2023 RLLR 222
Citation: 2023 RLLR 222
Tribunal: Refugee Protection Division
Date of Decision: October 24, 2023
Panel: Sukhpal Sangha
Counsel for the Claimant(s): Richard Odeleye
Country: Nigeria
RPD Number: VC3-06900
Associated RPD Number(s): N/A
ATIP Number: A-2024-01133
ATIP Pages: N/A
DECISION
[1] MEMBER: Decision of VC3-06900. This is the decision of the Refugee Protection Division in the claim of XXXX XXXX XXXX, a citizen of Nigeria who is seeking refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act, or the IRPA
[2] During the hearing and in rendering my reasons, I have considered and applied the Chairperson’s Guideline 9: “Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics”, SOGIESC guidelines.
DETERMINATION and Nexus
[3] I find that pursuant to section 96 of the Act, the claimant is a Convention refugee as he has a well-founded fear of persecution on account of his membership in a particular social group due to his sexual orientation as a gay man. I considered the claimant’s Basis of Claim form, the testimony heard today, the evidence submitted prior to the hearing, as well as the relevant and most recent country condition information available.
ALLEGATIONS
[4] The claimant’s allegations were set out in his written Basis of Claim form and testimony. So, I will summarize them briefly here. The claimant was 14 years old when he first realized he was attracted to both females and males. He began dating a fellow classmate in secret named XXXX XXXX (ph) at the age of 16. They would meet up in secret to have sexual intercourse two (2) to three (3) times a month, meeting in empty classrooms, parking XXXX’s car on abandoned roads, or going to unfinished buildings in deserted areas. In 2018, XXXX left to pursue his education in the United Kingdom. The claimant and his relationship with XXXX gradually ended due to the long distance.
[5] In XXXX 2021, the claimant went to XXXX XXXX XXXX in Ilorin, Nigeria to continue his education. He met XXXX XXXX (ph) and they began to date. After they both obtained their diplomas they moved to Lagos, Nigeria and continued a sexual relationship secretly. XXXX was a hotel manager, and the claimant helped his father with his shop in Lagos. The claimant would meet XXXX at his house every weekend since XXXX lived alone. The claimant then received admission to the XXXX of Manitoba. XXXX was angry and stated he would miss the claimant. The claimant left on XXXX XXXX, 2022, through phone calls XXXX stated the claimant was not giving him enough attention and that he would find another partner.
[6] On XXXX XXXX XXXX 2023, the claimant received a call from his father, who was enraged. Four (4) police officers came to the house with XXXX who was beaten and handcuffed. The police had caught XXXX having sexual relations with another man in a hotel room in Lagos. They found the claimant’s name and photo on XXXX’s phone, his father then disconnected the call. The claimant called back and was told by his father to never call, he disgraced the family, and he is disowned. The claimant does not know what happened to XXXX and is unable to contact him to this day.
[7] The claimant’s late mother called the claimant later and told him his father was angry. After the police left, anti-gay people gathered in front of their house and wanted to burn it down. However, a pastor who lived nearby prevented that from happening. His sister, XXXX (ph) XXXX, was angry when after talking to his mother, agreed to pay his school fees as his father no longer wanted to. His father labelled him as an abnormal person. The claimant began to be affected negatively, physically, emotionally and academically. On XXXX XXXX XXXX 2023, his late mother called, stating his father’s shop had burned down with other shops. His sister told them she will no longer pay for school fees as she has to help their father out financially. The claimant’s mother passed away in XXXX 2023.
Identity
[8] I find that the claimant’s personal identity and identity as a national of Nigeria is established by the testimony of the claimant and the supporting documentation filed, including his passport, which can be found at Exhibit 1.
Credibility
[9] When a claimant swears to the truth of their allegations, this creates a presumption that those allegations are true unless there is a reason to doubt their truthfulness. In the present claim, I find the claimant did testify in a sufficiently credible manner today about his sexual orientation, when he first realised he was attracted to men, his relationships, what it means to be gay, how he secretly kept his relationship secret in Nigeria. He testified in a straightforward manner, and there were no material inconsistencies in his testimonies or contradictions between his testimony and other evidence before me, which has not been satisfactorily explained. Furthermore, that the claimant testified about being openly gay and being able to express himself, about his current relationship, he is able to date openly and identify that is his boyfriend.
[10] I have reviewed his written narrative and find that it was consistent with his oral testimony provided today. He also submitted additional documentary evidence in support of his claim. These include a letter from a friend in Nigeria, a letter from his sister, and a letter from the pastor who intervened during the XXXX XXXX, 2023, incident at his parents’ house. I find that these documents support his allegations about a sexual orientation and give full weight. And so, based on his testimony, which I find was credible, based on the additional documents that were submitted, I do not believe he exaggerated his story.
[11] I find the claimant has established on a balance of probabilities the central allegation of his claim. Importantly, I find the claimant has established on a balance of probabilities that he is a gay man.
Delay in Claiming
[12] I noted that he did not ask for asylum in Canada when he first came in XXXX 2022 and waited until XXXX 2023. The claimant stated his intention when he first came to Canada was to go to school, then get a work permit and then a permanent resident card. He never knew that his father or anyone in Nigeria would find out he was gay. I find that this behaviour does not undermine his subjective fear as it relates to his credibility. Lastly, he had he had valid temporary status as a student during the delay, and his fear did not crystallise until his father found out.
Well-Founded Fear of Persecution in Nigeria
[13] Item 6.12 of the National Documentation Package for Nigeria states that same-sex sexual orientation and groups that support LGBTQ persons are criminalised in Nigeria. The further states that the police have been reported to arrest and detain and commit other abuses against LGBTQ persons, it is noted that LGBTQ+ persons may also face societal discrimination and isolation, including violence, blackmail, and extortion, and that these threats may stem from non-state actors, including family and community members. Item 6.7 indicates that societal perceptions of homosexuality are founded on the opinion that homosexuality is unnatural, sinful, and an abomination, and that federal criminal law deemed same-sex activity punishable by up to 14 years in prison.
[14] Therefore, I find that the claimant faces a well-founded fear of persecution at the hands of the state as well as from the community at large due to his sexual orientation in Nigeria.
State Protection
[15] There is clear and convincing evidence that state protection will not be reasonably forthcoming in this case to the claimant as the particular agent of harm is the Nigerian government and its representatives. It would be objectively unreasonable for the claimant to seek the protection of the state in light of his particular circumstances and the objective evidence cited before. The claimant has rebutted the presumption of state protection in this case.
Internal Flight Alternative or IFA
[16] As the Nigerian government is the agent of persecution and is in effective control of its territory, I find that there is no location in Nigeria where the claimant would not face a serious possibility of persecution. As a result, I find that there is no viable internal flight alternative for the claimant.
CONCLUSION
[17] For these reasons, I find that you are a Convention refugee and I accept your claim.
——— REASONS CONCLUDED ———