2022 RLLR 111

Citation: 2022 RLLR 111
Tribunal: Refugee Protection Division
Date of Decision: May 20, 2022
Panel: Joseph Berkovits
Counsel for the Claimant(s): Sunday Adeyemi
Country: Nigeria
RPD Number: TC0-01296
Associated RPD Number(s): TC0-01364, TC0-01365, TC0-01366
ATIP Number: A-2023-01023
ATIP Pages: N/A

 

DECISION

 

[1]       MEMBER: I am now going to give my reasons for TC0-01296 and the associated files. XXXX XXXX XXXX, the principal claimant and her children, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, the minor claimants, citizens of Nigeria, claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act or the IRPA. I have considered and applied the Chairperson’s Guideline 9, proceedings before the IRB involving sexual orientation and gender identity and expression and sex characteristics as well as the Chairperson’s Guideline 4, women refugee claimants fearing gender related persecution. The principal claimant was the designated representative for the minor claimants. I heard the claims jointly pursuant to the refugee protection division rule 5 point — 55. The names of all third parties have been redacted to their initials for privacy and safety reasons.

 

[2]       For the reasons given below, I find that you, the claimants, are Convention refugees because you have established a serious possibility of persecution in Nigeria on the basis of your membership in a particular social group, bisexual women and their children.

 

[3]       Your allegations are in summary. That as a bisexual woman, you face legal sanctions as well as harm from family members and people in your community, should you return to Nigeria. You also alleged that as the children of a bisexual woman, the minor claimants, or your children, would also face community disapproval and sanctions, should they return to Nigeria.

 

[4]       Your personal identities as citizens of Nigeria have been established by certified copies of your passports. I therefore find that you have established your identities on a balance of probabilities.

 

[5]       Given your allegations, your claims will be assessed pursuant to section 96 of the IRPA with the nexus being persons of a particular social group, bisexual women and their children.

 

[6]       Going to talk about credibility now. When a claimant swears that certain facts are true, this creates a presumption that they are true unless there is a valid reason to doubt their truthfulness. Hence, as a corollary, there is no general requirement for a claimant to corroborate sworn testimony that is uncontradicted and otherwise credible. In terms of your general credibility and in light of the evidence below, I have found you to be a credible witness and I therefore accept what you have alleged in your oral testimony and in your Basis of Claim form on both your own behalf and on behalf of the minor claimants. As the principal claimant, you provided detailed and credible evidence about your life in Nigeria as a bisexual woman. You described how you came from a traditional Christian family and grew up in an environment where same sex relationships were not mentioned.

 

[7]       You testified how at the age of 14, you met a slightly older female classmate in college and you — who you became close friends with and then entered into a romantic relationship with her. A relationship that left until you left school. You then testified about how you got married to your husband and how you had three (3) children together. You testified credibly about how you ultimately entered into a long-term relationship with a close female friend, E.O., who was somebody you met in church and who taught bible studies to your children. You detailed how you made every effort to keep this relationship a secret from your family and your community. However, you detailed how by 2019 September, your sister in-law, E.U., who was living with your family, accidentally discovered you and E.O. together. As you described it, your sister in-law operated under a type of traditional belief that made her believe that if she did not inform upon you to your husband and the rest of her family, some type of spiritual consequence where even death would befall your husband.

 

[8]       As you incredibly testified, when your husband and the rest of his extended family became aware of your sexual orientation, they demanded that you participate in a cleansing ritual, which you described as hazardous and demeaning. You testified credibly how you were frightened of this ritual, which you described as likely being physically dangerous to you and as well as not being in accordance with your spiritual beliefs as a Christian. You also testified about how your husband ostracized both you and your children as a result of his discovery of your sexual orientation and your refusal to undergo the cleansing ritual and how he treated you in an oppressive and demeaning manner. You described how when you refused to carry out your husband’s family’s demands, they made good on their threats to report you to the police. You detailed how even after you moved from your home city of Warri to Oyo with your children, which was at a distance of some eight (8) hours by car, they persisted in their demands. And at your husband’s (inaudible), he received a phone call from a local police inspector demanding that you report to the police station on the grounds of a report that was made about your sexual orientation. And you described how you were threatened that you would be declared a wanted person unless you reported to the police. And you also described how fearful you were of the harm that would you befall upon you should you ever come in contact with the police given their oppressive practices.

 

[9]       You also spoke about the harm that you feared would befall your children, the minor claimants because they were the children of someone who is known to be bisexual. You detailed your fears of how they would be ostracized and possibly harmed by the family and the community on the basis of their connection to you and therefore, possibly imputed to be bisexual themselves and also subject to cleansing rituals or other dangers at the hands of your traditional community, in your husband’s community. It is for this reason that you testified credibly that you brought them out of the country with you. It is for this reason too that you credibly explained that you did not seek to obtain the permission of your husband before you took them out of Nigeria given his position as an agent of persecution in his own right, As you stated in your affidavit to be found in Exhibit 5, involving your husband in your decision to leave Nigeria with the children, would effectively defeat the purpose of your claim for asylum because this would expose your plan to leave the country to your husband and provide your location to your husband, and therefore, bring you and your children into harm. And I accept all of this is as a credible reason for why you do not have written permission for your children to come with you to Canada.

 

[10]     You also testified credibly that your husband contacted you by telephone and made further threats against you after you left Nigeria. I therefore find that you have established the credibility of your allegation that your agents of persecution were members of your extended family, including your husband, the community as well as agents of the state who are the police. You also gave credible evidence of how as a complicating factor, your husband’s other relationships also likely led you to XXXX XXXX XXXX. And you provided a number of corroborative documents that documented the medical and psychological challenges that you have faced and would likely continue to face as a result and how a return to Nigeria would pose challenges to your ongoing health and personal security. These documents are to be found in Exhibit 6 and 7 and they include detailed letters from professionals at the hassle-free clinic, the Black Coalition for AIDS Prevention and two (2) medical doctors in Canada. You also testified about how shortly you — before you left Nigeria, news of your XXXX XXXX became disclosed within your community, leading to you and your children to become stigmatized and ostracized. I wish to acknowledge the intersectionality of your status as a woman, a bisexual woman, and a person XXXX XXXX and the additional personal challenges that you would likely face as result should you return to Nigeria.

 

[11]     And from a medical standpoint alone, there is objective evidence contained in the latest National Documentation Package that outlines some of the difficulties that a person in your circumstances would likely face. And these are to be found for example, at Items 1.9 and 2.2. By way of corroboration of what occurred in Nigeria, you provided a detailed letter from your sister, A.J., who testified quite credibly was the only family member or even person in Nigeria who you were able to still be in contact with and could be trusted not to harm you or to betray your confidences. Your sister confirmed how you were treated by your husband’s family. And she also described how she feared that you will continue to be threatened by your husband if you come back to Nigeria. She also detailed how your husband has been continuing to “monitor your movement everywhere.” And we will also inform the police and the traditional elders if you come back to Nigeria. This letter which was written last night — last month is to be found at page 4 of Exhibit 6. And I found it to be corroborative of your allegations as well as of the ongoing possibility of persecution that you face in Nigeria.

 

[12]     Taking into account the Chairperson’s Guideline 9, I also found that the corroborative evidence that you provided was sufficient. You also gave credible testimony about your life as a bisexual woman in Canada. By way of corroboration, you provided a letter confirming your participation at the LGBTQ positive Metropolitan Community Church as well as in the Black Coalition for AIDS Prevention and you described credibly your involvement in a support group for women XXXX XXXX XXXX. You provided photos of online meetings that you participated in the Metropolitan Community Church as well. So, letters and photos from these various organizations are to be found in Exhibit 6. Although you did not come to Canada directly, but first went to the United States, I found that you only stayed there for about two (2) weeks, and I do not find that your credibility on the matter of your subjective fear of persecution has been undermined as a result of your short stay in the United States or your failure to claim asylum in the United States.

 

[13]     You testified credibly that it was faster and easier to leave Nigeria on the basis of pre-existing travel visas to the United States that you had obtained for a trip that you planned for yourself and your children prior to your sexual orientation being disclosed and which your husband was not in any event, planning to go with you on because of work commitments. You also described how the information that you obtained about the asylum process in the United States made you fear that you would be unsuccessful and that you could be deported back to Nigeria. All in all, I find that this credible evidence has established your personal profile as a bisexual woman and by extension, your minor claimants — the minor claimants’ profiles as children of a bisexual woman. I therefore find that you have established a subjective fear of persecution on the basis of your membership in a particular social group that is bisexual women and their children.

 

[14]     I am now going to talk about objective evidence and all the citations are to be found in the National Documentation Package for Nigeria, cited in Exhibit 3. And this is the April 29th, 2022, version. The objective country evidence supports your allegations of bisexual people and the family members of bisexual people are at a serious risk of persecution by the state, which criminalizes same sex relationships as well as by society in general, which is not accepting of same sex relationships in Nigeria and considers them to be alien to traditional African culture. This is from Item 6.12, page 25. Because same sex acts are criminalized in Nigeria, pursuant to the Nigerian Federal Criminal Code, anyone having physical relations with a member of the same sex is considered to be acting against the order of nature and is to be committing an unnatural offence and is subject to a 14-year prison term.

 

[15]     The same sex marriage prohibitions act also criminalizes same sex marriages and civil unions as well as gay clubs, gay organizations, meetings of gay people and the support of LGBTQ organizations. For example, anyone who supports or participates in a pro LGBTQ organization is liable to a 10-year prison term. This is from Item 1.4, page 46. As a result of this law, Human Rights Watch has observed that the law has created opportunities for people to engage in homophobic violence without fear of legal consequences contributing significantly to a climate of impunity for crimes against LGBTQ people. This is from Item 1.13, page 123. Nigerian society has also been documented to be generally hostile to LGBTQ persons. According to an international study, societal perceptions of homosexuality are founded on opinions that homosexuality is unnatural, sinful, and an abomination. Additionally, the main religions in Nigeria which are Christianity and Islam have both been documented to be opposed to same sex relations and activities. And this is from Item 1.3, page 124.

 

[16]     According to an International observer, it is not possible to live openly as a sexual minority in any area of Nigeria. Not even in big urban areas like Lagos, Port Harcourt or Abuja. When sexual minorities live in urban areas, they are still required to live in the closet and behave in a clandestine manner. This is Item 6.11, page 38. The family members of LGBTQ people also face stigma and discrimination. Objective observers have noted that family members of sexual minorities including spouses, parents, children and siblings can face ostracism, stigmatization and embarrassment from community members and other extended family members. Family members of sexual minorities can be cut off from their community and can be insulted and assaulted by community members. This is Item 6.11, page 144.

 

[17]     The LGBTQ are also known to be living in fear of community sponsored violence. Vigilante groups have been documented to set up — to be set up within communities to target LGBTQ people and attacks can be perpetrated by spontaneous mobs, particularly, when rumors begin to circulate that a couple was engaged in same sex relations. And this is from Item 6.1, page 2. And ritual cleansing practices are also known to take place in Nigeria and have been documented to involve violent and brutal practices. This is from Item 6.11, pages 28 to 29. Overall, I find that there is an objective basis for your subjective fear of persecution on the grounds of being members of a particular social group. That is bisexual women and their children. Therefore, I find that there is a well-founded fear of persecution.

 

[18]     In light of the country evidence above, I find that adequate state protection would not be available to the claimants, especially, because the state is in many respects, an agent of persecution in its own right, particularly, through the state institution of the police and evidence of the police treatment of LGBTQ people as documented in Item 1.22, in particular, paragraph 4.2. And there is also documented evidence of how a culture of impunity has arisen in Nigeria when it comes to acts of violence against LGBTQ people as well as discriminatory laws. And this is from Item 6.11, page 39. As such, I find that the objective evidence demonstrates that adequate state protection is not available to members of the particular social group that you are part of. The presumption of state protection has therefore been rebutted.

 

[19]     In terms of internal flight alternative, because I find that an agent of persecution is the state by way of sexual minorities being criminalized and because I find that there is evidence to support the fact that the state officially condones social violence against sexual minorities, I find that there is, on a balance of probabilities, no place in Nigeria where you, the claimants, could reside safely. Therefore, there is no viable internal flight alternative throughout Nigeria for you, the claimants, in your particular circumstances.

 

[20]     In conclusion, based on the totality of the evidence, I find that you will face a serious possibility of persecution pursuant to section 96 of the IRPA, should you return to Nigeria. Your claims for protection are therefore accepted.

 

——— REASONS CONCLUDED ———