refugee Protection Division
Date of Decision: December 3, 2021
Panel: Zhanna Perhan
Counsel for the Claimant(s): Richard Odeleye
Country: Nigeria
RPD Number: TC1-08269
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A
DECISION
[1] MEMBER: XXXX, I had an opportunity to consider your testimony today, examine the evidence before me, in particular in Exhibits 5, 6, 7 and 8, provided by you via your counsel and I’m ready to render my decision orally today.
[2] So the file number for you, XXXX, is TC1-08269.
[3] During the hearing today and in my decision, I considered and I applied SOGIE Guidelines, Chairperson Guidelines 9.
[4] XXXX, you claim to be a citizen of Nigeria.
[5] You’re claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.
[6] I find, XXXX, that you are a Convention refugee for the following reasons.
[7] The allegations of your claim can be found in your Basis of Claim form, both the original and updated ones in Exhibit 2, 5 and 8.
[8] In terms of your identity, it’s been established, on a balance of probabilities, through the certified true copy of your Nigerian passport in Exhibit 1.
[9] I find there is a link between what you fear and one (1) of the five (5) Convention grounds.
[10] As I noted earlier, the Convention ground for your claim is a particular social group.
[11] I accept, on a balance of probabilities, that you are a bisexual.
[12] So your claim is analyzed pursuant to section 96 of IRPA.
[13] In terms of your general credibility, I focused my questioning today on your sexual orientation, as determinative in your particular circumstances. My assessment was based on your testimony, as it relates to your sexual orientation and your past same-sex relationships.
[14] I found you to be a generally credible witness.
[15] There were some inconsistencies, which I considered peripheral and they do not go to the heart of the claim and they obviously do not overcome your otherwise credible testimony today.
[16] So I don’t draw any negative inferences from those inconsistencies.
[17] You testified how you came to realization as a bisexual, when you were 15, about your attraction towards women and how you identify as bisexual. However, you find women are more attractive for you than the man.
[18] I’ve put a lot of weight into your testimony about your relationships in Nigeria, in particular your first same-sex partner, XXXX (ph). You detailed today how you lost touch with her when she moved to Kano State.
[19] You detailed also about your second and most lengthy relationship with XXXX (ph), who you met in XXXX and you were together for 13 years, both living in Lagos State.
[20] You indicated that even though your family knew about XXXX, they all considered her to be your best friend rather than — nobody knew about your relationship, romantic relationship.
[21] However, you and XXXX had to break up your relationship in 2018, when she was pressured into marriage and she moved to Abuja. She simply stopped answering your calls, as per your testimony today.
[22] At that time, you started dating a man and due to constant pressure from your family, you also decided to get married. Your marriage was planned for February 1st, 2020. You started having second thoughts.
[23] You decided to go to Canada, see your brother and do some wedding shopping in XXXX 2019. While in Canada, you made up your mind that you would not be happy with a man and your true identity would come out eventually. Moreover, you wanted to be happy and free and live the life in Canada as a free woman.
[24] You talked to your mother. She was disappointed in you and she cried a lot, as per your testimony.
[25] And you also had a talk with your ex-fiancé, who went as far as threaten you with death, if you returned.
[26] Your brother advised you to seek refugee protection in Canada, which you did but the application process was delayed due to the pandemic.
[27] At the start of the hearing, you also indicated that you had a relationship in Canada with XXXX (ph), who you met in shelter. Your friend, XXXX (ph), introduced you to her. You became good friends. You dated but XXXX didn’t want to commit to a serious relationship. In 2021, she moved to Montreal. You missed her a lot so you decided to go visit her in Montreal in October this year and tell her about your love, hoping that she would reconsider. However, it did not happen. You returned to Toronto heartbroken. Since then, you tried calling XXXX but she would not pick up your calls.
[28] At the hearing, I asked if it was okay to call XXXX and ask her about you and XXXX. You provided XXXX phone number. She agreed to be on the record. XXXX testified that she introduced XXXX to you. That you asked XXXX to help ask XXXX out but she wouldn’t interfere. XXXX also testified that she knows you two (2) dated but doesn’t know about your current relationship because she hasn’t talked to XXXX in a while and XXXX who now lives in Montreal.
[29] I find that testimony really corroborated and really helped to further — really helped with increasing your credibility and so I discarded those minor inconsistencies and omissions that were noted throughout your testimony, thanks to my talk with XXXX.
[30] You also indicated that in Canada, you belong to LGBTQ societies, such as MCC and 519. You find them to be helpful.
[31] You’re still in love with XXXX. You’re hoping she would still come around.
[32] Unfortunately, you’re not on good terms with your brother, as his wife is not supportive of you. So since you moved out, you have not talked to him. Hopefully that will change in the future.
[33] In support of your allegations, you presented documentary evidence in Exhibit 5, 6, 7 and 8.
[34] In particular, I see here a XXXX XXXX, this speaks to past trauma and your current vulnerable state of mind; letters from your mother and your sister; letters from MCC and 519 about your membership and attendance; screenshots of your communication via WhatsApp with XXXX, your same-sex partner in Canada. There’s also a copy of your wedding invitation; photos with your fiancé in Nigeria, as well as photos of you with your same-sex partners in Nigeria.
[35] I gave the documents lots of weight. They corroborate your written and oral testimony.
[36] I find, on a balance of probabilities, you are a credible witness. I’m satisfied you would face persecution at the hands of the Nigerian authorities and general public, for being involved in a same-sex relationship.
[37] I find you have established your subjective fear.
[38] The overall objective evidence supports your claim for Convention refugee protection based on membership in a particular social group, namely sexual orientation as a bisexual woman.
[39] According to NDP on Nigeria in Exhibit 3, in particular Item 2.1, the Nigerian government commits significant human rights issues, including unlawful and arbitrary killings, extrajudicial killings, forced disappearances, torture, arbitrary detention, substantial interference with rights of peaceful assembly and freedom of association, in particular for lesbian, gay, bisexual, transgender and intersex LGBTQ persons.
[40] Item 2.8 further states that Nigerian law criminalizes same-sex conduct, as well as public show of same-sex amorous relationships, same-sex marriages and the registration of clubs, societies and organizations that support LGBTQ.
[41] The Same-Sex Prohibition law effectively renders illegal all forms of activities supporting or promoting LGBTQ rights. According to this law, anyone convicted of entering into a same-sex marriage or civil union, may be sentenced for up to 14 years of imprisonment. Following passage of this law, LGBTQ persons reported increased harassments, threat against them based on their perceived sexual orientation or gender identity. News reports on LGBT advocates report numerous arrests.
[42] According to Human Rights Watch, the law had become a tool used by police and members of the public to legitimize human rights violation against LGBTQ persons such as torture, sexual violence, arbitrary detention, extortion, violations of due process rights.
[43] With respect to societal treatment, Item 6.2 renders that Nigeria has been cited as one (1) of the most homophobic countries in the world, not only due to the severe incomprehensiveness of its legislation, that criminalizes same-sex but also for discriminatory and violent treatment of LGBTQ people in the form of blackmailing, physical, psychological abuse by authorities and the public, kidnappings, extortion, harassment, sexual attack subject to conversion therapies. Pressures to marry and involuntary outing by family and society members.
[44] I also note that under the SOGIE Guideline section 5.11, being compelled to conceal one (1) SOGIE identity, constitutes a serious interference with fundamental human rights, that may therefore amount to persecution, when a claimant cannot be expected to conceal their sexual identity as a way to avoid persecution in their country of reference.
[45] You have testified today to this extent citing that while in Nigeria, you had to conceal and keep secret your sexual orientation, as a bisexual woman.
[46] In summary, I’m satisfied that based on your identity, as a bisexual woman, there’s a serious possibility you would be subjected to hate crime, mob violence, imprisonment, torture and even death.
[47] Based on all the evidence before me, I find you have established a well-founded fear of persecution, on account of your identity, as a bisexual woman in Nigeria. You fear police, authorities, Nigerian community, as same-sex relationship is criminalized in Nigeria.
[48] I find it would be objectively unreasonable for you to seek protection of the authorities in Nigeria, in your particular circumstances.
[49] So adequate state protection is not available for you, as you fear the State.
[50] A viable internal flight alternative is also not available for you because the federal laws of Nigeria, criminalizing same-sex relationships, are applicable throughout the country.
[51] So a viable internal flight alternative does not exist for you in your particular circumstances.
[52] Having considered all of the evidence, I find there is a serious possibility you would face persecution in Nigeria pursuant to section 96 of the Immigration and Refugee Protection Act.
[53] I find you to be a Convention refugee.
[54] Your claim is accepted.
———- REASONS CONCLUDED ———-