2023 RLLR 168
Citation: 2023 RLLR 168
Tribunal: Refugee Protection Division
Date of Decision: December 29, 2023
Panel: S. Mahmood
Counsel for the Claimant(s): Daniel Etoh
Country: Nigeria
RPD Number: TC3-22968
Associated RPD Number(s): N/A
ATIP Number: A-2024-00894
ATIP Pages: N/A
DECISION
[1] XXXX XXXX XXXX, a citizen of Nigeria, claims refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]
ALLEGATIONS
[2] The claimant’s allegations were set out in his oral testimony and Basis of Claim form (BOC).[2] In short, the claimant alleges a fear of persecution from Nigerian society and state authorities, due to his sexual orientation.
[3] The claimant fled from Nigeria to Canada in XXXX 2023. He made his claim for protection in February 2023.
DETERMINATION
[4] I find that the claimant is a Convention refugee pursuant to section 96 of the IRPA, as he would face a serious possibility of persecution, should he return to Nigeria, due to his sexual orientation.
[5] In making this assessment, I have considered all the evidence, including the oral testimony, documentary evidence entered as exhibits, and Counsel’s submissions. I have also considered Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics.[3]
ANALYSIS
Identity
[6] Personal identity and country of reference are established for the claimant, on a balance of probabilities, by the copy of his Nigerian passport.[4]
Nexus
[7] The claimant alleges a fear of persecution due to his sexual orientation, and sexual orientation is a Convention ground. I have therefore assessed his claim under section 96 of the IRPA.
Credibility
[8] In assessing the credibility of the evidence presented by the claimant, I was cognizant of the Federal Court of Appeal in Maldonado[5] wherein the Court stated, in part, that “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.”
[9] I find the claimant to be credible. He testified without hesitation and was responsive to all questions asked. His testimony was consistent with his BOC and personal supporting documents. I did not find reason to doubt the authenticity of his personal supporting documents.
[10] The claimant testified in detail regarding how he discovered his sexual orientation. He indicated that he is bisexual. He also provided detailed evidence regarding his same sex relationship in Nigeria. He testified about how this relationship began and progressed. He also testified about how he kept this relationship a secret from his spouse and other family members, for many years. Ultimately, however, the same sex activities of his partner were discovered. This led to the same sex activities of the claimant being discovered by his spouse and family members. The claimant sought refuge in Canada after facing threats from his father. His spouse did not speak to him for months. She eventually forgave him but writes in her letter that she will never forget the severe emotional distress and humiliation that she faced in Nigeria, due to the discovery of her spouse’s sexual orientation.[6]
[11] The claimant furthermore testified about how he met his current same sex partner, after entering Canada. His same sex partner appeared as a witness at the hearing. Both the claimant and his partner were able to provide credible testimony, regarding their relationship. Their testimony regarding their relationship was both detailed and consistent.
[12] The claimant provided personal supporting documents in support of his claim.[7] In particular, he provided letters of support from his spouse, brother, and same sex partner in Canada. He also provided photographs of himself with his same sex partner in Canada. He also provided letters of support from the XXXX organization, the XXXX XXXX XXXX XXXX XXXX, and the XXXX XXXX XXXX XXXX XXXX.
[13] Based on the credible testimony of the claimant, as well as his personal supporting documents, I accept the claimant’s allegations regarding his sexual orientation and same sex partners, on a balance of probabilities.
Well-Founded Fear of Persecution is Established
[14] I find that the claimant has a well-founded fear of persecution in Nigeria. His subjective fear is established by his credible testimony, as detailed above. I also find that there is an objective basis for this fear.
[15] The objective documentation supports the claimant’s allegations that individuals in his circumstances face persecution from both Nigerian authorities and communities. Same sex activity is criminalized in Nigeria and is punishable by up to fourteen years imprisonment under Federal law.[8] The majority of Nigerians continue to view LGBT+ rights negatively, and 74% of respondents surveyed in 2019 supported imprisonment of those who engage in same sex relationships.[9] Furthermore, LGBT+ persons are subjected to violence in Nigerian communities, including violent vigilante and mob attacks.[10]
[16] Considering the totality of the evidence, I find that the claimant has a well-founded fear of persecution in Nigeria.
State Protection
[17] There is a presumption that states are capable of protecting their citizens. However, I find that this presumption has been rebutted with clear and compelling evidence in this case, as the agent of persecution is the state itself, since same sex activity is criminalized throughout Nigeria.[11] Accordingly, I find that there is no adequate state protection available for the claimant in Nigeria.
Internal Flight Alternative
[18] To determine whether a viable internal flight alternative exists, I must consider a two-pronged test. In this case, the agent of persecution is the state itself, since same sex activity is criminalized throughout Nigeria.[12] Accordingly, I find that the claimant would face a serious possibility of persecution throughout Nigeria. In particular, he would not be able to live openly anywhere in Nigeria as a bisexual individual.
[19] Accordingly, the first part of the two-pronged test fails. I therefore need not consider the second prong. I find that there are no viable internal flight alternatives available to the claimant, anywhere in Nigeria.
CONCLUSION
[20] I conclude that, on a balance of probabilities, the claimant would face a serious possibility of persecution, should he return to Nigeria, due to his sexual orientation.
[21] Having considered the totality of the evidence, I find that the claimant is a Convention refugee pursuant to section 96 of the IRPA. I therefore accept his claim.
——— REASONS CONCLUDED ———
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, Sections 96 and 97(1)
[2] Exhibit 2
[3] Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, Effective date: May 1, 2017, Revised: December 17, 2021
[4] Exhibit 1
[5] Maldonado, Pedro Enrique Juarez v. M.C.I. (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19, 1979. Reported: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.).
[6] Exhibit 5
[7] Exhibit 5
[8] Exhibit 3, Item 6.2
[9] Exhibit 3, Item 6.3
[10] Exhibit 3, Item 6.1
[11] Exhibit 3, Item 6.2
[12] Exhibit 3, Item 6.2