2023 RLLR 193
Citation: 2023 RLLR 193
Tribunal: Refugee Protection Division
Date of Decision: December 18, 2023
Panel: Mihaela Kerezova
Counsel for the Claimant(s): Emmanuel Roy-Allain
Country: Nigeria
RPD Number: TC3-03795
Associated RPD Number(s): TC3-03796
ATIP Number: A-2024-01010
ATIP Pages: N/A
DECISION
INTRODUCTION
[1] This is the decision in the claims for refugee protection made by XXXX XXXX XXXX XXXX (the “Principal claimant”), and her daughter XXXX XXXX XXXX (the “Minor claimant”). The claimants allege to be citizens of Nigeria and are seeking refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the “IRPA”).[1]
[2] The claims have been joined pursuant to Rule 55(1) of the Refugee Protection Division (“RPD”) Rules; and the principal claimant has been named and acting as a Designated Representative (“DR”) for the minor claimant on this file. The minor claimant relies on the principal claimant’s narrative for her allegations and principal’s testimony at the hearing.
[3] In rendering its decision, the panel also considered and applied the Chairpersons Guideline 3 for Proceedings Involving Minors (“Guideline 3”) and Chairpersons Guideline 4 for Gender Considerations (“Guideline 4”) in Proceedings before the Immigration and Refugee Board (“IRB”) in relation to the allegations made by the claimants.
ALLEGATIONS
[4] The detailed allegations are fully set out in the claimants’ Basis of Claim Forms (the “BOCs”)[2] and the narrative. In summary, shortly after her birth, the minor claimant, who is the second child in the principal claimant’s family, was diagnosed with XXXX XXXX (“XXXX”) – a rare condition which affects all her bones and makes them soft and fragile. This led to persecution of the claimants and their family in Nigeria where they experienced a high degree of stigma and isolation by the society, and accusations by members of their extended family (principal claimant’s in-laws) that they are responsible for the deaths in the family and that the minor claimant is an “evil child” who brings bad genes on the entire family.
DETERMINATION
[5] The panel finds that both claimants are Convention refugee pursuant to section 96 of the IRPA on the grounds of membership in a particular social group as a person with rare medical condition for the minor claimant; and, by extension to her, on the grounds of membership in a particular social group as a family member (mother) of a person with disability for the principal claimant. The panel’s reasons follow below.
ANALYSIS
Identity
[6] The national and personal identities of the claimants as citizens of Nigeria have been established, on a balance of probabilities by certified copies of their Nigerian passports.[3]
[7] The principal claimant, acting as a designated representative for the minor, provided a Letter of Consent for the Minor’s Custody in Canada signed by the minor claimant’s father (who is not part of this claim) and dated XXXX XXXX, 2023.[4]
Nexus
[8] The panel finds that there is nexus between the claimants’ allegations and a Convention ground based on the minor claimant’s membership in a particular social group, due to her rare medical condition and impairment; and further to that, by extension to the principal claimant, as a family member (mother) of a person with disability. In addition, the principal and the minor claimants’ gender puts them to an increased risk of stigma in Nigeria. The panel therefore takes an intersectional approach in its assessment while taking into consideration S. 8.3 of Guideline 3 and S. 6 of Guideline 4. The claims are assessed under both sections 96 and 97(1), and for the purposes of its decision, the panel focused mainly on section 96 of the IRPA.
Credibility
[9] In assessing both claims, the panel takes into consideration the principal claimant’s oral testimony, the documentary evidence entered as exhibits, and the counsel’s oral submissions. In general, while testifying for herself and as a DR on behalf of her child (minor claimant), the principal claimant was direct and spontaneous; and there were no significant material inconsistencies or contradictions between her testimony and the claimants’ BOC narratives, and the other documentary evidence before the panel.
[10] Apart from the oral testimony of the principal claimant, the claimants provided ample corroborating documentary evidence in Exhibits 5.1 through 5.4[5] to support their claims. The panel has no reasons to doubt the genuineness of any of the documents they have provided and assigns full weight to all of them. Based on the totality of all the evidence before it, the panel finds on a balance of probabilities the following:
i. The claimants’ challenges started in 2011 when the minor claimant was born with rare medical condition called XXXX XXXX (“XXXX”)[6] which causes the bones to break easily without a particular reason. As part of her condition, the minor claimant also has physical features (XXXX XXXX) that visibly distinguish her from all other people in Nigeria. As a result of the minor claimant’s health condition, the claimants and their family in Nigeria started experiencing stigmatization and isolation from relatives, friends, and the society in general.[7]
ii. Due to the nature of the minor’s medical condition, where there are only few individuals (4) identified with the same diagnosis in the country, there are no adequate health provisions or remedies available to her in Nigeria and therefore, the principal claimant started looking into options for treatment of the minor overseas, including access to rare medications provided by an XXXX Foundation in the USA.[8] The minor was also treated in Canada for several months in 2017 and 2018 and underwent total of XXXX surgeries since 2017.[9]
iii. When the minor claimant reached school age, the challenges for the claimants increased because of the lack of suitable facilities where the minor can get safely without being injured and because of the lack of knowledge/education about her condition by the Nigerian teachers, who cannot protect her from incidents at school. The minor claimant suffered several incidents and was mistreated by her peers who did not want to get close to her and therefore, her parents removed from school.[10]
iv. The isolation and persecution by extended family members and the Nigerian society worsened as the minor claimant grew older, as she started noticing how she is ostracized by others and came to the realization that this is due to her medical condition. Thus, the claimants have established the reasons for their subjective fear of remaining in the same environment in Nigeria, where there is serious possibility that the minor claimant and her mother will be persecuted because of her disability.
v. The perspective of the claimants’ return to Nigeria will have a serious impact on their safety and well-being; and on a balance of probabilities, it will lead to deterioration of the minor claimant’s condition and the subsequent mistreatment and isolation by family members and society which amounts to their persecution.
[11] The panel carefully reviewed the minor claimant’s history and her medical records, as presented in support of the claims, and finds the principal claimant to be a very credible witness, based on her testimony on the problems the family was facing in Nigeria. The panel further finds on a balance of probabilities that the minor claimant would not have access to adequate and proper treatment to her condition in Nigeria and that this, in turn, may result in additional physical and psychological harm to her, such as bone fractures and injuries and maltreatment by the Nigerian society.
[12] Accordingly, this would also put her at increased risk of persecution and high stigmatization; or may lead to her to being forcefully confined to one location, without the opportunity to have access to education and other services. For any of these challenges the minor will require the protection of her mother (the principal claimant) which, by extension, brings to her own risk of persecution for the principal claimant as a family member of a child with disability in Nigeria.
[13] In light of the generally credible and spontaneous testimony of the principal claimant where there were no major omissions and/or unresolved credibility concerns or inconsistencies between their BOC narratives, the panel finds, on a balance of probabilities that the documentary evidence provided by the claimants fully corroborates to their allegations of the minor claimant’s condition and the subsequent persecution, she and her mother will face in Nigeria.[11]
[14] With respect to the adult claimant (the principal), the panel turns its mind to the forward-looking risk she alleges to be facing in Nigeria because of her child. The panel takes into consideration that she is the primary caretaker for the minor claimant and thus, she would also fall within the Convention ground as a family member of someone with disability in Nigeria because of her daughter’s specific medical condition and disability. Based on the principal claimant’s testimony and the documentary evidence, the panel finds on a balance of probabilities that the principal claimant also faces persecution from her relatives and the society in Nigeria.
[15] In assessing the impact of the minor claimant’s condition on the principal claimant, the panel takes into consideration the principal claimant’s testimony that there are both side talks, or that people would openly tell her in her face that she has a “half-woman” child. Her in-law’s family also force her to undergo traditional rituals and accuse her of disgrace and shame to their family because she gave birth to an “evil child” and that there will be bad luck and death in the family and misfortunes, and therefore, the family wants to get rid of her. The claimants’ other family members (including minor’s father and siblings) also face discrimination and harassment themselves in Nigeria as they try to protect their child/sister (the minor).
[16] The principal claimant further testified that her husband’s colleagues at work withdrew from him and their family, including the other children, had been subjected to mockeries by the society. Pregnant women move to the other side of the streets as they try to avoid getting close to the minor claimant and her mother (principal) because they think their child may also get “infected”. The principal claimant testified that her problems are doubled and her career as an XXXX had also been affected. She testified she may lose her life at the hands of her in-laws or society if returned to Nigeria because she dedicated herself to protecting her daughter (minor).
[17] In summary on the above, the panel concludes, on a balance of probabilities that both claimants have established their subjective fear of persecution in Nigeria because of the minor claimant’s rare medical condition.
Objective Evidence and Well-Founded Fear
[18] In order to be considered a Convention refugee, the claimants must demonstrate a well-founded fear of persecution. This includes both the subjective and an objective basis for that fear, and it must be forward-looking. The panel finds that the claimants’ fear of persecution in Nigeria is objectively well-founded for the reasons below.
[19] The principal claimant testified that it has taken years of working persistently with the minor claimant’s condition and to upkeep with their lives while looking for treatments for the minor outside Nigeria. This also included the surgeries she underwent in Canada and the continuing work of her health team in attempt to improve the minor claimant’s condition; and while they have made much progress, it is still something they are working on and monitoring.
[20] Upon reviewing the objective evidence available from the National Documentation Package (“NDP”) on Nigeria,[12] the panel finds that there is also an objective basis to the claimants’ fear. Item 1.27 from the NDP speaks about significant obstacles to accessing health care in Nigeria, including lack of funds, facilities, and mental health personnel as well as cultural and religious stigma around mental health issues.[13] While there has been some education for society in Nigeria around mental health conditions and that it has been improving, mental health is still very heavily stigmatized, and it is seen as a taboo. People with mental health conditions are referred to as “mad people”, they are ex-communicated from their families and forced to roam the streets and eat from rubbish dumps.[14]
[21] This is in line with the principal claimant’s testimony that the minor claimant sees the beggars on the streets as one “of hers”. While it is acknowledged that the minor claimant’s health condition is not related to a mental health issue, the panel finds, on a balance of probabilities, it is perceived as having such by the society and the relatives, based on the principal claimant’s testimony. In reviewing the NDP further, the panel notes that, a WHO representative stated that “[i]t is quite challenging for people with mental illness in Nigeria as they are subjected to discrimination, harassment, abuse, or violence.”[15]
[22] The EASO Country of Origin Information Report of Nigeria, states that persons with mental or physical disabilities suffer from social stigma, exploitation, and discrimination. Further, rare illnesses, such as the one the minor claimant has, are widely misunderstood, and often believed to be caused by spiritual forces, evil spirits, sorcery, and gods punishing an individual for sins. Consequently, treatment of individuals with such health conditions, is focused on ant-witchcraft treatments.[16] Research into the knowledge and attitudes of the society towards such individuals speaks to how they are frequently perceived as dangerous, suspicious and that there are other negative stereotypes that provoke further negative prejudice.
[23] A Human Rights Watch article provides a detailed report of the persecution faced by
individuals with perceived [my emphasis] and actual mental health conditions in Nigeria, and highlights the acts of chaining, unlawful detention, and violent treatment that is pervasive in many settings including religious faith-based facilities, traditional healing centres, state hospitals, and rehabilitation centres.[17] The same article states that individuals with actual or perceived mental health conditions are placed in facilities without their consent, usually by relatives.
[24] Item 5.12 of the NDP[18] clearly indicates that there is mistreatment and stigma from the society (p. 19) regarding children and their families, and persons with disabilities are ostracized and removed from the society. They are rendered invisible to avoid embarrassment which speaks of isolation. The same reference, on p. 20 speaks of hostile environment and on p. 21 cites about the individual believes that society holds about people with disabilities and how it considers that they have been punished for sins. There is a whole range of negatives that can be attributed to the stigma and people do not want generally to be associated with a disabled person. Further, on p. 40, it reports that children with disabilities face increased risk, including kidnapping, other forms of violence, and abuse from family members. This information fully aligns with the personal circumstances of the claimants in Nigeria.
[25] Thus, based on the objective country documentation, the panel finds on a balance of probabilities that the minor claimant would not receive the necessary and intense treatment and care that she needs for her health condition and that she likely would not have proper and continued access to her medications or required social services. The panel further finds that she faces a serious possibility of societal persecution and of forced institutionalization or confinement, because of her disability and thus, she faces a serious possibility of being subjected to other harmful and inhumane practices should she return in Nigeria. As such, the risk of her persecution also extends to the mother (the principal claimant) who is blamed for giving birth to a child with disabilities and will be further persecuted and ostracized by the society in Nigeria.
[26] Considering the evidence in its totality, the panel finds that both claimants would be viewed negatively in Nigeria by the society, the principal claimant would not get the kind of care that her condition demands and that, in Nigeria, the mistreatment of people with rare health conditions and their family members does amount to persecution. The panel therefore finds that there is a forward-facing risk as the country conditions at hand lead to a serious possibility of persecution of both claimants in the future. Accordingly, the panel finds that both claimants have established a well-founded fear of persecution in Nigeria.
[27] Based on claimants’ testimony about the health treatment regime and after reviewing the minor claimant’s medical records, the panel finds it is reasonable to conclude that the minor’s diagnosis requires intense, focused, careful, and constant treatment and monitoring. Therefore, it is also reasonable to conclude that she requires high level of quality care and medications and a specialized team to follow up which she does not have access to in Nigeria. Thus, there is reasonable chance that her condition may deteriorate, and she may be harmed if she returns.
[28] In light of all these objective reports, the claimants’ documents and the principal claimant’s own testimony, the panel finds that both claimants face a serious possibility of persecution in Nigeria on account of the minor’s claimant’s rare medical condition and that the risk they would both face in Nigeria is objectively well-founded.
State Protection
[29] States are presumed to be capable of protecting their citizens unless there is complete breakdown in the country. To rebut this presumption, the claimants must establish, by way of clear and convincing evidence that no such protection exists, on a balance of probabilities. The panel takes intro consideration the principal claimant’s testimony that the authorities cannot protect them in Nigeria because their problem is instilled in the people’s believes which the authorities are not able to handle.
[30] The panel turns to review the objective evidence available through the NDP on this matter and notes that, in some cases police arrest people with actual or perceived mental health conditions and send them to government run rehabilitation centers.[19] When the police are called because of an incident, it is common for them to use “more” force[20] and police agents sometimes arrest people with mental illness “without reasons” as many of them become homeless after being rejected by their families.[21]
[31] Furthermore, the OSAC Country Security Report also indicates a serious lack of resources which continues to undermine the effectiveness of the Nigeria Police Force (NPF).[22]The Nigerian Corruption Report indicates the Nigerian Police Force has a high level of corruption and police officers continue to operate with impunity.
[32] The panel notes that, according to Item 5.18 of the NDP,[23] laws against discrimination against people with disabilities in Nigeria do exist. Nevertheless, as seen on p. 121 in Item 5.12 of the NDP, they will not have the power to be applied in the minor claimant’s case, due to lack of expertise and functionality with her rare illness and lack of funding, which brings additional challenges. Accordingly, the panel finds on a balance of probabilities that, even if complaints of mistreatment by the society are registered by the claimants, no adequate action can be taken by the Nigerian authorities and effective and/or operational support can not be offered to them.
[33] The principal and the minor claimants have therefore credibly established that the state of Nigeria is unable or unwilling to provide them with adequate protection. Thus, the panel finds that both claimants have rebutted the presumption of state protection in Nigeria through their clear and convincing evidence to corroborate for the same.
Internal Flight Alternative
[34] The panel has examined whether a viable internal flight alternative exists for the claimants in Port Harcourt or Ibadan and whether it will be safe for them to relocate there. There is a high burden placed on the claimants to demonstrate that the internal flight alternative is unreasonable. It requires nothing less than the existence of conditions that would jeopardize the life and safety of the claimants in relocating to a safe area. Actual and concrete evidence of adverse conditions is required.
[35] The test for an internal flight alternative is well established. The panel must be satisfied that:
(i) the claimants would not be subject personally to a danger of torture or to a risk of their lives or a risk of cruel and unusual punishment, or face a serious possibility of persecution in the proposed internal flight alternative; and
(ii) that conditions in that part of the country are such that it would be objectively reasonable, in all the circumstances, including those particular to the claimants, for them to seek refuge there.
[36] According to p. 19 of Item 5.12 from the NDP on Nigeria, there is mistreatment and stigma from the society regarding children and their families. Persons with disabilities are ostracized and removed from the society. They are rendered invisible to avoid embarrassment which speaks of isolation. The panel notes that the development of the minor claimant’s condition made it difficult for the principal claimant to pursue any employment in Nigeria due to her constant engagement in the activities related to her daughter’s treatments and due to the precautionary steps, she needed to undertake in protecting her daughter from potential future fractures and from incidents of mistreatment by the society.
[37] The panel has already established above that the state protection is rebutted and there are no effective operational activities that the state has offered to the claimants. As Nigeria is complicit in violence against individuals with specific conditions, and the fact that deeply rooted belief systems surrounding serious health conditions continue to exist among the public, the panel finds, on a balance of probabilities, that the claimants would face a serious possibility of persecution in all parts of Nigeria.
[38] Finding a suitable place to live in the proposed IFA locations is also an additional risk factor for the minor claimant due to her mobility impairments. The claimants provided examples of the dangers on the road, climbing stairs, and even how boarding a bus may lead to breaking the fragile bones of the minor claimant, because of her XXXX condition. The principal claimant testified that specialized schools are needed for the minor to ensure for safety and to minimize the stigma of living with disability and no such facilities exist in either Port Harcourt or Ibadan.
[39] The claimants testified that there is no difference if they relocate to either of the IFA locations, because even in a big city as Lagos, it is very risky to move around with the minor claimant, considering her condition, and an IFA is neither safe, nor a solution. Any of the additional treatments for the minor claimant will not be accessible in either of the IFA locations.
[40] The objective evidence from the NDP and the medical documentation about the minor claimant’s condition support the necessity for the claimants to look anywhere outside Nigeria for additional resources of help and future treatments for the minor claimant. Any of these would not have been possible for the minor in any part of the country, as well as in the IFA locations.
[41] Specifically, p. 121 of Item 5.12 speaks about lack of access to intervention services in response to impairments. Additionally, being a woman in Nigeria is an increased factor of risk for the claimants, according to p. 143-144. Further, as seen in Item 1.25[24] and its S. 5.2 and S. 5.3 – the risk is no different in any cities, including the proposed IFAs. Another reference from the NDP, in Item 1.9[25] elaborates more on the access to healthcare services and medications, where XXXX, or even bone conditions, are not mentioned as diagnosis that is treated in Nigeria, and no accessible medications for such condition are listed there.
[42] Based on the totality of the above and the objective evidence on Nigeria on the minor claimant’s rare medical condition, which is also visibly distinguished by other people in Nigeria, it appears that the minor will be subjected to the same mistreatment by the society all throughout the country. Thus, she and her mother (the principal claimant) would face the same risk and persecution throughout Nigeria. Accordingly, the panel finds that no viable internal flight alternative exists for both claimants in Nigeria.
CONCLUSION
[43] For all the foregoing reasons the panel finds that the principal and the minor claimant are Convention refugees pursuant to section 96 of the IRPA and thus, accepts their claims.
——— REASONS CONCLUDED ———
[1] Immigration and Refugee Protection Act, SC 2001, c. 27, as amended.
[2] Exhibits 2.1 and 2.2: Basis of Claim Forms.
[3] Exhibit 1: Claims Referral Information – CBSA/IRCC.
[4] Exhibit 5.2: Personal Documents of the Claimants (D-3/D-4).
[5] Exhibits 5.1 – 5.4: Personal Disclosures of the Claimants (D-1 – D-23).
[6] Exhibit 5.1`: Personal Documents of the Claimants (Photographs).
[7] Exhibit 5.2: Personal Documents of the Claimants, Letter of Support from Minor’s father (D-4) and mother (D-5).
[8] Exhibit 5.4: Personal Documents of the Claimants, OI Facebook Group Postes (D-15 and D-16).
[9] Exhibit 5.2: Personal Documents of the Claimants, Medical Reports and Photographs (D-11 and D-12).
[10] Exhibit 5.3: Personal Documents of the Claimants, Letter of Support from Claimants’ Neighbor (D-13).
[11] Exhibit 5.2: Personal Documents of the Claimants, Letter of Support from Principal Claimant’s Sister (D-6).
[12] Exhibit 3: National Documentation Package for Nigeria – November 30, 2023 Version.
[13] National Documentation Package, Nigeria, 30 November 2023, Tab 1.27: Mental health services available; treatment of persons with mental illness by society and by the authorities; state protection, including recourse and complaints mechanisms available in cases of abuse; public health care availability particularly in Abuja, Lagos, Ibadan, Port Harcourt (2018–November 2022). Immigration and Refugee Board of Canada. 7 November 2022. NGA200993.E.
[14] Ibid
[15] Ibid
[16] National Documentation Package, Nigeria, 30 November 2023, Tab 1.13: EASO Country of Origin Information Report. Nigeria: Targeting of Individuals. European Union. European Asylum Support Office. November 2018.
[17] National Documentation Package, Nigeria, 30 November 2023, Tab 2.11: Nigeria: People with Mental Health Conditions Chained, Abused. Human Rights Watch. 11 November 2019.
[18] National Documentation Package, Nigeria, 30 November 2023, Tab 5.12: Nigeria: Children and young people with disabilities. Asylum Research Centre; Asylos Research for Asylum. October 2021.
[19] National Documentation Package, Nigeria, 30 November 2023, Tab 2.11: Nigeria: People with Mental Health Conditions Chained, Abused. Human Rights Watch. 11 November 2019.
[20] National Documentation Package, Nigeria, 30 November 2023, Tab 1.27: Mental health services available; treatment of persons with mental illness by society and by the authorities; state protection, including recourse and complaints mechanisms available in cases of abuse; public health care availability particularly in Abuja, Lagos, Ibadan, Port Harcourt (2018–November 2022). Immigration and Refugee Board of Canada. 7 November 2022. NGA200993. E.
[21] Ibid
[22] National Documentation Package, Nigeria, 30 November 2023, Tab 7.51: OSAC Country Security Report. Nigeria. United States. Overseas Security Advisory Council. 21 December 2021.
[23] National Documentation Package, Nigeria, 30 November 2023, Tab 5.18: Violence Against Persons (Prohibition) Act, 2015. Nigeria. 2015.
[24] National Documentation Package, Nigeria, 30 November 2023, Tab 1.25: Nigeria Demographic and Health Survey 2018. Federal Republic of Nigeria. National Population Commission; ICF. Demographic and Health Surveys Program. October 2019.
[25] National Documentation Package, Nigeria, 30 November 2023, Tab 1.9: Country Policy and Information Note. Nigeria: Medical treatment and healthcare. Version 4.0. United Kingdom. Home Office. December 2021.