2023 RLLR 177
Citation: 2023 RLLR 177
Tribunal: Refugee Protection Division
Date of Decision: December 20, 2023
Panel: Kalliopi Kefalas
Counsel for the Claimant(s): Amina G Osuoha-Muhammad
Country: Nigeria
RPD Number: VC3-03295
Associated RPD Number(s): N/A
ATIP Number: A-2024-00894
ATIP Pages: N/A
DECISION
[1] MEMBER: This is a decision of the Refugee Protection Division in the claim of XXXX XXXX, who claims to be a citizen of Nigeria and who is seeking protection pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act or IRPA. In rendering my reasons, I have considered and applied Guideline 4 on gender considerations in proceedings before the Immigration and Refugee Board, which offers guidance in cases involving gender considerations. I have also considered and applied the Chairperson guideline 9 on proceedings before the IRB involving sexual orientation, gender identity and expression, and sex characteristics or SOGIESC. In application of the SOGIESC guidelines, I note that the claimant has identified herself as a bisexual woman in reference to her sexual orientation. I have thereby used this term in addressing the claimant’s sexuality in this decision. I have also applied its sections seven (7) and eight (8) on assessing the credibility of the claimant’s allegations of being a bisexual woman in light of her particular circumstances.
ALLEGATIONS
[2] The following is a brief synopsis of the allegations contained in the claimant’s Basis of Claim form and narrative in Exhibit 2. The claimant is a bisexual woman who fears persecution by her family, society at large, and the state due to her sexual orientation.
DETERMINATION
[3] I find that the claimant is a Convention refugee pursuant to section 96 of the IRPA.
ANALYSIS
Identity
[4] I find that the claimant’s personal identity and identity as a citizen of Nigeria are established on the balance of probabilities by a copy of her Nigerian passport in Exhibit 1.
Credibility
[5] I found the claimant to be a credible witness. In line with the Federal Court’s decision in Maldonado v. Canada, a claimant’s sworn testimony creates a presumption that the individual’s allegations are true unless there is a reason to doubt their truthfulness. In this case, I found the claimant to be credible, consistent, sincere, and forthright in her testimony and there were no inconsistencies between her testimony and the evidence on file. In support of her claim, the claimant provided documentary evidence found in Exhibit 4. Particularly relevant are the following; e-mails between the claimant and her sister wherein they speak of how the claimant’s family knows of the claimant’s sexual orientation and how her family members are now in hiding, photos of and text messages between the claimant and her current partner, XXXX. I have noted no discrepancies between the allegations, the claimant’s testimony, and the documents. I have no reason to doubt the authenticity of the documents, and as such, I accord them full weight.
[6] The claimant’s current partner, XXXX XXXX, you think, also testified as a witness. She spoke credibly about her relationship with the claimant. Her testimony and the testimony of the claimant were largely consistent. I did note one (1) inconsistency between the witness’ testimony and the claimant’s, which is that the claimant testified that she told the witness of her sexual orientation approximately two (2) months after they met, while the witness said she told her on the same day they met. I put the inconsistency to the claimant and she did not have an explanation. When the claimant’s Counsel questioned the claimant, she asked the claimant if they discussed her sexual orientation on more than one (1) occasion and if she disclosed her sexual orientation a couple of months after the two (2) met. Both questions were answered in the affirmative. Ultimately, this discrepancy is not material in the claim and the claimants and the witness’ testimonies were consistent about the central allegation, which is her sexual orientation. I accept that the claimant is a bisexual woman on a balance of probabilities and that her sexual orientation has been found out by her family and community in Nigeria. Considering the evidence as a whole including the claimant’s credible testimony regarding her sexual orientation, I find that the claimant has established a genuine subjective fear of persecution.
Nexus
[7] The claimant alleges that she will face persecution in Nigeria because of her sexual orientation as I find such allegations have a nexus to the Convention ground of membership in a particular social group, SOGIESC. I have assessed her claim according to section 96 of the IRPA.
Well-Founded Fear of Persecution
[8] Based on the claimant’s testimony regarding her sexual orientation and the available documentary evidence on Nigeria, I find that she has a well-founded fear of persecution in her home country. The country condition information on Nigeria is clear that individuals with diverse SOGIESC are subjected to prosecution, physical harm, societal discrimination, and ostracisation in Nigeria. At Tab 6.2 of the National Documentation Package for Nigeria, a report titled Nigeria State-Sponsored Homophobia 2019 by the International Lesbian, Gay, Bisexual, Trans and Intersex Association indicates that Nigeria is one (1) of the most homophobic countries in the world. This is due to the severity and comprehensiveness of Nigerian legislation that criminalises same-sex relationships. This is also due to the discriminatory and violent treatment given to LGBTQI+ persons, which is done in the form of arbitrary arrest, blackmail, physical and psychological abuse by police, kidnapping, extortion, harassment, sexual attacks, subjection to conversion therapy, pressure to marry, and involuntary outing by family and society members.
[9] Tab 6.7 also indicates that LGBT people have been targeted for extortion by former lovers, friends, and family members when their same-sex activities have been discovered. Blackmail and extortion are common for male homosexuals, but a significant number of lesbians and bisexual women have been targeted. This aligns with the claimant’s own testimony about being blackmailed when she was discovered with her girlfriend in Nigeria. At Tab 6.12 of the NDP, a United Kingdom Home Office country policy on sexual orientation and gender identity or expression for Nigeria notes among other things that there are a number of documented arrests of LGBTQI+ persons including mass arrests. Recent polling cited in this report states that 75% of Nigerians polled support the criminalisation of same-sex relationships and overall concludes that persons who openly express their sexual orientation or gender identity are likely to face discrimination and ill-treatment from both state and societal actors.
[10] Furthermore, a U.S. Department of State report found at Item 2.1 states that the law effectively renders illegal all forms of activity supporting or promoting lesbian, gay, bisexual, transgender, queer, and intersex or LGBTQI+ rights. The law criminalises the registration, operation, or participation in so-called gay clubs, society, or organisation and further prohibits any support to such organisation. The same report also indicates that LGBTQI+ persons reported harassment, threats, discrimination, and incidents of violence against them based on their real or perceived sexual orientation or gender identity and that more than 10% of these cases involve state actors. As another example, a report from the International Lesbian, Gay, Bisexual, Trans and Intersex Association dated March 2019, located at 6.2, states that the harsh laws enforced in Nigeria and its effects on LGBT people have been widely documented. In fact, Nigeria has been cited as one (1) of the most homophobic countries in the world, not only due to the severity and comprehensiveness of its legislation, but also for the discriminatory violence, violent treatment given to LGBTI people in the form of arbitrary arrests, blackmail, physical and psychological abuse by the police and kidnapping, extortion, harassment, sexual attacks, subjection to conversion therapies and pressure to marry, and involuntary outing by family and society members. Based on the claimant’s BOC, testimony, country condition evidence, and the totality of the evidence before me, I find that the claimant has established a well-founded fear of persecution if she were to return to Nigeria by reason of her sexual orientation. I find that the claimant faces a serious possibility of persecution if she were to return.
State Protection and Internal Flight Alternative
[11] Given that the state is an agent of persecution of individuals with or who are perceived to have SOGIESC that do not conform with the socially accepted norms in Nigeria, I find that there is no state protection available to the claimant. Furthermore, given that the state’s capacity in the criminalisation of same-sex conduct as outlined above, I find that the claimant would face a serious possibility of persecution throughout Nigeria. Accordingly, I find that there is no Internal Flight Alternative available to the claimant.
CONCLUSION
[12] For the foregoing reasons, I find that the claimant is a Convention refugee pursuant to section 96 of the IRPA, and as such, I accept her claim.
——— REASONS CONCLUDED ———