2023 RLLR 171

Citation: 2023 RLLR 171
Tribunal: Refugee Protection Division
Date of Decision: December 4, 2023
Panel: David Ang
Counsel for the Claimant(s): Ezinwanne Jacqueline Ozor
Country: Nigeria
RPD Number: TC3-27082
Associated RPD Number(s): N/A
ATIP Number: A-2024-00894
ATIP Pages: N/A

 

DECISION

 

[1] MEMBER: These are my oral reasons for claim number TC3-27082.

 

[2] The claimant, XXXX XXXX XXXX, claims refugee protection, pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. 

 

[3] In coming to this decision, I have taken into consideration the Chairperson’s Guideline 9 on Sexual Orientation, Gender Identity and Expression, and Sex Characteristics.

 

[4] I find that the claimant has established that he faces a serious possibility of persecution in Nigeria due to his sexual orientation, which he identifies as bisexual.

 

[5] Therefore, I find that the claimant is a Convention refugee, pursuant to section 96 of the IRPA.

 

[6] The claimant’s allegations are set out in his Basis of Claim form at Exhibit 2. The claimant alleges that he is at risk of persecution in Nigeria, because he is bisexual.

 

[7] I find that the claimant’s identity as a citizen of Nigeria is established, on a balance of probabilities, by his testimony and a copy of his Nigerian passport.

 

[8] I find that there is a nexus to a Convention ground, based on sexual orientation.

 

[9] The claimant testified in a straightforward manner, and overall, I found his testimony to be consistent with his Basis of Claim and supporting documents.

 

[10] On the testimony and the evidence before me, I find that the claimant has established, on a balance of probabilities, a profile as a bisexual man.

 

[11] The claimant testified that his sexual orientation is bisexual, which he described as meaning he is attracted to both the same sex and opposite sex. He testified that he first came — that he first became aware of his sexual orientation when he was in primary school, but it became clear to him when he was in secondary school, when he was 18 or 19 years old.

 

[12] I asked him how he felt about it at that time, and he answered that it was not common within society, and that he wanted to keep it as a secret to himself. 

 

[13] I accept his explanation of how he came to understand his sexual orientation.

 

[14] The claimant testified that he has had four (4) relationships in his life, three (3) with men and one with a woman, his wife. 

 

[15] He testified that he was in a relationship for six (6) years with O. E., who he met at his job at XXXX XXXX XXXX XXXX, a company that XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The claimant worked this job after completing secondary school, and before he began his university studies. O. E. was his supervisor at work. 

 

[16] The claimant testified or described O. E. as handsome and tall with broad shoulders. He described O. E.’s personality as bold, as a bold and friendly guy, and that he was supportive in their relationship, and that they talked about life, their plans, and the future. He testified that O. E. supported him with school fees when the claimant began his university studies in 2007. The claimant testified that the relationship ended in 2012, when O. E. was transferred to Congo for work, and they lost touch.

 

[17] I find that the claimant testified in a forthcoming manner, with respect to O. E., and I accept that they were in a genuine same-sex relationship together.

 

[18] The claimant testified that he tried dating another student, A. O., for three (3) months during university, but that they were not compatible.

 

[19] He was married in 2015, and he and his wife have a son together. 

 

[20] He testified that he did not have any other same-sex relationships until 2022, with his apprentice, C. A. He testified that C. A. became his apprentice in 2019. The claimant began picking him up and dropping him off from work, and they began spending more time together. They began a sexual relationship at the beginning of XXXX 2022.

 

[21] The claimant testified that one of his other employees, “O”, suspected their relationship. He testified that on XXXX XXXX, 2023, he was at C. A.’s place, when “O” and the claimant’s wife banged through the door and discovered them. The claimant testified that he managed to escape, and he stayed for a night in a hotel in Lagos, then flew the next day to Abuja.

 

[22] He testified that his wife was upset with him but helped him leave the country. He testified that his wife told him that C. A. got arrested. The claimant testified that he believes C. A. is still in detention, though he answered that nobody had told him this. He testified that he hid in Abuja for five (5) to six (6) weeks, and that his friend was able to find him an agent. His visa to Canada was issued on XXXX XXXX, 2023, and he departed Nigeria on XXXX XXXX, 2023. 

 

[23] He testified that the police came looking for him, at first at his business and then at his home. He testified that C. A.’s family came looking for him at his home, as well. He testified that his wife had to close the business and relocate with — relocate to his mother-in-law’s home in Lekki to hide from the police and C. A.’s family.

 

[24] I find that the claimant’s testimony was consistent with his Basis of Claim and the supporting letters in this evidence.

 

[25] The claimant testified that since coming to Canada, he’s been dating another man here, M. C. He testified that they met through the Facebook dating app in XXXX 2023. He provided copies of their dating messages and WhatsApp exchanges, though none of them were dated. He provided an email from M. C. dated XXXX XXXX, 2023, describing their relationship.

 

[26] I asked the claimant why there was no identification attached, and the claimant explained that M. C. had declined to provide his ID. 

 

[27] I find that I can only give M. C.’s email limited weight.

 

[28] However, during the hearing, I asked the claimant to show me their WhatsApp conversations on his phone, which he did without issue. And I could see that they were communicating as recently as yesterday, and that their communications were affectionate.

 

[29] Based on this and the claimant’s testimony, I am satisfied that the claimant is in a genuine relationship with M. C.

 

[30] Since coming to Canada, the claimant testified that he has been involved with XXXX XXXX and the XXXX XXXX XXXX XXXX XXXX, or XXXX XXXX. The claimant testified that he has volunteered with XXXX XXXX at their events, including their XXXX XXXX XXXX fundraiser, the XXXX XXXX XXXX XXXX, and at the XXXX XXXX XXXX. He provided a letter from XXXX XXXX, which indicates that he has completed XXXX hours of volunteer work with XXXX XXXX.

 

[31] I find that the claimant has demonstrated his involvement in the LGBT community since arriving in Canada.

 

[32] Therefore, I find that the claimant has established, on a balance of probabilities, a profile as a bisexual man.

 

[33] Based on the claimant’s testimony and the evidence before me, I find that the claimant has established, on a balance of probabilities, a subjective fear of persecution as a bisexual man, if he were to return to Nigeria.

 

[34] I find that the claimant has an objective basis for his subjective fear, that is grounded in the objective country evidence.

 

[35] The National Documentation Package for Nigeria, current as of May 31st, 2023, is marked as Exhibit 3.

 

[36] Same-sex activity is prohibited by federal law in Nigeria and is punishable by up to 14 years in prison. That’s found at NDP Item 6.17. 

 

[37] In a 2019 Nigerian poll, 75 percent of respondents stated that they support the criminalization of same-sex relationships, and 74 percent of those polled supported jail terms. That’s found at NDP Item 6.12.

 

[38] The country condition evidence indicates that LGBT persons face societal discrimination and violence, blackmail, extortion, threats, hate speech, and sometimes mob attacks and murder. And the existence of the law creates a sense of impunity for people to commit rights violations against LGBT persons. That’s found at NDP Item 6.12 and 6.17.

 

[39] Therefore, I find the claimant has a well-founded fear of persecution.

 

[40] In assessing the issue of state protection for the claimant, the presumption is that the State can protect its citizens, except in situations where the State is in complete breakdown. The claimant has the onus of rebutting the presumption of state protection, by providing clear and convincing evidence that the protection in their home country is inadequate.

 

[41] In the claimant’s case, the State is the agent of persecution. The objective country condition evidence describes that the federal law against same-sex relations in Nigeria has become a tool used by police to legitimize human rights violations against LGBT persons, including arbitrary detention and arrest, and invasion of privacy. That’s found at NDP Item 2.1.

 

[42] As the State is the agent of persecution, the presumption of state protection has been rebutted. 

 

[43] Similarly, as the federal law prohibiting same-sex activity applies throughout the country, and homophobic attitudes exist throughout the country, I find, on a balance of probabilities, that there is no viable internal flight alternative in Nigeria for the claimant, and that he faces a serious possibility of persecution throughout Nigeria.

 

[44] Having considered all the evidence, I find that the claimant is a Convention refugee, on the grounds of his membership of a particular social group, bisexual, and that he has established that he faces a serious possibility of persecution in Nigeria.

 

[45] Therefore, his claim is accepted.

 

——— REASONS CONCLUDED ———