Citation: 2022 RLLR 57
Tribunal: Refugee Protection Division
Date of Decision: December 16, 2022
Panel: Ha Lu
Counsel for the Claimant(s): Naga S. Obazee
Country: Nigeria
RPD Number: TC2-24356
Associated RPD Number(s): N/A
ATIP Number: A-2022-01960
ATIP Pages: N/A
DECISION
[1] MEMBER: I have considered your testimony and the other evidence in the case before me, and I am now ready to render my decision orally.
[2] The claimant XXXX XXXX XXXX, claims to be a citizen of Nigeria, and seeks refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act.
[3] I have considered guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board, and Guideline 9: Proceedings before the Immigration and Refugee Board involving sexual orientation, gender identity and expression and sex characteristics, and have applied them within this decision. The names of all third parties have been reduced to their initials for privacy and safety reasons.
[4] I find that you are a Convention refugee as you have established on a balance of probabilities, that you meet the definition of a Convention refugee pursuant to section 96 of the Immigration and Refugee Protection Act, that is persecution based on membership in a particular social group bisexual woman.
[5] The allegations for your claim are outlines in the narrative to your Basis of Claim form at Exhibit 2.
[6] In summary, that as a bisexual woman you face legal implications and sanctions as well as harm from people in your state, such as the police and your community should you return to Nigeria.
[7] You allege that you discovered same sex attraction when you were in secondary school and began an intimate relationship with a female classmate BA (ph). When she was caught with another female classmate, there were rumours about you and BA that prompted you to have a boyfriend to cover up your sexual identity. You testified that your next same-sex relationship was with a woman named OB, which lasted less than a year until you both graduated from university.
[8] You allege that you met your last girlfriend BM, at second-year university through mutual friends. You both went to a club that was tolerant of SOGIESC individuals but unfortunately it was raided by the police. While you managed to escape the police raid, you were later arrested for your sexual orientation.
[9] You allege being insulted and harassed by your community which impacted your business and led you to leave Nigeria. You allege that the cultural hatred of homosexual activities and the legislation which punishes individuals engaged there in, is a factor everywhere in Nigeria. In other words, you allege that neither state protection nor an internal flight alternative is available to you in Nigeria.
[10] Your allegations establish a nexus to the Convention ground of a particular social group, specifically bisexual woman. I have therefore analyzed the claim pursuant to section 96 of the Immigration and Refugee Protection Act.
[11] As bisexual is the term you testified that you identify with, this decision will also refer to bisexual throughout the decision in accordance with the SOGIESC Guideline.
[12] You have established on a balance of probabilities, your personal and national identity by a copy of your valid Nigerian passport which were seized by the refereeing immigration office and found in Exhibit 1.
[13] Sworn testimony is presumed to be credible unless there is a valid reason to doubt it. I am cognizant of the difficulties faced by individuals in establishing their claims, including different levels of education, cultural factors and the milieu of the hearing room. Overall, I have found you to be a credible witness.
[14] You are educated and have worked professionally in Nigeria as an XXXX XXXX for over 10 years. Throughout your testimony you have demonstrated a willingness to ask for clarification when you did not fully understand a question. In light of your overall profile, and your ability to communicate effectively, I reasonably expected you to speak with insight and detail about your aspects of your life related to your sexual orientation. As a result, I inquired extensively about how your understanding of your sexual orientation evolved, how that awareness has impacted you, and how your sexual orientation led you to seeking safety in Canada. I find that you have credibly established your sexual identity.
[15] You testified about past same-sex relationships and opposite-sex relationships. You were able to answer my questions in a manner which was consistent with what one would expect for relationships of this nature. You described in sufficient details genuine relationships with your ex-girlfriends BA, OB, and BM, and there were no major inconsistencies or omissions with respect to these relationships. You testified of not displaying your affections in public for fear of discovery and arrest, and meeting with your girlfriends at each other home. I therefore find on a balance of probabilities, that you have established that you have engaged in same-sex relationships which supports your profile as a bisexual woman.
[16] You testified that once you came to Canada in XXXX 2022, you spent more time exploring your sexuality and living more freely, and that you are somewhat open with your sexual orientation.
[17] You provided a letter of advocacy from the XXXX, and a reference letter from the XXXX XXXX XXXX of Toronto, found in Exhibit 5.4., that confirms your interest and active participation in various 2SLGBTQ+ activities.
[18] I find these documents credibly establishes your identity and engagement in 2SLGBTQ+ community, and therefore assign them full weight.
[19] I find your testimony and the documentary evidence credibly further establishes on a balance of probabilities, your profile as a bisexual woman. Specifically, how you express your sexual identity openly which contrasts the way you had to hide your sexual identity in Nigeria.
[20] You testified in detail about self-identification and exploration in Nigeria with respect to sexual identity as a bisexual person. Which to you means having an attraction to women and men. You testified about how same-sex activity is against the law in Nigeria and that the community punishes same-sex relationships by reporting to the police or what you call jungle justice.
[21] You described feeling scared of being discovered, so you dated a man to quash rumours of having same-sex attraction with another classmate. You describe the public corporal punishment of your first girlfriend BA, which amplified your fear of aggression and hostile behaviour towards you as a bisexual woman.
[22 In assessing your overall credibility, I find that your testimony was consistent with someone whose sexual orientation did not conform to societal norms and expectations, and did not comply with national legal requirements. I find that your description of your own strategies for mitigating risks to life and safety, reflected an authentic and lived experience. As well, I find your ability to testify was sincere and the way you spoke was compelling, and answering questions about being publicly outed as bisexual, indicated a significant degree of experience trauma.
[23] Based on this finding and the credibility of your allegations, I also find you have established your subjective fear of persecution. I further find on a balance of probabilities, that you have an objective basis for your fear of returning to Nigeria because of the documented country conditions.
[24] The National Documentation Package for Nigeria, which is found at Exhibit 3, have several sources that indicate prosecution based on sexual orientation by the government found at Items 2.1, 2.6, 2.8, 2.9, as well as research found at ITEM 6.2, 6.7,6.11 and 6.12. For example, Item 6.12 indicates that a 2014 law effectively renders illegal all forms of actively supporting or promoting lesbian, gay, bisexual, transgender, and intersex LGBTI rights. According to the law, anyone convicted of entering into a same-sex marriage or civil union may be sentenced to up to 14 years imprisonment. The law also criminalizes the public show of same-sex amorous affection. The report also indicates that LGBTI persons reported increase harassment, threats, discrimination, and incidents of violence against them based on their real or perceived sexual orientation or gender identity, and face a range of discriminatory treatment from societal actors because they are perceived to be different. They are frequently victims of physical violence, and psychological abuse, extortion and discrimination in different aspects of daily life.
[25] As another example, Item 6.2 states that the harsh laws enforced in Nigeria and its effects on LGBT people had been widely documented. In fact, Nigeria has been cited as one of the most homophobic countries in the world. Not only due to the severity and comprehensiveness of its legislation that criminalizes same-sex relations, but also for the discriminatory and violent treatment given to LGBTI people.
[26] And finally in Item 6.11 sexual minorities may face violence from family members, of society, and state authorities, and can be killed by community members as a result of their sexual orientation and /or gender identity and expression.
[27] To summarize, the National Documentation Package for Nigeria makes multiple references to the maltreatment of both men and women who chose to have same-sex relationships. I am satisfied there is ample evidence of an objective basis for your subjective fear in this case. I find you have demonstrated on a balance of probabilities, that you are a bisexual woman, and that you have experienced persecution in Nigeria because of your sexual orientation.
[28] I therefore find you have demonstrated a subjective fear of persecution in Nigeria that is objectively well-founded.
[29] In assessing state protection, there is a presumption that the State can protect its citizens, except in situations where the State is in complete breakdown. As noted in section 8.6.4 of the SOGIESC Guideline, the existence of laws criminalizing nonconforming sexual orientation, sexual behaviours, gender identities or expressions or sex characteristics and the enforcement of these laws by the State, may be evidence that state protection is inadequate.
[30] As same-sex sexual activity is criminalized in Nigeria and since homophobic violence continues with impunity, I find there is clear and convincing evidence that state protection in Nigeria would not be forthcoming to you as a bisexual woman, should you try to seek it upon return to that country. I find that you have rebutted the presumption of state protection.
[31] I have also considered whether there is a viable internal flight alternative. It is well established in law that an internal flight alternative is not viable if the SOGIESC individual must conceal their SOGIESC in order to live in that location.
[32] Given the State’s capacity, the criminalization of same-sex conduct, and homophobic attitudes that exist country-wide, as outlined in the objective evidence cited earlier, I find there is no safe place for you to live openly as a bisexual woman in Nigeria, and nowhere in Nigeria where you would not face a possibility of persecution based on your membership in this particular social group.
[33] As noted in section 8.7.1 of the SOGIESC Guideline, it is well established in law that an internal flight alternative is not viable if you must conceal your SOGIESC in order to live in that location.
[34] Therefore, I find that there is no viable internal flight alternative available to you anywhere in that country.
[35] In conclusion, on the totality of the evidence, I find that you have a serious possibility of persecution in Nigeria on the grounds of membership of a particular social group as a bisexual woman. I find you to be a Convention refugee, and I accept your claim.
——— REASONS CONCLUDED ———