Citation: 2021 RLLR 69
Tribunal: Refugee Protection Division
Date of Decision: April 30, 2021
Panel: Isis Marianne van Loon
Counsel for the Claimant(s): Jerome Fanmi Olorunpomi
Country: Nigeria
RPD Number: VC0-03525
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A
DECISION
[1] MEMBER: This is the decision of the Refugee Protection Division in the claim of XXXX XXXX XXXX, a citizen of Nigeria claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act.
[2] In assessing this case, I have considered and applied the Chairperson’s Guidelines on Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.
ALLEGATIONS
[3] Your allegations are set out in your Basis of Claim form and by your testimony and the following is a very brief summary.
[4] You are a bisexual man, and you fear persecution in Nigeria on this basis.
DETERMINATION
[5] I find that you are a Convention refugee, as you’ve established a well-founded fear of persecution based on a Convention ground.
ANALYSIS
Identity
[6] I find your identity as a national of Nigeria is established by your testimony and the supporting documentation on file, including a certified true copy of your passport in Exhibit 1.
Credibility
[7] The presumption before me is that your testimony is true. However, this could be rebutted in appropriate circumstances, such as inconsistencies, contradictions, omissions or undetailed testimony. The presumption does not apply to inferences or speculation for which there is no evidentiary basis.
[8] You provided a number of credible documents to support your claim. There are, I believe it’s in Exhibit 10, messages between friends in Nigeria showing your attempts to locate your former partner, XXXX (ph), Exhibit 10 has a statutory declaration from your wife, stating that you’re currently separated and confirming that were involved in a same-sex incident in July of 2016 and that you denied it at the time. She said that you had relocated to Lagos, as a result of the harassment, due to rumors in the community and in March 2017, you confessed to her. She said that men claiming to be police detectives have come to ask questions about you, to her residence in Nigeria. She said that after living in Canada for two years now, she’s gone to counselling and she better understands the complexity of gender identity and sexual orientation. She states that you are a good father and that she has vowed to ensure that no matter what her own feelings are, your children would be able to continue to have a relationship with you. And in fact, your wife and children are accepted as refugees on March 16th of last year. She has included her photo ID, as well as the cover page of her RPD decision. There’s an affidavit from XXXX XXXX confirming that you’ve known each other for over two years and have been in a relationship. XXXX speaks of your strong bond and states that you’ve been very supportive in his journey to heal, after the trauma he endured in Nigeria, due to his bisexuality. He described his joy when you were able to find a place in the same building, so that you could be close together. There are number of documents and photos showing your involvement first in Montreal’s LGBTQ Centre and then the 519 in Toronto in Exhibits 5, 6, 9, 10 and 12. These include photos of 2019 Pride, where you’re pictured with your current beau, XXXX. There’s a XXXX XXXX showing you’ve been diagnosed with XXXX and it’s in the severe range with disassociated features and that this is consistent with you having experienced threats, harassment and violence, that’s Exhibit 9. Exhibit 11 has a letter from your neighbour in Lagos who confirms that two detectives have come in early 2019 and again, of August 2020, wanting to contact you about an ongoing investigation. There’s a second letter from a friend that you lived with in Montreal confirming that you attended many programs and events at the Montreal LGBTQ+ Community Centre. Both of these letters are accompanied by photo ID.
[9] So, I found these documents relevant and they serve to corroborate your allegations that you are a bisexual man currently involved with another man here in Canada.
[10] I found you to be straightforward and forthcoming. There were no inconsistencies between your testimony or contradictions with other evidence before me. You didn’t appear to embellish your description of events and actions, even when it might have appeared favorable to your claim to do so. And your narrative corresponds to the ample objective country evidence about conditions in Nigeria, with respect to members of the LGBT community.
[11] Accordingly, I have no reason to doubt the central element underpinning your claim for protection. I’ve accepted that you are LGBT, as a bisexual man and that you have, yourself, experienced threats, harassment and briefly detention.
[12] Given the foregoing, I accept that you subjectively fear persecution on that basis in Nigeria.
Nexus
[13] I find the persecution you face has a Nexus to one of the five Convention grounds, that of membership in a particular social group, as you are a member of the LGBTI community, a bisexual man.
[14] And therefore, I’ve assessed this claim under section 96.
Well-Founded Fear
[15] In order to be considered a Convention refugee, you have to demonstrate a well-founded fear of persecution. This includes both a subjective and an objective basis for that fear and I’ve already accepted your subjected fear.
[16] Based on your testimony, supporting documents and the country condition documents, I find you have a well-founded fear of persecution for the following reasons.
[17] You said in your narrative that you first experimented with another boy at age 12 and then after that, you were deeply ashamed. You met and married your wife in 2005. You have three children who were born in 2005, 2006 and 2015. You have since separated with your wife. You met a man named XXXX XXXX in 2012 at a corporate event, you became close. In mid-July of 2016, you met at a hotel in Abuja, this time XXXX had booked the hotel and you were not in the corporate hotels you normally work with, which would have guaranteed your privacy. You were exposed by a room service worker who walked in and found you close together and called the manager. The manager believed the worker, who was alleging that you were having a gay affair and more people came, as they heard the arguments. You were afraid of mob violence, so you urged the manager to call the police. You were taken into custody and detained for several hours by police. You spoke with the DPO, the senior officer told them it was a mistake. You told them about your identity, your respected position in the community and at work and that you are a member of the Lagos police community relationship committee. You explained to me that these committees are very important to the police, as they raise money and assist them to find funds for various activities and machines that they need. You were able to talk the officers into releasing you, after you paid money, fairly extensive sum, worth about 300 Canadian, under the table. You later returned to the station to negotiate avoiding a court case and after that, the police occasionally returned to collect money and the guys are giving you a briefing about the case. However, after this event, rumors in the community started and led to harassment of you and your family. You don’t know exactly how these rumors came about but you thought that a police officer from the station likely told someone in the close-knit community. You’ve tried but were unable to locate XXXX since that time. You went to the U.S.A. in XXXX of 2016 to cool off you said, the pressure and the emotion had been too much, and you needed to go somewhere to think things over and to try to get your life together. You didn’t want to go back to Nigeria, but you had your children, and you hadn’t told your wife and you felt you had to go back home. Your wife and your children began to experience harassment in the community, due to the rumors about your sexuality. When your wife asked you, you initially denied that you were bisexual. You took your family to the U.S.A. in XXXX of 2017 to get away. You said that you felt like you had to tell the truth to your wife, and you put her through a lot, and you couldn’t keep denying it. So, while in the U.S.A., you told her that you did have an affair with another man. You said initially she was surprised. She’d known you for so many years, she didn’t think you would be involved in this way and you’d been denying it all along and then she was disappointed, and she felt betrayed and her heart was broken. You told her that you wanted to try and work on it but then somebody from Nigeria called and told her she’d been expelled from the church because of this and then she got mad, and she said she’d had enough. She took the children and returned to Nigeria. You told her that you couldn’t go back with them. You said you hadn’t been sleeping, you were afraid and whenever somebody phoned, you thought it was the police and you just felt that you couldn’t go back. You said that she should stay in the U.S. with you, but she said no. You’ve been separated since then and she’s told you that she doesn’t want to have anything to do with a romantic relationship with you anymore. Your passport expired in December 2018 and you’d overstayed the six months allowed for your U.S. visa. Your relatives in Nigeria told friends and relatives in the U.S.A. and they were threatening to get you deported. You contacted an American lawyer, and you were told that you would have to pay 7,000 dollars U.S., which you couldn’t afford in order to get status in the U.S. Fearing deportation under the Trump-era policies, you crossed into Canada on XXXX XXXX, 2018 to claim asylum. Since coming to Canada, you became actively involved first in the Montreal LGBT Centre and after moving to Toronto, the 519 LGBT Centre and in Toronto, you met XXXX in September of 2018. Initially, you and XXXX were just friends but this developed into a relationship over time and the two of you are still together as a couple, living in the same house. As I mentioned, XXXX provided an affidavit in which he corroborated the history of your relationship. You told me that XXXX works nights and you offered to wake him up if his testimony was helpful.
[18] As I found you to be credible and as XXXX provided a credible affidavit, I did not find it necessary to wake him but appreciated that we could do so, if we needed to.
[19] Now, in order to assess an objective basis of a well-founded fear, a claimant can rely on the treatment of similarly situated persons as well.
[20] And I would suggest that XXXX experience in Nigeria would fit this category. He was exposed and assaulted, as you testified and ended up in the hospital. In his affidavit, XXXX says that you’ve been very supportive in his journey to heal, after the trauma that he experienced in Nigeria, with regards to his bisexuality. You told me that for those who are there in Nigeria, who are of the LGBT community, it is really, really bad. You said people don’t want to have anything to do with you. They say bad things about you. Family members won’t have anything to do with you. You’re outcast. Everybody hates you. And then you start to feel really badly about yourself. For any small thing, you could be mobbed or attacked and that you’ve even seen news reports of people who were killed or lynched, just on suspicion of being LGBT.
[21] The objective country documentation is consistent with your testimony of fearing persecution in Nigeria. Homosexuality and bisexuality are against the law. Engaging in same-sex sexual relations is illegal and can result in prison terms of up to 14 years. Furthermore, the chances of getting a fair trial, once arrested or prosecuted, are considered non-existent, this is according to NDP 6.2 and 6.7. Item 6.2 states, Nigeria is a homophobic country. There was a 2017 report on Human Rights Violations based on Sexual Orientation and Gender Identity and Expression in Nigeria, documenting a total of 247 victims and 210 violations. In January, the organization issued another report showing the results of a survey on social perception in LGBTI people in the country. It revealed that the vast majority of Nigerians, 91% do not believe that people are born homosexual, 83% would not be willing to accept a family member who was homosexual, 90% support the Same-Sex Marriage Prohibition Act, which is what I referred to earlier, criminalizing it, and think that Nigeria would be a better country without homosexuals and 56% say homosexuals should be denied access to public services.
[22] Another survey at NDP 6.5 found that 55% of the LGBT responded and surveyed, had been physically or sexually attacked or threatened with violence, either at home or in the workplace in the past 10 years. The harsh laws enforced in Nigeria and its effects on the LGBT people have been widely documented. In fact, Nigeria has been cited as one of the most homophobic countries in the world. Not only due to the severity of comprehensiveness of its legislation that criminalizes same-sex relations, but also for the discriminatory and violent treatment given to LGBTI people in the form of arbitrary arrest, blackmail, physical and psychological abuse by the police and kidnapping, extortion, harassment, sexual attacks and subjected to the conversion therapies, pressure to marry and involuntary outing by family and society members.
[23] Accordingly, I conclude that your fear of persecution in Nigeria is indeed well-founded.
State Protection and Internal Flight Alternative
[24] In this case, one of the agents of persecution, a major one, is the State. The persecution would face, if returned to Nigeria, is at the hands of the authorities.
[25] Accordingly, I find there is no state protection available to you and the presumption of state presumption has been rebutted. I note that you were actually the one who asked for the police to be called, as you feared mob violence but from that point forward, there were rumors in the community, that most likely came from the police and you were mistreated, and they kept returning. So, there was always that threat hanging over you, if you didn’t continue to pay those bribes.
[26] Now, the State of Nigeria is an agent of harm and has control over all of its territories. Furthermore, as the documents have shown, the general population is another significant agent of harm and homophobic attitudes and actions are prevalent throughout Nigeria.
[27] Therefore, I find there is no viable internal flight alternative, where you could safely relocate in Nigeria.
CONCLUSION
[28] You have established a well-founded fear, there is no adequate state protection and no viable internal flight alternative, therefore, I conclude that you face a serious possibility of persecution, if returned to Nigeria, on the basis of your membership in a particular social group, as an LGBTI individual.
[29] Based on the totality of the evidence, I conclude you are a Convention refugee.
[30] Accordingly, I’m accepting your claim.
———- REASONS CONCLUDED ———-