Citation: 2021 RLLR 76
Tribunal: Refugee Protection Division
Date of Decision: December 21, 2021
Panel: Lesley Stalker
Counsel for the Claimant(s): Daniel Etoh
Country: Nigeria
RPD Number: VC1-06497
Associated RPD Number(s): N/A
ATIP Number: A-2022-01594
ATIP Pages: N/A
DECISION
[1] MEMBER: This is a Bench decision in the refugee claim of XXXX XXXX XXXX. Ms. XXXX is a citizen of Nigeria. When she initially filed her claim, she also filed a claim on behalf of her son. I am going to switch from third person to first person. Your son, XXXX XXXX XXXX was born in the US and as a citizen of that country. Both you and your son were seeking refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act. At the outset of the hearing, your Counsel advised that you would not be advancing any allegations of persecution or harm on behalf of your son against the US and that you would therefore be withdrawing your claim on behalf of your son. And so, the hearing focussed just on the risk that you would face in Nigeria.
ALLEGATIONS
[2] You set out your allegations in your Basis of Claim form and in the updated narrative, which the Board received on December 10, 2021. In effect, you say that you were at risk on two (2) counts. The first was at the hands of your former mother-in-law, XXXX. You say that XXXX seeks to kill you and to take your son away from you, and that her anger stems from the fact that you had a relationship with her husband and with her son. You also say that you are at risk of persecution in Nigeria because you are a bisexual woman.
DETERMINATION
[3] I find that you are a Convention refugee pursuant to section 96 of the Act because you are a bisexual woman.
ANALYSIS
Identity
[4] The first question is whether I am satisfied that you are who you say you are and I am. I find that you have established your identity through your testimony and your Nigerian passport, a certified true copy of which is on file.
Nexus
[5] The next question is whether your claim has a nexus or a Convention to any of the grounds, which are set out in the refugee Convention. These grounds include political opinion, religion, race, nationality, and particular social group. And I find that your fear of harm as a bisexual woman has a nexus to the Convention ground of particular social group. I therefore assessed that element of your claim under section 96 of the Act. Your fear of harm at the hands of your former mother-in-law does not have a nexus to any of the grounds in the refugee Convention. Rather, her actions are more in the nature of a personal vendetta against you, and I find that that aspect of your claim should be assessed under section 97 of the Act.
Credibility
[6] When assessing your credibility, I start from the Maldonado principle. This principle says that sworn testimony is presumed to be true unless there is good reason to doubt its truthfulness or its reliability. Overall, I found you were a credible witness. Your testimony accorded with the information in your Basis of Claim form and the revised narrative. You were born into a Muslim family in Nigeria. In your narrative, you describe a lengthy history of sexual and domestic violence dating back to childhood. You say the traumatic and unhappy childhood led you to become sexually active at a very young age. You entered a series of casual relationships sometimes with older men. One of these older men was known to you as the Colonel. While you were in a sexual relationship with the Colonel, you met XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, a man who was closer in age to you.
[7] In time, you came to know that XXXX was, in fact, the son of the Colonel. XXXX mother, XXXX, was incensed by you having a relationship with her husband and with her son. She threatened you and said that she would kill you if you had any kind of relationship with either of the men in her family. You took her threats seriously as she was politically very well connected and appears to have been wealthy. Her political connections relate to her being the daughter of the former Nigerian President, Obasanjo. In 2013, you and XXXX married in secret. He then left the country. This meant that you were quite vulnerable and you were run over by a motorcycle shortly after XXXX cautioned you that he had received a word that his mother was determined to harm you and that his mother had found out about the secret marriage. Your uncle was shot for no apparent reason while standing next to you.
[8] You fled to Dubai to get away from the risks posed by XXXX. In Dubai, you entered a relationship with a woman, XXXX, and with a man. Your husband found out about the relationship with the man and threatened to break off the marriage. To make a long story short, you persuaded XXXX to give you another chance. The two (2) of you went off to the United States on visitor’s visas. Shortly after arriving in the US, you learned you were pregnant. XXXX was angry. He refused to believe that the child was his and he walked away from the marriage. You gave birth in the US. You were unable to work there because you did not have status. You were living a very precarious lifestyle. After an unhappy and abusive marriage, you decided to try and regularise your status. You came to Canada and claimed refugee status here.
[9] So far, this story has focussed on your relationships with men. But in your narrative, you referred to sexual relationships with women dating back to your senior year of high school. Those were less relationships than sexual exploration, but you described the intimacy with female classmates in your senior year of school. You testified that XXXX, the friend and partner in Dubai, was your first real female lover and you said that relationship lasted approximately eight (8) months. You spoke movingly about your current partner, XXXX, with whom you have been living for close to two (2) years. You described how you met XXXX and the evolution of your relationship from a casual acquaintance to flat mates and then lovers. You said that your son, XXXX, who is now six (6) loves XXXX dearly and that the daycare treats her as XXXX second mom.
[10] You corroborated your account with many documents. Some of the documents were very difficult to read due to the poor quality of the image, but I was able to read them and to glean the most important information. The documents include the following. One (1), affidavit of your mother. Your mother confirms that you and she had a difficult relationship for many years. She corroborates many elements of your narrative including the fact that you tried to tell her that you were being sexually abused by a relative when you were a child, your secret marriage to XXXX, your former mother-in-law’s anger towards you, your former mother-in-law’s attacks on you and on your maternal uncle, and your former mother-in-law’s demands and threats that you handover your son.
[11] Your father…two (2), your father, your sister and your brother also filed affidavits. Each of these affidavits confirms many aspects of your narrative. In particular, your father describes an incident relatively recently in which your former mother-in-law sent thugs to his home demanding that you surrender your son to her. Three (3), your maternal uncle filed an affidavit confirming that he was shot while standing beside you. He says that, when the police were asked to investigate, the police arrested him on false charges of robbery and he attributes this, both the shooting and the police refusal to investigate to XXXX influence in Nigeria. You filed an affidavit from XXXX, the woman whom you say was your female lover in Dubai and finally, six (6), you filed an affidavit from XXXX, your current partner in Canada.
[12] You filed a number of other documents, which corroborate your account, but I don’t feel it’s necessary to review them in detail here. I have no reason to doubt the truthfulness of any of these documents, which are detailed and speak frankly about some of the difficulties that you and they have had over the years. I noted that none of the affidavits from your family refer to your relations with women. I asked you about that and you said that they do not know you were bi. You explained that, in Nigeria generally and in the Muslim community in particular, same-sex relationships are unthinkable. In the Muslim community, they are haram or taboo. You said it would be impossible to tell your family about this, at least at this stage of your life. You hoped to tell your parents about your relationship someday, but are not yet at a stage where you can do so comfortably. You said that one (1) sister in the UK knows that you were bi. The other sister is a devout Muslim and you cannot bring yourself to tell her of your…about your sexual identity.
[13] In addition to these written documents, your partner, XXXX, testified about your relationship. XXXX spoke comfortably and easily about your relationship and the role you play in her life. I asked her whether her family in Nigeria knows about her relationship with you and she said she cannot tell them due to the enormous stigma and shame attached to any kind of same-sex activity. In view of your credible testimony, the many corroborative documents that you have filed and the credible testimony of your current partner, I accept the allegations that you have set out in your BOC and your revised narrative. More specifically for the purpose of this claim, I am satisfied that you are a bisexual woman who has had relationships with women as well as men since your teenage years.
Well-Founded Fear of Persecution
[14] In the next section, I focus on the risk that you would face in Nigeria as a bisexual woman. The first question I must consider is whether you have established a subjective fear and harm in Nigeria if people learn that you are bisexual. I find that you have. You said…you described witnessing two (2) men who were outed in effect in Nigeria. You were a child at that time. You said the men were dragged naked from the home where they had presumably been engaged in same-sex relation. They were beaten by the mob. You said that you did not see the outcome. Your mother forced you inside. You said that, in Nigeria, it’s not uncommon for such mob incidents to result in burning or killing of the victims of the violence and your mother did not want you to see that. You stated that you would face not only persecution, but prosecution in Nigeria, that you could be arrested and sentenced to 14 years imprisonment and that in parts of the country, in particular the north, which is subject to Sharia law, you could be sentenced to death.
[15] I considered whether the fact that you failed to claim refugee status in the US detracts from your subjective fear of persecution. You said that you had been in the US for a number of years, but did not know that you could claim refugee protection. A Sudanese man told you about that possibility and gave you the contact information of a clinic. But when you sought advice from the clinic, you were told that the deadline for filing the claim had passed. And in the circumstances, I find that your failure to claim asylum in the US does not detract from your subjective fear of harm. So, in short, I find that you have established a subjective fear of persecution in Nigeria.
[16] The next question I must consider is whether your fear is well-founded and I find that it is. Same-sex sexual activity is a criminal offence in Nigeria. The country reports in the Immigration and Refugee Board’s National Documentation Package on Nigeria says that Nigeria’s federal criminal laws prescribed up to 14 years in prison for same-sex sexual activities. And these reports also note that persons convicted of same-sex activity in states, which are governed by Sharia law may be sentenced to death by stoning. The 2019 report of the International Lesbian, Gay, Bisexual, Trans and Intersex Association, IGLHRC, found at item 6.2 of the NDP says that Nigeria is one (1) of the most homophobic countries in the world. This reflects both the severity and comprehensiveness of Nigerian legislation that criminalises same-sex relationship, but also reflects the discriminatory and violent treatment meted out to LGBTI persons who are subject to arbitrary arrest, blackmail, physical and psychological abuse by the police, kidnappings, extortion, harassment, sexual attack, subjection to conversion therapies, pressure to marry, and involuntary outing by family and society alike.
[17] The Response to Information Request at tab 6.7 of the NDP describes how bisexuality is perceived in Nigeria. The RIR quotes the executive directive of the Women’s Health and Equal Rights Initiative where the executive director states that any sexual orientation that has not had heterosexual is considered unnatural, demonic and immoral in Nigeria. Bisexuality is usually conflated with homosexuality or lesbianism by heterosexual communities, and bisexuals who are discovered engaging in same-sex activity may be lynched, beaten, arrested, ostracised and disowned by family and community. A person who was outed for engaging in same-sex sexual behaviour will be seriously ostracised by their family, harshly excommunicated and threatened.
[18] I also note that the country reports indicate that the situation for lesbian or bisexual women is particularly dire. The RIR referred to above refers to a passage or a report by IGLHRC. The report says that lesbian and bisexual women experience subtle and explicit pressures that all women in Nigeria face. These pressures include marriage, child rearing, sexual harassment, threats of rape, assault and a lack of legal support. And so, as a bisexual woman who has already experienced gender-based violence and discrimination, I find that you face a double risk. As stated by the RIR report, bisexual women face overlapping and intersecting spheres of discrimination in Nigeria. Nigeria is described as a patriarchal and sexist country in which women are disproportionately affected by gender-based violence, sexism and patriarchy.
[19] Having considered your testimony and the objective country reports, I find that you have established a well-founded fear of persecution.
State Protection and IFA
[20] The next question is, whether you can seek protection from the state? In the event that you face persecution on the basis of your sexual orientation, I find that you cannot. Indeed, the state is one of the actors or agents of harm. As noted above, same-sex sexual behaviour is criminalised in Nigeria and the police harass and extort members of the LGBTQ community. I therefore find that there would be no state protection available to you. And in terms of whether you can avoid persecution as a bisexual by relocating to another part of Nigeria, the country reports confirm that the laws which criminalise same-sex sexual activity apply throughout the country as do the homophobic attitudes that have been described above. I therefore find that you would not have a viable internal flight alternative too. Having found that you have a well-founded fear of persecution on the basis of your sexual orientation, I have not considered whether you would also require protection from your former mother-in-law.
CONCLUSION
[21] Having considered the totality of the evidence, I find that you are a Convention refugee because of your membership in a particular social group, namely your identity as a bisexual woman. I therefore accept your claim.
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