2022 RLLR 104
Citation: 2022 RLLR 104
Tribunal: Refugee Protection Division
Date of Decision: October 26, 2022
Panel: Avril Cardoso
Counsel for the Claimant(s): Naga S. Obazee
Country: Nigeria
RPD Number: TC1-06806
Associated RPD Number(s): N/A
ATIP Number: A-2023-01023
ATIP Pages: N/A
REASONS FOR DECISION
[1] XXXX (the “claimant”), a citizen of Nigeria is claiming refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the “IRPA“)[1].
PROCEDURAL HISTORY
[2] This claim was previously decided through a Refugee Protection Decision (RPD) decision dated November 25, 2021 in which the Member found that the claimant was a Convention Refugee.
[3] The Minister appealed this decision. The Refugee Appeal Division (RAD) granted the appeal in its July 28, 2022 decision and returned the matter to the RPD for redetermination. The RAD found errors in the RPD’s credibility findings which formed the basis of the claimant’s identity as a bisexual woman. The RAD directed the RPD to canvass its credibility concerns about the relationship between the claimant and the sponsor in her application for a study permit and apparent inconsistencies with her Islamic birth certificate.
ALLEGATIONS
[4] The claimant’s allegations are fully set out in her Basis of Claim form (BOC)[2]. In summary, she fears returning to Nigeria because she is bisexual and faces forced marriage in her country.
DETERMINATION
[5] Neither counsel referred to the Gender or SOGIESC Guidelines. However, as they are applicable to the issues in this claim and to the claimant, I have considered and applied the Chairperson’s Gender Guidelines[3] and the Chairperson’s Guideline 9 (SOGIESC)[4] in coming to my decision.
[6] I find that the claimant has established a serious possibility of persecution on a Convention ground, namely her membership in the particular social group of bisexual women.
ANALYSIS
[7] At the hearing, I identified the issues as credibility, state protection and internal flight alternative. I have focused my analysis on the claimant’ s sexual orientation as this issue is dispositive of her claim.
Minister’s Intervention
[8] The Minister intervened in person regarding issues of credibility and program integrity.[5] In summary, the Minister has credibility concerns about the claimant’s religious identity as a Muslim because research it conducted did not establish that the claimant’s paternal grandfather
was the XXXX as she declared in her narrative. Based on the identity of the claimant’ s sponsor in her application for a study permit, the Minister calls into question the family lineage other paternal grandparents and their religious identities as Muslims because the sponsor identifies as a Christian. The Minister submits that these concerns impugn the claimant’ s credibility regarding her SOGIESC because she declared that the Islamic practice of separating male and female children in school may have contributed to her SOGIESC identity.[6]
Identity
[9] The claimant has established her persona! and national identity based on her testimony, passport and birth certificate.[7]
Credibility
[10] The claimant is a twenty-five-year-old female. She testified that she is Muslim. She speaks English and Yoruba. She has a university level of education. She worked as an XXXX in her country. In Canada, she has worked in a warehouse (general labour) and is currently employed as a XXXX.
[11] In assessing her credibility, I am guided by jurisprudence from the Federal Court and by the Gender Guidelines. Section 7.1 of the Gender Guidelines requires Members to consider the impact of coercive control when evaluating credibility in cases involving gender considerations. Section 6.2 instructs Members to take an intersectional approach taking into account the historical and social context based on a claimant’s identity factors and lived experience. In Manege, Justice Kane states that the Guidelines encourage the Board to consider an applicant’s testimony “in accordance with their circumstances and as persons coming from societies that operated in a different cultural milieu than Canada”.[8] In another Federal Court decision, the Court found that the RPD should have considered whether cultural differences might offer an explanation why the female applicant decided to answer her door the night she was attacked.[9] In Olah, the Federal Court noted that the experiences of refugee claimants can be shaped by cultural norms or backgrounds that are not shared by the decision maker.[10] In Okpanachi, the Court held that the RAD failed to tum its mind to how the claimant’ s experiences would have contributed to the omission and inconsistencies.[11] In Odia, Justice Gagné held that the principles enshrined in the Gender Guidelines must be applied in a meaningful way.[12]
Minister ‘s concerns
Mr. XXXX is not a blood relative
[12] The claimant testified that XXXX (“IO”) is a family friend on her mother’ s side. I referred to a letter dated XXXX, 2019[13] which formed part of her study permit application in which IO identifies the claimant as his niece. The claimant denied a familial blood relationship and said in Nigerian culture, it is common to refer to an older person as an uncle. She said IO sees himself as an uncle.
[13] I also asked the claimant for her response regarding the fact the IO indicates that he is a Christian in his affidavit.[14] She said that to the best of her knowledge IO is a Christian.
[14] I find that IO is nota familial relative to the claimant. I found her testimony to be credible. It was spontaneous and without embellishment. It is also consistent with her narrative regarding her mother’s Christian identity prior to marriage and her friendship with IO who identifies as a Christian.
Claimant ‘s paternal grandfather is a XXXX
[15] In her narrative, the claimant wrote that her paternal grandfather XXXX was the XXXX in Lagos. I informed her that the Minister indicated in its submissions that it could not locate her grandfather’ s name as a XXXX for Lagos in the website for the Lagos Central Mosque and that the XXXX was a person with a different name. The claimant testified that her paternal grandfather’s name is correct and that he is the XXXX of the XXXX in Lagos State. She said that there are many mosques in Lagos State and her grandfather is only the XXXX of the XXXX mosque.
[16] I find that the claimant has credibly established that her grandfather is the XXXX of a mosque in Lagos. She submitted a photo of a Fidau prayer ceremony for XXXX, XXXX Mosque, XXXX, a photo of a framed picture of XXXX Central Mosque, XXXX, Lagos and a poster about the final burial ceremony of XXXX Mosque in XXXX Local Government, Lagos.[15] I did not see anything in these documents to doubt their genuineness nor was any evidence raised to dispute the authenticity of this documentary evidence and they, along with the claimant’s testimony are sufficient to establish that her paternal grandfather was the XXXX of the XXXX mosque in Lagos. I also rely on the jurisprudence set out above and recognize that cultural differences can contribute to how the claimant expressed the identity of her paternal grandfather and his role as a XXXX of a mosque in Lagos in her narrative and so do not impugn her credibility.
The claimant ‘s father died
[17] The claimant testified that her father died in 2009. She submitted a medical certificate confirming his death which she said her mother obtained from the hospital where he died. When asked why she did not provide a death certificate from the government, she testified that in the Islamic culture, it is male dominated. Her mother was not accepted as she was a Christian and then converted to the faith after marriage. She said her mother is not accepted by her father’s family and furthermore she is not the only wife. She said her mother was only able to obtain verification other father’s death from the hospital.[16]
[18] I find that the claimant’s father died on XXXX, 2009. In assessing her explanation about her mother’s inability to obtain the government issued death certificate, I have considered the Gender Guidelines and the patriarchal culture described by the claimant after her father <lied and in the absence of any male siblings. While I note a minor discrepancy in the date of death indicated in her narrative, I find that this does not impugn the credibility of the medical note as the claimant would have been XXXX years old at the time of her father’s death and relies on dates given to her through her mother.
The claimant ‘s Islamic birth certificate is genuine
[19] The claimant submitted her Islamic birth certificate[17] to corroborate her Islamic religious identity. The RAD member noted some inconsistencies on the document regarding the names of the claimant’ s parents. When confronted with these apparent inconsistencies, the claimant testified that the names handwritten in the left hand margin are all names given to her. She said the name XXXX is her given name in Yoruba. She said XXXX is her father’s Muslim name and XXXX is her Mother’ s Muslim name. The other names handwritten on the birth certificate were given to her. Her father’s name on his celebration of life poster is XXXX in Sheriff which bears similarity to his name on the Islamic birth certificate. The claimant also submitted a primary school certificate which indicates that she attended XXXX and Primary School for XXXX years until XXXX 2006.[18] She also submitted a receipt from this school for payment in 2001.[19] This is materially consistent with her education listed on the Schedule A form.[20]
[20] I accept the claimant’ s explanation. In assessing her credibility through the religious and cultural lens of the society where she lived, her explanation is reasonable. The birth certificate is not in English and may be in both Arabie and Yoruba and therefore spelling differences would not be unreasonable when translated into the English language, which is based on the Latin script unlike Arabie or Yoruba. Her date of birth matches her other documents and I note a reference in the footer which states XXXX which is part of her grandfather’s name. There is nothing on the face of the supporting documents which causes me to doubt their authenticity. Therefore based on claimant’s Islamic birth certificate, attendance at a Muslim school and her testimony, I find that she is an adherent of Islam.
Consequential issues with the claimant ‘s Muslim identity are not borne out
[21] The Minister’s concerns regarding family relationships which stem from IO are not borne out based on the claimant’s credible testimony about her relationship with IO. As I have found that there is no familial relationship, the chain of relationships including religious identity which emanate from IO do not impugn the claimant’s relationship to her paternal grandfather or her identity as a Muslim.
Misrepresentation in study permit detracts from credibility
[22] The claimant testified that her father’s family was responsible for her financial support after his death in 2009 and it was a very patriarchal system where females had no authority. She said her uncle XXXX was authorized to give her money for her education but she could not ask for documents or other things. She said as her father was dead and neither she nor her mother could obtain the documents required to apply for a study permit, her mother reached out to IO. She testified about being humiliated in high school because her fees were late and her name was put on a board of students with unpaid fees. She said she had to beg her uncle to pay the fees. The claimant testified that it is very difficult in the Islamic culture for women and since her father died and with the absence of male siblings, life was difficult for her and her mother. She said her mother was a local businesswoman who operated a small store as a means of survival.
[23] While I empathize with the claimant’s situation and the role that gender played in her circumstances, at the time when her study permit was submitted, she had not yet faced forced marriage. Her study permit was submitted on XXXX 2019.[21] She declared in her narrative that the issue of forced marriage was raised in XXXX 2019.[22] It is well established in jurisprudence that providing fraudulent travel documents where a claimant is at risk and trying to flee their home country does not impugn their credibility. However in these circumstances, the claimant was not yet facing forced marriage and was not at risk such as is contemplated in the jurisprudence. I draw a negative inference against her credibility. This impact to her credibility is mitigated because I have found the claimant to be credible regarding her SOGIESC profile which would have existed at the time she filed her study permit and same sex relationships are illegal in Nigeria.
The claimant was being coerced into marriage
[24] The claimant testified that her paternal grandfather is very popular in the area and in Muslim states. She said at celebrations such as Ramadan, her grandfather meets with other imams and as such networks with them and the broader Muslim communities.
[25] She testified that marriages are arranged in this culture and females are merely notified that you are being given to a particular family. The claimant said she does not have a choice and must comply. She explained that men are the head of the family and her mother has no say or control. She said if her father was alive, he could have opposed the marriage being arranged for her. The claimant said marriages are arranged when women reach a certain age in the Islamic way so that women do not fornicate or engage in other behaviour deemed inappropriate.
[26] I find that the claimant is faced with forced marriage. She provided detailed and spontaneous testimony about arranged marriages which is consistent with the objective evidence.[23] As well she submitted a letter confirming her employment at the office of XXXX[24] which corroborates her narrative that she worked at this office and the prospective husband is the nephew of her former boss.
Delay
[27] The claimant came to Canada in XXXX 2019 and made her claim for protection in XXXX 2020, about ten months later. When asked to explain this apparent delay, she testified that she came to Canada based on a study permit and was financially cut off from her father’s side of the family in XXXX 2020. She was unable to recall when her aunt told her about a refugee claim. She applied for an extension to her study permit in XXXX 2020 which was approved until XXXX 2022.[25]
[28] I find that the claimant’s subjective fear is not diminished by the apparent delay in filing her claim for protection. Her study permit was valid until XXXX 2020 and she applied for an extension prior to its expiry. Her plans to study were at risk in XXXX 2020 when she found out that her financial support was no longer available. As the claimant took steps to protect her legal status in Canada, I find that her actions are consistent with someone who fears return to their country.
The claimant is bisexual
[29] I find that the claimant is a bisexual woman. Her testimony was spontaneous, detailed, forthright and without embellishment.
[30] She testified that for her being bisexual means having feelings for males and females however she prefers females because she has been through a very difficult life. She said she attended a Muslim elementary school where males and females were segregated and she was always with girls which may explain her sexual orientation. The claimant testified that she did not understand her feelings at first but did so over time. She testified that non-heterosexual sexual orientation is taboo culturally and illegal. She said under Muslim teachings you cannot disclose such a sexual orientation based on the imam’s preaching. The claimant testified that she kept her feelings a secret because you have to be certain you know who you disclose your SOGIESC to otherwise it may be reported and her parents would know. She said LGBT people are flogged in public and society believes they are possessed by bad spirits.
[31] The claimant testified about meeting XXXX, her same sex partner in high school and she said they also attended university together. She said they were just friends at first but while attending university things changed when they attended a surprise birthday party. She said she felt hesitant at first because XXXX was dating males but one day they kissed each other in a spontaneous way and the relationship shifted. The claimant said they were attending university in XXXX however there were many Nigerian students and so they kept their relationship a secret.
The claimant provided XXXX birthday and described her personality and said she liked to cook. She said XXXX kept her going since 2009 when her father died and she was going through many difficulties. The claimant described her experiences as a bisexual woman in the United States during internships there since XXXX had also accompanied her to the U.S. although their internships were in different states. She said XXXX remained in the U.S. and their relationship eventually ended.
[32] The claimant’s testimony about disclosing her SOGIESC to her mother was most compelling. She said it was not easy to tell her mother and it took her mother time to understand. She said her mother’ s initial reaction was that this was a sin and her mother worried about the views of society in Nigeria and feared for her safety and treatment.
[33] The claimant described her participation at the 519 in Canada and said she attended programs which helped her to learn more about herself and said it was helpful to interact with others in the LGBT community where you could be heard without discrimination or judgment. She said she has not been in the right frame of mind currently to consider dating or a relationship but she met two people. She met one person at a party and another through the 519 group sessions. The claimant said she is currently just trying to cope with her mental health issues and the lack of family supports is very difficult for her.
[34] To corroborate her SOGIESC profile, she submitted a letter from XXXX and the content is materially consistent with her narrative and testimony. She also submitted a letter from the 519 and photos of herself and XXXX.[26] An affidavit from her mother also corroborates the claimant’ s testimony about her SOGIESC.[27] The claimant also submitted a medical report to corroborate her mental health issues which mentions depression and treatment from a counsellor.[28]
Credibility conclusion
[35] While there is a concern about the misrepresentation in the claimant’s study permit, the remaining credible evidence set out above overcomes this credibility concern regarding the study permit. There is sufficient credible evidence to establish the claimant’ s profile as a bisexual woman.
Well-Founded Fear of Persecution
[36] The objective evidence is consistent with the claimant’s account of fearing persecution as a bisexual woman in Nigeria.
[37] A U.K. Home Office report states that Nigeria tends to perform poorly on gender inclusiveness indices. Women generally remained marginalized. Many customary practices did not recognize a woman’s right to inherit her husband’s property and many widows became destitute when their in-laws took virtually all the deceased husband’s property.[29]
[38] According to the Australian Department of Foreign Affairs and Trade report, despite constitutional protections, gender-based discrimination and violence remains a significant risk for women and girls. Nigeria remains a patriarchal society in many respects.[30] Several federal and state laws criminalize same-sex sexual acts and there are no laws explicitly protecting sexual minorities from targeted violence or discrimination. Maximum penalties are 14 years imprisonment. There are widely reported cases in recent years in which LGBTI individuals have been arrested based on their perceived sexual orientation or gender identity.[31] All socioeconomic groups in Nigeria hold negative views of homosexuality and LGBTI persons can face job loss, being compelled to leave their village or neighbourhood or being subjected to violence.[32]
[39] A Netherlands source also notes that same-sex marriage is prohibited and Islamic criminal law criminalizes sex between individuals of the same sex. Members of the LGBTI community do not enjoy legal protection against discrimination despite some slight improvement in recent years.[33] Discrimination and gender-based violence against women are a common and widespread phenomenon in Nigeria, and the authorities again largely failed to protect women against these forms of violence during the reporting period.[34] Inheritance law is based on a system in which inheritances are reserved for male descendants. Both land ownership and customary law exclude women from property ownership and a widow’ s land is usually seized by family members.[35]
[40] The U.S. Department of State report says that significant human rights abuses included the existence or use of laws criminalizing consensual same-sex sexual conduct between adults and forced marriage.[36]
[41] A response to information request about forced marriage says that consequences of refusing to marry include neglect and ostracism, physical violence and rape. Forced marriage is protected by legislation.[37]
State Protection
[42] A state, unless in a condition of complete breakdown, is presumed to be capable of protecting its citizens. To rebut the presumption of state protection, a claimant must provide clear and convincing evidence.
[43] Given that the state is the agent of persecution, I find that it would be objectively unreasonable for the claimant to seek the protection of the state in her circumstances, and that adequate state protection would not be reasonably forthcoming
Internal Flight Alternative
[44] Given that the state is the agent of persecution with control over the entire country, I find that there is a serious possibility of persecution throughout Nigeria and therefore a viable IFA does not exist.
CONCLUSION
[45] Having considered all the evidence, I find that there is a serious possibility that the claimant would face persecution in Nigeria. I find that the claimant is a Convention refugee and I accept her claim.
(signed) Avril Cardoso
October 26, 2022
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1).
[2] Exhibit 2.
[3] Chairperson’s Guideline 4: Gender Considerations in Proceedings before the Immigration and Refugee Board, Guidelines Issued by the Chairperson pursuant to section 159(1)(h) of the Immigration and Refugee Protection Act, effective July 18, 2022.
[4] Guideline 9 on Proceedings before the Immigration and Refugee Board of Canada involving Sexual Orientation, Gender Identity and Expression and Sex Characteristics, issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, effective as of May 1, 2017, revised December 17, 2021 (the “SOGIESC Guideline” or “Guideline 9”).
[5] Exhibit 12.
[6] Exhibit 12, pp. 8 and 9.
[7] Exhibits 1 and 10.
[8] Manege v. Canada (Citizenship and Immigration), 2014 FC 374 at para. 29.
[9] Plaisimond v. Canada (Citizenship and Immigration), 2010 FC 998 at para. 37.
[10] Olah v. Canada (Citizenship and Immigration), 2019 FC 401 at para. 26.
[11] Okpanachi v. Canada (Citizenship and Immigration), 2022 FC 212 at para. 24.
[12] Odia v. Canada (Citizenship and Immigration), 2014 FC 663 at par. 18.
[13] Exhibit 12, p. 35.
[14] Exhibit 12, p. 36.
[15] Exhibit 13, pp. 16-18.
[16] Exhibit 14, p. 1.
[17] Exhibit 13, pp. 11 and 12.
[18] Exhibit 13, p. 22.
[19] Exhibit 13, p. 26.
[20] See Exhibit 1.
[21] Exhibit 12, p. 2.
[22] Exhibit 2, see narrative para. 17.
[23] See Exhibit 8, p. 1.
[24] Exhibit 10, p. 2.
[25] Exhibit 12, p. 87.
[26] Exhibit 10, pp. 21-24, 28, and 32-33.
[27] Exhibit 10, pp. 25-26.
[28] Exhibit 9, p. 6.
[29] Exhibit 3, National Documentation Package (NDP) on Nigeria (June 30, 2022), Tab 1.7, para. 16.1.2, 16.1.3.
[30] Exhibit 3, National Documentation Package (NDP) on Nigeria (June 30, 2022), Tab 1.8, 3.75, 3.78, 3.94, 3.95, 3.98.
[31] Exhibit 3, National Documentation Package (NDP) on Nigeria (June 30, 2022), Tab 1.8, 3.98.
[32] Exhibit 3, National Documentation Package (NDP) on Nigeria (June 30, 2022), Tab 3.99 and 3.100.
[33] Exhibit 3, National Documentation Package (NDP) on Nigeria (June 30, 2022), Tab 1.34, 3.4.4.
[34] Exhibit 3, National Documentation Package (NDP) on Nigeria (June 30, 2022), Tab 1.34, 3.4.5.
[35] Exhibit 3, National Documentation Package (NDP) on Nigeria (June 30, 2022), Tab 1.34, 3.4.5.
[36] Exhibit 3, National Documentation Package (NDP) on Nigeria (June 30, 2022), Tab 1.34, 3.4.5.
[37] Exhibit 3, National Documentation Package (NDP) on Nigeria (June 30, 2022), Tab 2.1, p. 1.