Citation: 2022 RLLR 35
Tribunal: Refugee Protection Division
Date of Decision: April 28, 2022
Panel: Sandeep Chauhan
Counsel for the Claimant(s): Marianne Lithwick
Country: Nigeria
RPD Number: VC1-04970
Associated RPD Number(s): VC1-04971
ATIP Number: A-2022-01960
ATIP Pages: N/A
REASONS FOR DECISION
INTRODUCTION
[1] These are the reasons for the decision in the claims of XXXX XXXX (the “principal claimant”), and her daughter XXXX XXXX (the “minor claimant”), who are citizens of Nigeria, and are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[i]
[2] XXXX XXXX was appointed as the designated representative of her minor child XXXX XXXX. In rendering my reasons, I have considered and applied the Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution.
ALLEGATIONS
[3] The following is a brief synopsis of the allegations put forth by the principal claimant in her Basis of Claim (BOC) form.[ii] She fears persecution at the hands of women from her in-laws’ village in Nigeria who want to subject the minor claimant to female genital mutilation (FGM).
[4] The claimant is a 33-year-old female from Benin City who met her husband, XXXX, in 2014. They got married on XXXX XXXX, 2016. The minor claimant was born on XXXX XXXX, 2016 in Benin City. A week after the minor claimant’s birth, women from XXXX’s village came to see the minor claimant and informed the principal claimant that as per the clan’s tradition, the minor claimant will have to undergo FGM before she turns 5 years old. The principal claimant informed the women that she will not subject her child to the procedure. Over the following years, the women continued to call the principal claimant to tell her that the minor claimant will have to undergo FGM.
[5] The claimants moved to Lagos in XXXX 2017 due to XXXX’s employment opportunity in that city. The principal claimant gave up her catering business in Benin City and opened up a salon. The claimants travelled to the United Kingdom (UK) in XXXX 2020 when they found out that the principal claimant was pregnant with another baby girl. The principal claimant and the minor claimant travelled to Canada on XXXX XXXX, 2020 after hearing a person in a mall in the UK talk about the refugee protection system in Canada. The claimants filed for refugee protection and fear returning to Nigeria due to the threat of FGM for the minor claimant.
DETERMINATION
[6] I find that the claimants have satisfied the burden of establishing more than a mere possibility of persecution on a Convention ground for the following reasons.
ANALYSIS
Identity
[7] I find that the claimants’ identities as nationals of Nigeria are established, on a balance of probabilities, based on certified copies of their Nigerian passports on file.[iii]
Nexus
[8] For a claimant to be considered a Convention refugee, the well-founded fear of persecution must be by reason of one or more of the five grounds: race, religion, nationality, membership in a particular social group or political opinion.
[9] In this case, the evidence before me is that the principal claimant fears persecution in Nigeria due to her refusal to subject her daughters to FGM. I find that she has established nexus to a Convention ground – membership in a particular social group: namely a female fearing gender-based persecution. The evidence before me also is that the minor female claimant faces persecution in Nigeria due to the threat of forcibly subjecting her to FGM. I find that she has established nexus to a Convention ground – membership in a particular social group: namely a female child fearing gender-based persecution.
[4] Accordingly, I have assessed their claims under section 96 of IRPA and not under section 97.
Credibility
[10] When a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness. (Maldonado [1980] 2.F.C. 302 (C.A.)) In this case the principal claimant did not offer a reasonable explanation as to why she did not claim refugee protection in the UK. She was not forthcoming about her marital status initially during the hearing. Initially, the principal claimant stated that she has not spoken with XXXX for quite some time. Then upon being questioned further on the issue, she stated that she spoke with her husband last week. In spite of these credibility concerns, I accept, on a balance of probabilities that the principal claimant left Nigeria along with the minor claimant and XXXX as she feared forcible FGM on her daughter, that she is now separated from her husband, that her in-laws also support female circumcision, and that she and her daughter have subjective fears of returning to their country. The principal claimant has also provided corroborating documentary evidence[iv] to support her and her daughter’s claims. I have no reason to doubt the genuineness of these documents and accept them as genuine.
Well-Founded Fear of Persecution and Risk of Harm
[11] To establish their status as Convention refugees, the principal claimant and the minor female claimant had to show that there was more than a mere possibility that they would be persecuted if removed to Nigeria. I find that the evidence presented in support of their allegations does establish more than a mere possibility of persecution for them. My reasons are as follows.
[12] The principal claimant was told by her mother-in-law and the community elders, that she has to abide by the family and community directive of honoring the age-old tradition of subjecting the minor claimant to FGM. This fear increased for the principal claimant when she found out that she was pregnant with another girl, at which time she escaped to the UK. She now fears going back to Nigeria with her daughter, especially since she is separated from her husband, and she is a single mother. I find that the claimants’ subjective fears are supported by objective evidence.
[13] The country condition documents for Nigeria corroborate the facts alleged by the associate claimant and the objective basis for her and her daughter’s claims. FGM is widespread in Nigeria and the procedure has been performed on 20 million women and girls in the country.[v]
[14] Although Nigeria has passed legislation to criminalize the FGM as well as the procurement, arrangement, and/or assistance of acts of FGM, the prevalence of this social evil remains concerning and there are no reported instances of any prosecutions brought under federal legislation since its introduction in 2015 in Nigeria.[vi]
[15] The United Kingdom Home Office report notes that:
The 2019 UNICEF country profile report also noted that in Nigeria the prevalence of FGM varied significantly by state, and that almost eight out of ten adolescent girls who experienced the practice were cut before the age of five. Over half of girls and women and boys and men think FGM should stop and there is evidence of significant generational change in the prevalence of FGM in Nigeria as women aged 45-49 are more than twice as likely to have been cut than girls aged 15-19.[vii]
[16] The objective evidence discussed above establishes that FGM is prevalent in Nigeria, in spite of the legislation banning this practice. There appears to be lack of political will to implement the law as there have been no reported instances of prosecutions brought under federal legislation in Nigeria since 2015, when the legislation took effect. Therefore, based on all the evidence before me, I find that the principal claimant and the minor female claimant will face more than a mere possibility of persecution if forced to return to Nigeria, especially since XXXX’s family members are still adamant on having the minor claimant circumcised and are motivated to force the minor female claimant into undergoing female circumcision. I find that their fears are indeed well-founded.
State Protection
[17] I find that adequate state protection would not be reasonably forthcoming in this particular case.
[18] States are presumed to be capable of protecting their citizens, except in situations where the country is in a state of complete breakdown. The responsibility to provide international (or surrogate) protection only becomes engaged when national or state protection is unavailable to the claimant. To rebut the presumption of state protection, a claimant must provide “clear and convincing” evidence of the state’s inability to protect its citizens. A claimant is required to approach the state for protection if protection might reasonably be forthcoming. However, a claimant is not required to risk their life seeking ineffective protection of a state, merely to demonstrate that ineffectiveness (Ward [1993] 2 S.C.R. 689).
[19] The principal claimant testified that she will not be able to seek police protection in Nigeria because the issue of FGM is considered private, in which the police do not intervene. She testified that’s she tried to seek their help on three different occasions and was told that this is a private family tradition matter, in which they will not intervene.
[20] Objective evidence states that authorities often do not take complaints about FGM seriously. There are no reported instances of any prosecutions brought under federal anti-FGM legislation since its introduction in 2015. A recent study conducted by UNFPA and UNICEF does not list any arrests, cases, or convictions for FGM in Nigeria.[viii]
[21] Objective evidence also states that there are reports which indicate that it remains extremely difficult for women and girls to obtain protection from FGM due to community support for these practices, the attitude of police, and treatment by the police of FGM as a community or family matter.[ix]
[22] Finally, I quote the United Kingdom Home Office report, which indicates that the police may be discriminatory in their treatment of victims of ritual practices, including FGM, and that women often do not report such practices to the police due to a lack of trust. Police themselves can be part of the culture and thus fail to treat such practices as criminal.[x]
[23] The objective evidence discussed above establishes that FGM is considered a private matter in Nigeria. It is a prevalent practice in the country, thereby influencing the response of the police as not taking such acts seriously and thereby failing to provide protection to victims or potential victims of FGM and gender-based violence. Therefore, based on the objective evidence discussed above, I find that the claimants will not be able to access adequate state protection in Nigeria and that the presumption of state protection has been rebutted in this case.
Internal Flight Alternative
[24] The final issue is whether the claimants have a viable internal flight alternative (IFA) in Nigeria. In order to determine whether an IFA exists, I must assess whether there is any location in Nigeria in which they would not face a serious possibility of persecution and whether it would be reasonable to expect them to move there.[xi] I proposed Lagos and Abuja as potential IFA locations during the hearing. The principal claimant argued that being a single mother, it will be nearly impossible for her to relocate to either of these two cities or anywhere in Nigeria as no one is willing to rent premises to the single mothers. She stated that she may be able to find employment due to her work experience but there are several other factors that will render it unreasonable for her and her daughters to go back to Nigeria. The principal claimant stated that earlier her marriage was intact, and she had the support of her husband. Now, she feels alone and will have to fend for herself and her daughters on her own. I agree with the principal claimant’s arguments.
[25] On the issue of the ability of single women, who head their own households, to relocate within Nigeria, objective evidence states that:
In a report published in 2019, the UK Home Office indicates that relocation may present greater challenges for single women who do not have access to a support network (UK Mar. 2019, para. 2.2.5). In correspondence with the Research Directorate, a doctoral candidate and research fellow [1] at Murdoch University, Australia, stated that without support, surviving in “any place” of Nigeria, including in the cities of Lagos, Ibadan, Port Harcourt and Abuja, is very difficult for women heads of households (Doctoral Candidate 4 Nov. 2019). The same source explained that it would be very difficult for such women [widows, divorced or separated women, abandoned women, married women with a non-resident (polygynous or migrant) husband, single women or single mothers] to settle down successfully if they relocate to any place in Nigeria because of the risks and vulnerabilities that they may be exposed to, [such as] stigmatisation/labelling, insecurity, economic hardship, family problems and trauma, among others. (Doctoral Candidate 4 Nov. 2019) The EASO states that “single able-bodied women” who attempt to relocate “may encounter additional difficulties in relation to education, work, housing, etc.” (EU Feb. 2019, 31).[xii]
[26] Single women need male support to access housing in Nigeria and encounter discrimination in securing employment opportunities. ‘According to the doctoral candidate, accessing employment or vocational training in Abuja, Lagos, Ibadan or Port Harcourt is “very difficult” for women heads of households (Doctoral Candidate 4 Nov. 2019).’[xiii]
[27] Objective evidence discussed above corroborates the principal claimant’s argument that it will be unreasonable in all circumstances, including those particular to her and the minor claimant, for them to seek refuge anywhere in Nigeria, including the proposed IFAs of Lagos and Abuja. Therefore, I am satisfied that there is no viable IFA for the claimants in Nigeria.
CONCLUSION
[28] Based on the analysis above, I find that the claimants are Convention refugee under section 96 of IRPA. Accordingly, I accept each of their claims.
(signed) Sandeep Chauhan
April 28, 2022
[i] Immigration and Refugee Protection Act,S.C. 2001, c. 27.
[ii] Exhibit 2.
[iii] Exhibit 1.
[iv] Exhibit 4, 5.
[v] Exhibit 3, National Documentation Package, Nigeria, 30 November 2021, tab 1.4: EASO Country of Origin Information Report: Nigeria. Country Focus. European Union. European Asylum Support Office. June 2017. / tab 5.2: Nigeria: The Law and FGM. 28 Too Many. June 2018.
[vi] Exhibit 3, National Documentation Package, Nigeria, 30 November 2021, tab 5.2: Nigeria: The Law and FGM. 28 Too Many. June 2018.
[vii] Exhibit 3, National Documentation Package, Nigeria, 30 November 2021, tab 5.16: Country Policy and Information Note. Nigeria: Female Genital Mutilation (FGM). Version 2.0. United Kingdom. Home Office. August 2019.
[viii] Exhibit 3 National Documentation Package, Nigeria, 30 November 2021, tab 5.2: Nigeria: The Law and FGM. 28 Too Many. June 2018.
[ix] Exhibit 3, National Documentation Package, Nigeria, 30 November 2021, tab 5.12: Whether parents can refuse female genital mutilation (FGM) of their daughter; state protection available (2016-October 2018). Immigration and Refugee Board of Canada. 29 October 2018. NGA106183.FE. NDP, tab 5.16: Country Policy and Information Note. Nigeria: Female Genital Mutilation (FGM). Version 2.0. United Kingdom. Home Office. August 2019.
[x] Exhibit 3, National Documentation Package, Nigeria, 30 November 2021, tab 5.16: Country Policy and Information Note. Nigeria: Female Genital Mutilation (FGM). Version 2.0. United Kingdom. Home Office. August 2019.
[xi] Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.).
[xii] Exhibit 3, National Documentation Package, Nigeria, 30 November 2021, tab 5.9: Whether women who head their own household, without male or family support, can obtain housing and employment in Abuja, Lagos, Ibadan, and Port Harcourt; government support services available to female-headed households (2017-November 2019). Immigration and Refugee Board of Canada. 20 November 2019. NGA106362.E.
[xiii] Ibid.