Citation: 2022 RLLR 52
Tribunal: Refugee Protection Division
Date of Decision: October 18, 2022
Panel: Teresa Maziarz
Counsel for the Claimant(s): Samalie Kidde Nsubuga
Country: Nigeria
RPD Number: TC2-08511
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A
DECISION
[1] MEMBER: We are recording again for file number TC2-08511 on October 18th, 2022, at 10:48 in the morning.
[2] The Panel has indicated that it is ready to proceed to a decision on this claim, and the decision is as follows.
[3] The claimant, XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX, a citizen of Nigeria, claims refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act. The claimant is found by the Panel to be a Convention refugee pursuant to section 96 of this Act. Therefore, an analysis respecting section 97(1) is not provided.
[4] In making this determination and throughout the proceedings, the Panel considered and applied the Chairperson’s Guideline 9, Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics, revised on December 17, 2021.
[5] The basis of the claim relates to, according to the written and oral testimonies, the claimant’s sexual orientation. The claimant identifies as a gay man, which for him means that he is sexually, physically, and emotionally attracted to men, not to women. Based on his sexual orientation, the claimant fears persecution in Nigeria from the community at large as well as authorities in Nigeria, who would not be there to assist him and provide him with protection.
[6] The Panel turns to the various elements of the definition of a Convention refugee to discuss how they are met.
[7] There is firstly the element of the claimant’s identity. Though not directly referenced in section 96, it is the core element of finding the claimant to be a Convention refugee. As noted, the claimant is XXXX XXXX XXXX XXXX he is an 18-year-old male born on XXXX XXXX, 2004, in Nigeria. The claimant’s personal identity is established on a balance of probabilities by his testimony and the supporting documents submitted into evidence, as well as testimony from his brother, XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. And in regard to the documentary evidence, the Panel refers to a copy of his passport as found in Exhibits 1 and 4.
[8] The claimant also testified that he is a citizen only of Nigeria and does not have permanent residence in any other country.
[9] The definition of a Convention refugee requires that a forward-looking threshold of risk be met, and that risk threshold is met. The Panel finds that the claimant, were he to return to Nigeria, faces a reasonable chance of persecution based on his sexual orientation. The Panel makes that finding because the claimant has credibly established the basis of his claim on a balance of probabilities. The Panel finds on a balance of probabilities that the claimant’s account that he is a gay man is credible and trustworthy. As noted, the claimant is a young man, 18 years old. The Panel finds from the quality of his written and oral testimonies that this quality reflects, on a balance of probabilities, genuine information concerning his sexual orientation and his path to realizing that he is gay. The Panel accepts on a balance of probabilities the credibility of the account of his experiences in Nigeria as a gay man, and the Panel also observed how fluid the claimant’s oral testimony was. In answer to questions posed by the Panel, the claimant would, for example, volunteer other aspects of his account that relate directly to the questions posed and which are documented in the written account, namely the narrative account that is found in the basis of the claim. For example, the claimant volunteered testimony about the identity of the — one (1) of the aggressors in Nigeria and the aggressor’s friends, all of whom are noted in the narrative account.
[10] The claimant’s testimony about his relationships in Nigeria were also consistent with his written account, that being that he was in only one (1) relationship in or about 2019 that lasted for XXXX (XXXX) months with a man whose name he fully gave, who I will refer to as XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX, and I note that that name is also given in the narrative account. And the claimant readily identified other persons who are named in his account and who provided supporting letters, as found in Exhibits 5 and 6, identifying them as only his friends, but who are also gay, as supported in information provided by the authors of those letters. Those are just some examples of the evidence that the claimant volunteered orally today, without hesitation, without memorization, that confirms what is in his narrative account.
[11] The claimant’s account of his sexual orientation is, as noted, also supported by his personal disclosures found in Exhibit 5 and 6. Such disclosures include letters of support, not only from persons named in his account who continue to reside in Nigeria, but also from his two (2) brothers in Canada who are XXXX and also XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.
[12] The Panel did not discern any material credibility concerns regarding the trustworthiness of such disclosures that would the rebut the presumption of truth of the claimant’s account of his sexual orientation. The Panel considered, for example, that some disclosures are titled as affidavits whereas they clearly are not affidavits, however, what is determinative is the content of such disclosure. Among such disclosure is the report of the social worker in Exhibit 5, which also attests to the claimant’s sexual orientation, and a medical report from Nigeria, which attests to one (1) of the incidences that was described in the narrative account and again, with which the Panel finds no cause for concern in terms of its trustworthiness.
[13] The claimant’s brother XXXX, who was formerly his designated representative before the Board, also testified on the claimant’s behalf today, and his account was consistent with the claimant’s oral testimony and his written testimony, as found in the Basis of Claim form. As also noted, the claimant’s brother XXXX provided a letter of support, and he would likely corroborate the claimant’s account, were he also called to testify, given the content of his letter of support.
[14] There is also no contradictory information about the claimant in his application for a study permit, as found in Exhibit 4, when considered with the information in his Basis of Claim form and in the schedules that are found in Exhibit 1.
[15] The claimant’s account in his Basis of Claim form as to his path of realizing his sexual orientation is therefore also corroborated by the information that is consistent in regard to his educational history, as this is where his path was realized.
[16] Given the credibility of the claimant’s Basis of Claim, there is a link established with a Convention ground, specifically his membership in a particular social group as a gay man.
[17] The meeting of the threshold of a serious possibility or reasonable chance of persecution is also grounded in the objective documentary evidence in addition to the claimant’s personal experiences in Nigeria. Those personal experiences include his having been bullied, harassed, threatened, and beaten by other students at school and by members of the community who perceived him to be gay.
[18] With regards to the objective documentary evidence, the Panel refers to the June 30, 2022, version of a National Documentation Package for Nigeria, which is Exhibit 3. Because the claimant’s Basis of Claim is credible, he has established a credible link to the information in the NDP about the treatment of SOGIESC, S-O-G-I-E-S-C, individuals. In this regard, the Panel refers briefly to the following information. Same-sex relationships and acts are criminalized in Nigeria pursuant to the Nigerian Federal Criminal Code such that anyone having physical relationships with members of the same sex is considered to be acting against the order of the — of nature and to be committing an unnatural offence and is subject to a 14-year prison term. There is also the Same-Sex Marriage (Prohibition) Act, which criminalizes same-sex marriages and civil unions as well as gay clubs and gay organizations, meetings of gay people, and the support of LGBTQ organizations. And in this regard, the Panel refers to Item 1.4 of the NDP, which also notes that, as an example, anyone who supports or participates in a pro-LGBTQ organization is liable to a 10-year prison term. Item 6.12, as another example, references that gay people have been noted by objective observers to be at a serious risk of persecution by the state, which criminalizes same-sex relationships. They are also at risk of persecution by society in general, which is known to be not supportive of same-sex relationships and often considers them alien to traditional African culture. Item 6.7 continues with this theme that the perception of the community at large regarding SOGIESC individuals is founded upon assumptions and opinions that same-sex relationships are unnatural, sinful, and an abomination. Item 6.1 references that SOGIESC individuals are victims of community-sponsored violence.
[19] According to 6.12, SOGIESC individuals conceal their sexuality and face significant pressure to marry individuals of the opposite sex. Item 6.11 references that it is not possible to live openly as a sexual minority in any area of Nigeria, not even in the big urban areas such as Lagos, Port Harcours (sic) — sorry, Port Harcourt, or Abuja. So, all of such evidence, including the claimant’s own personal credible account, shows that the claimant would face a reasonable chance of persecution in Nigeria for a Convention ground, were he to return to that country.
[20] All such evidence also shows that adequate state protection would not likely be forthcoming to the claimant given that one (1) of the agents of persecution is also the state, in regard to its laws and in regard to its approach to providing protection. In this regard, in addition to the evidence already cited, Item 6.11 indicates that there is little state protection from community violence, that the roles of discriminatory laws are evident in the forms of violence perpetrated by both state and non-state actors, and that impunity is one (1) of the driving forces for the continual violation of LGBTQ people’s rights in Nigeria.
[21] Given the evidence that supports the finding of the likelihood that the claimant would not receive adequate state protection in Nigeria and given that the state, through also its security forces, is an agent of persecution in his claim, there is also no viable internal flight alternative for the claimant in Nigeria. The viability of an IFA fails on the first prong of the IFA test established by the Federal Court of Appeal, as the claimant faces a reasonable chance of persecution in every part of Nigeria due to his sexual orientation.
[22] The Panel also returns to the issue of credibility and wishes to add that another document that comes to mind that was disclosed by the claimant are documents from XXXX XXXX, which show that he is associated with this organization. The Panel will also address the claimant’s testimony in answer to the Panel’s questions that he is not currently in a relationship in Canada since his arrival here. The Panel finds that this does not undermine the credibility of the claimant’s account, The Panel references the claimant’s tender age, despite that he is an adult, and his explanation, which is reasonable on a balance of probabilities that he simply has not yet met someone with whom he could consider a relationship. The claimant also emphasized that he has never been in a relationship with a woman, not here in Canada and not in Nigeria, and that he continues to identify as a gay man. And, as noted, the Panel has already discussed what the claimant has said as to what that personally means to him.
[23] So, in conclusion, the Panel finds that the claimant is a Convention refugee pursuant to section 96 of the Immigration and Refugee Protection Act, and that the claim is allowed.
——— REASONS CONCLUDED ———