2022 RLLR 91
Citation: 2022 RLLR 91
Tribunal: Refugee Protection Division
Date of Decision: March 9, 2022
Panel: Sarah Gebrenegus
Counsel for the Claimant(s): Ayoola Samuel Odeyemi
Country: Nigeria
RPD Number: TC1-04007
Associated RPD Number(s): N/A
ATIP Number: A-2023-01023
ATIP Pages: N/A
DECISION
[1] MEMBER: This is the decision for XXXX XXXX XXXX, file number TC1-04007. I have considered your testimony and the other evidence in the case and as I said I am ready to render my decision orally. I have also considered and applied Guideline 9 relating to gender expression and sexual orientation. You claim to be a citizen of Nigeria and are claiming refugee protection pursuant to Sections 96 and 97 of the Immigration and Refugee Protection Act. As I have already stated I find that you are a Convention refugee and for these following reasons.
[2] Your allegations can be found in your Basis of Claim form found in Exhibit 2. You allege the following. You are a citizen of Nigeria and fear persecution at the hands of Nigerian authorities, family members, community, and society due to your sexual orientation as a bisexual woman. You further allege that there is no state protection for you or an Internal Flight Alternative anywhere in Nigeria.
[3] In regards to your identity, your personal identity as a citizen of Nigeria has been established by your testimony and the supporting documents filed in Exhibit 1, and this is specifically your valid Nigerian passport. I find therefore that on a balance of probabilities that identity and country of reference have been established.
[4] I do also find that there is a link between what you fear and one of the five Convention grounds because of your membership in a particular social group as a bisexual woman.
[5] Next I will turn to the issue of credibility. I find you to be a credible witness and believe what you have alleged in support of your claim. When a claimant affirms to tell the truth, this creates a presumption of truthfulness unless there is evidence to the contrary. You have been consistent with your narrative as submitted in your Basis of Claim, and credible in your allegations and evidence. You provided corroborative evidence in the form of letters from your neighbour, sister, as well as photographs of you and your former spouse. I find that this corroborative evidence submitted was credible and trustworthy and I assign it full weight in support of your allegations.
[6] I did have concerns with the letter submitted from XXXX XXXX as the date it was written is not consistent with the date you have registered, but as your testimony was credible, I do find that you are a member of XXXX XXXX and have accepted your explanation that it was a typo. You were also able to provide spontaneous details during your testimony. There have been no relevant contradictions or omissions that would go to the core of your claim or would rebut the presumption of truth. I find that on a balance of probabilities, based on your testimony, that you are a bisexual woman for the following reasons.
[7] In your testimony your description of your same sex relationship flowed naturally and unprompted and was generally consistent with the evidence and your narrative. You were able to explain in detail about your past relationships and other specific details pertaining to them. You were able to provide significant details about your same sex relationships in Nigeria including how you disclosed your attraction to one another, the qualities you liked about your former partners, as well as details about the types of activities you and your partners enjoyed.
[8] You allege that you discovered your sexual orientation when you were in secondary school. This was in 1992. As you began to experience a feeling when you were around your female friends that made you happy. You testified that you started your first same sex relationship with XXXX while you were in secondary school in 1992. XXXXwas a classmate for some time but it was not until 1992 that the both of you were in a same sex relationship. Your relationship with XXXX began when the both of you were playing a game of truth and dare and you jokingly said that you were attracted to her and upon notifying XXXXof this, she was happy and one-week later XXXXasked you to kiss her. You testified about your attraction to her and the things that you enjoyed about her. Additionally, you testified that when she went away for school in 1994, the both of you broke up. You also testified that you tried to keep in contact with her by visiting her family’s home but they moved and you lost contact with them.
[9] You have testified at length about your relationship with your long-time partner, XXXX, which began in 2010 and ended in 2015 when she decided to get married. You testified that you met her while you were both working at the same school and you were able to provide detailed testimony about the work that she did. You were able to tell me about a memorable time when the both of you were working together on the school graduation in 2014. When asked why that was memorable, you testified that it was because you were organizing it together and that was a moment in which the both of you worked well as a team.
[10] You were able to testify about the celebrations that you shared together. You testified that you both celebrated Christmas together by cooking food and eating together. Additionally, you testified that you celebrated each other’s birthdays by buying each other gifts and you notified me of the gifts that were purchased for each other. The testimony provided was detailed and spontaneous.
[11] You also testified about another same sex relationship that you had while you were in Nigeria and this was with XXXX. This was your most recent same sex relationship in Nigeria as you first met XXXX in XXXX of 2018. When asked about how the two of you met, you were able to testify that she came into your store to make purchases and while she was there she would ask you questions with the intention of getting to know you. You were able to testify about the types of products she purchased from your store, along with the frequency of her visits which was three to four times per week.
[12] The relationship evolved as the both of you spent more time with each other and as the both of you had husbands that were not around, it gave you more time to get to know each other. You testified that your relationship became more serious in XXXX 2019 when XXXX came to your house and upon drinking wine you revealed your sexual orientation and became intimate. When asked about why you felt comfortable revealing this information to XXXX, you testified that she was trustworthy and you came to this understanding as she was not a judgemental person and was understanding.
[13] When asked about what activities the both of you did together, you indicated that you both enjoyed shopping and watching sexually explicit films together. I note that you submitted pictures of yourself and XXXX together in a variety of different settings, such as a store and in your room, which I do find support your allegations. When asked about the photos, you were able to provide consistent and detailed testimony. You were also able to provide consistent testimony about how your sexuality was exposed.
[14] You testified that XXXX’s husband discovered that she was spending a lot of time with you. Upon asking her about this XXXX revealed to her husband what was occurring between the two of you and she accused you of forcing this relationship onto her. XXXX’s husband since finding out this information has come to your house with the intent of inflicting harm. I find that on a balance of probabilities you were in these relationships as alleged.
[15] Additionally, you were able to provide me with information about your efforts to get into a relationship in Canada which have not been successful due to the pandemic as it has been difficult to make new connections. You were able to testify about your membership to the XXXX XXXX which I find to be credible. I therefore find on a balance of probabilities that you have established your sexual orientation as a bisexual woman and I have found your fear of authorities and your family to be credible. I do find that you have established your subjective fear.
[16] I further find on a balance of probabilities that you have an objective basis for your fear because the documented conditions for Nigeria as per the evidence in Exhibit 3, the NDP for Nigeria. Item 2.1 reads, a 2014 law effectively renders illegal all forms of activity supporting or promoting lesbian, gay, bisexual, transgender or intersex LGBTI rights.
[17] 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. This law also criminalizes the public show of same sex amorous affection. A 2016 Human Rights Watch report asserted police and members of the public used the law to legitimize human rights abuses against LGBTI persons such as torture, sexual violence, arbitrary detention, extortion, and violations of due process rights.
[18] Item 6.1 reads, homophobic violence is occurring without fear of consequences. It goes on to say law enforcement agents consider the vigilantes attacks as an intervention to ease their work to enforce peace in the community, therefore the victims are the ones who get arrested on the basis of homosexuality and face more stigma, discrimination, unlawful arrest, and detention, extortion, and rape. I find that on a balance of probabilities that your subjective fear has an objective basis. Therefore I find that you have a well-founded fear of persecution due to your sexual orientation.
[19] As same sex sexual activity is criminalized in Nigeria and since homophobic violence continues with impunity, I find that there is clear and convincing evidence that state protection would not be available to you. Furthermore, as same sex activity is criminalized in Nigeria, I find that there is no where in Nigeria where you would not face a serious possibility of persecution based on your membership in a particular social group as a bisexual woman. As the test for an Internal Flight Alternative fails on the first prong, I find that there is no viable Internal Flight Alternative for yourself.
[20] Based on the totality of the evidence, I find you have a serious possibility of persecution in Nigeria due to your membership in a particular social group as a bisexual woman and therefore to be a Convention refugee. Your claim is therefore accepted.
——— REASONS CONCLUDED ———