2022 RLLR 115
Citation: 2022 RLLR 115
Tribunal: Refugee Protection Division
Date of Decision: June 21, 2022
Panel: Dawn Kershaw
Counsel for the Claimant(s): Seyfi Sun
Country: Nigeria
RPD Number: TB9-25934
Associated RPD Number(s): TB9-25988, TB9-26018
ATIP Number: A-2023-01023
ATIP Pages: N/A
DECISION
[1] MEMBER: So, this decision is being rendered after the hearing and in the absence of the parties by dictation using Microsoft Teams on June 21st, 2022. This transcript may be edited before being signed and sent to the parties.
[2] At the conclusion of the hearing, I told you that I was accepting your claims. By that, I mean, I am accepting the claims for refugee status of the principal claimant, XXXX XXXX XXXX, in file number 2 — sorry, TB9-25934, the associate claimant, XXXX XXXX XXXX, in file number TB9-25988 and the minor claimant, XXXX XXXX XXXX, in file number TB9-26018. I note that this was a new hearing ordered by the Refugee Appeal Division in its decision dated October 21st, 2021, from the original Refugee Protection Division, decision dated March 10, 2021. These claims were heard jointly. Ms. XXXX was appointed as the designated representative for the minor claimant.
[3] I considered your testimony and examined the evidence before me, and I am reading my decision orally. You three (3) claimants claim to be citizens of Nigeria and claim refugee protection pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act. I find that you three (3) claimants are Convention refugees for the following reasons.
[4] Your allegations are found in your Basis of Claim forms in Exhibits 2.1, 2.2 and 2.3. The details were elaborated upon in your testimony. In summary, you, the principal claimant, primarily fear persecution in Nigeria as a bisexual woman. In the case of the associate claimant and the minor claimant, you fear you will be persecuted as family members of a bisexual woman. You also fear harm at the hands of the police and or the community because of the principal claimant’s relationship with another woman when in Nigeria. I have based my decision on your identity Ms. XXXX, as a bisexual woman and the familial relationship to you of both the associate claimant and the minor claimant. In holding this hearing and making my decisions, I have carefully considered and applied Chairperson Guidelines four (4), women refugee claimants fearing gender-related persecution, as well as guideline nine (9) regarding sexual orientation and gender identity expression.
[5] With respect to your identities, I find that all three (3) of your personal identities and your identities as nationals of Nigeria are established on a balance of probabilities, both by your testimony and by the supporting documents in Exhibit 1. Both the principal claimant and associate claimant testified that the passports in Exhibit 1 were the ones used to come to Canada.
[6] I find there is a link between what, you, the principal claimant fears and a Convention ground, specifically, a particular social group, namely being a woman who is a bisexual. And in the case of the associate claimant and the minor claimant, the particular social group of being family members of a bisexual woman. I accept on a balance of probabilities that you, Ms. XXXX, are a bisexual and that the associate claimant and minor claimant are your family members. I analyzed your claims pursuant to section 96 of the Immigration and Refugee Protection Act.
[7] In terms of your general credibility, I found you, the principal claimant and associate claimant to be credible witnesses. You both testified in a straightforward manner and without embellishment. I found you both to be very forthright and forthcoming. You did not exaggerate your testimony, and you readily answered all my questions and added details when I asked about certain areas. There were no inconsistencies in your testimony that went to the heart of your claims.
[8] There was a question in the first hearing about the arrest warrant that was disclosed in Exhibit 4 and adverse credibility findings were based on the authenticity or lack of authenticity of that document. I have not made any determination about the authenticity of this document as I have decided this claim based on the sexual orientation of the principal claimant, and whether or not there is an arrest warrant out for the claimants is not the crux of this case in my view. As such, I did not draw any adverse credibility inference from this arrest warrant.
[9] I did ask you both about your status in the United States and why you had not made claims there. In the case of you, Ms. XXXX, you told me that because you were outside Nigeria, you thought you could raise the issue of your sexual orientation with people in the Nigerian community where you lived in the United States. But you quickly realized by their reaction that their beliefs about sexuality, that includes an attraction to someone of the same sex, was not accepted. As such you became isolated within your community in the United States as well. And in fact had to move once because of that. As such you were not able to get any assistance from the Nigerian community in the United States. In addition, you testified that you did not have any money to pay an immigration lawyer in the United States. You also testified and I find that you never intended to stay outside the United States for more than a month or two (2) until things settled. You also had a baby in the United States in November 2017, which you felt gave you the status of someone who would not be harassed. I accept your explanations for why you did not make a claim in the United States. And I draw no adverse credibility inference from your failure to do so.
[10] In respect of you, Mr. XXXX, you testified that after Mr. XXXX — sorry, Ms. XXXX, left you in the United States, you were not yourself and could not sleep. You began to drink which you had never done in your life. You made some decisions that were affected by that, including entering into another relationship with an American woman who you married. You testified and I find that that relationship was difficult for you as you had hoped that you would reconcile with Ms. XXXX and also because your new wife was American and you were not, and that caused some difficulties in the relationship. You told me that your American wife filed an application to sponsor you for US immigration, but you left the US prior to that being decided because you reconciled with Ms. XXXX. I accept what you say about why you did not finish obtaining your status in the United States and do not draw negative credibility inference based on what you told me about the American marital relationship along with what you told me about how you feel about Ms. XXXX. And the progression of your relationship from being together to being apart to being back together again and the reasons for that.
[11] The central issue of your claim is your sexual orientation, Ms. XXXX. You testified that you established a relationship with a young woman while in secondary school. You carried on that relationship discreetly, testifying it was easier to hide because you were both female and no one suspected that you would be in a relationship. You told me about how the relationship started, who initiated the first contact and how you kept the relationship going, until you had to go your separate ways when you finished high school. You also told me about your second same-sex relationship that occurred when you were already married to Mr. XXXX. You told me how that began and how for you, it was supposed to be something to occupy your time because you were apart from your husband and were lonely, as was she. However, you told me about how that progressed and how you tried to remove yourself from that relationship when she became possessive of you because she threatened to expose your relationship. This also is the reason you ended up telling Mr. XXXX about your sexual orientation.
[12] I asked you about your current relationship with the associate claimant, Mr. XXXX. You told me how you met and explained that because you were attracted to both men and women and because you were at an age when it became time for you to be married, and have children, you got into the relationship with Mr. XXXX. You told me how it felt to realize you were attracted to both men and women, including that for a time you thought there was something medically wrong with you. It was not until you were able to read about same-sex relationships and bisexuality, that you realized that there was nothing wrong with you. And that this is just who you are. However, the path was not as easy as that because you told me that you were faced with having learned in society and in your Muslim religion, that having an attraction to someone of the same sex was taboo. You also told me that that now that you have children, your preference would be to have a same-sex relationship. But you and Mr. XXXX have decided together to remain committed to each other, both because of the children and because you love each other. It was clear from your testimony that the path has not been easy for you two (2). It was clear that it has been difficult for you, Ms. XXXX, to have had to give up your own XXXX XXXX XXXX and you, Mr. XXXX, to give up your job in Nigeria, that you still had when you came to the United States because you thought you were going to return to Nigeria. It was also clear that it has not been easy for you, Ms. XXXX, to have lost contact all your family, including your mother to whom you used to be close and your sister who to some extent supported you, even after your sexual orientation was discovered. In Mr. XXXX case, it was clear it is difficult for him to be away from his mother who remains in Nigeria and for whom he is really the main support.
[13] I believe your testimony about how you both have had to come to terms with Ms. XXXX sexuality. Your testimony, Mr. XXXX was very frank and how you felt when she first told you and the negative impact it had on your relationship. You testified that in your mind there was no such thing as bisexuality and your questioned how she could be with you. However, you testified that Ms. XXXX has educated you and reassured you that she is attracted to both men and women and you testified that you are certain that she is now committed to your relationship. You both testified about how you have decided to move ahead in the relationship because you have a family and your children are the most important thing to you.
[14] I also asked you, Ms. XXXX, generally about your sexual orientation and how you felt about it. You testified that once you know it was not a medical problem and that it is just nature, you were able to accept it, even though you were never able to be open about it in Nigeria. I believe that you, Ms. XXXX, are bisexual based on all of the testimony. This is despite you not having been involved in any activities in Canada related to the LGBTQ+ community. I asked you about that and you told me that even though you are now in a community where your sexual orientation is accepted, and you would love to learn and know more, you are putting your partner first by not becoming involved in the community. You testified that instead you read and watch programs on your own about the LGBTQ community because as you put it, ‘it is you who is not straight, not him.’ Having heard Mr. XXXX testimony, I find that this is a loving choice by you Ms. XXXX because despite Mr. XXXX accepting you for who you are and putting the family first as he testified, it is not easy to put behind him all of the bad things he learned about the LGBTQ Community in Nigeria.
[15] All of the evidence supports that you, Ms. XXXX, are bisexual and I accept that you are. You further testified that because of your bisexuality, you and your family will be persecuted if you return to Nigeria. You testified credibly about the risk you all would face at the hands of the police or the community given that your sexual orientation is known. In addition, you would not be able to live openly as a bisexual in Nigeria. You also testified that your husband, the associate claimant and your children would be and ostracized and stigmatized because people know you are bisexual. I find on a balance of probabilities that you, Ms. XXXX, are a bisexual and that the associate claimant, Mr. XXXX, and the minor claimant, are the partner and son of you as a bisexual and that you three (3) have a subjective fear of returning to Nigeria.
[16] I further find that there is an objective basis for your subjective fear. The overall objective evidence supports your claim for Convention refugee protection based on your membership in a particular social group, namely your sexual orientation as a bisexual. The National Documentation Package for Nigeria, April 29, 2022, version in Exhibit 3 and Items 6.16, 6.2 and 2.1 states that same-sex relationships are criminalized specifically as set out in the same-sex marriage prohibition act enacted in January 2014. Which effectively renders illegal, all forms of activity supporting or promoting LGBT rights. Item 6.1 goes on to say that LGBTQ persons have suffered violence from many angles of society, mostly from vigilante groups and mob justice. It further states that the violence is omnipresent. It is reported in item 6.2 that Nigeria is one (1) of the most homophobic countries in the world.
[17] I also find that the associate claimant’s and the minor claimant’s subjective fear is supported by the objective evidence in the NDP. Item 6.11 states that family members of sexual minorities, including children, face ostracism, stigmatization and embarrassment from the community members and other extended family members. In addition, family members of sexual minorities can be cut off from their community and they can be insulted and assaulted by community members. Overall the objective country condition evidence supports the conclusion that the subjective fear you three (3) have has an objective basis. As such, I find that you have a well-founded fear of persecution.
[18] Because same-sex relationships are criminalized, I find it would be objectively unreasonable for you to seek the protection of the authorities in Nigeria. Adequate state protection would not be available to you as you fear the state.
[19] With regard to possible viable internal flight alternatives in Nigeria, given the federal laws of Nigeria, criminalizing same sex relationships that are applicable throughout Nigeria, I find there is a serious possibility of persecution for all of you throughout Nigeria. And no viable internal flight alternative exists for you in Nigeria.
[20] Having considered all of the evidence I find there is a serious possibility that you three (3) claimants would face persecution in Nigeria pursuant to section 96 of the Immigration and Refugee Protection Act. And I find that you are Convention refugees based on your membership in a particular social group and I therefore accept your claims.
[21] In summary, based on the totality of the evidence before me, I find that you are Convention refugees pursuant to section 96 of the IRPA, and I accept your claims.
[22] End of recording. Thank you.
——— REASONS CONCLUDED ———