2024 RLLR 110

Citation: 2024 RLLR 110
Tribunal: Refugee Protection Division
Date of Decision: January 3, 2024
Panel: D. Marcovitch
Counsel for the Claimant(s): Cheryl Robinson
Country: Nigeria
RPD Number: TB7-24023
Associated RPD Number(s): TB7-24024, TB7-24025, TB7-24026, TB7-24027
ATIP Number: A-2025-00611
ATIP Pages: 1–15

REASONS FOR DECISION

[1] This is the decision of the Refugee Protection Division (RPD) in the claims of XXXX (the “principal claimant” or “PC”), her adult daughter, XXXX (the “associated claimant” or “AC”) and the minor children of the PC (as of the last hearing date), XXXX (presently aged 19), XXXX (presently aged 17) and XXXX (presently aged 15) (the “minor claimants”) (collectively, the “claimants”) as citizens of Nigeria. The claimants are seeking refugee protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (the IRPA).[1]

[2] In accordance with section 167(2) of the IRPA, the Refugee Protection Division (RPD) appointed XXXX as the independent designated representative to the minor claimants for the purpose of this refugee claim, based on the initial Minister’s Intervention alleging exclusion under lF(b) of the Convention for Child Abduction. This exclusion ground was subsequently withdrawn by the Minister, however, given the issue that the father of the children had written to the Minister alleging abduction, it was still deemed to be necessary to have the independent designated representative present evidence on behalf of the minor claimants. These claims were heard jointly pursuant to Rule 55 of the Refugee Protection Division Rules.[2]

[3] I have reviewed and applied the Chairperson’s Guideline 4 on Gender Considerations in Proceedings Before the Immigration and Refugee Board.[3] I also took into consideration the Chairperson’s Guideline 3: Proceedings Involving Minors at the Immigration and Refugee Board.[4]

[4] With respect to the AC, I have also reviewed and applied Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression and Sexual Characteristics (“SOGIESC Guidelines”).

[5] As noted above, the Minister intervened in person, based on credibility concerns regarding the PC’s allegations.[5]

[6] I also note that this matter was heard De Novo and that I had not listened to any aspect of the previous hearings held before a different Member.

ALLEGATIONS

[7] The claimants’ allegations are set out in the principal claimant’s Basis of Claim (BOC) form narrative.[6] Additionally, the AC submitted her own BOC narrative and amendments.

[8] In short, the principal claimant alleges that she and her children are victims of domestic abuse from her ex-common-law husband over the course of 15 years. She alleges she sought protection from her country and attempted to remove herself from the abusive relationship. However, protection was not forthcoming, and her husband was able to track her down when she relocated to Ibadan.

[9] The claimants fear if they returned to Nigeria, they would be killed or harmed by the principal claimant’s husband.

[10] In addition to the joint allegations with her family, the AC alleges that her sexual orientation as a member of the LGBTQI+ community, which she was only able to explore once she got to Canada, would lead to persecution on a forward-looking basis should she return to Nigeria. The AC also alleges that in addition to experiencing physical abuse from her father, he also sexually assaulted her. The PC witnessed one of these incidents.

DETERMINATION

[11] I find that the claimants are Convention Refugees pursuant to section 96 of the IRPA. I find that the PC has established a serious possibility of persecution by reason of her membership in a particular social group, specifically women subject to domestic abuse. I find that the minor claimants also face a serious possibility of persecution on the basis of their membership in the particular social group of family of the PC. I also find that the AC faces a serious possibility of persecution on the basis of her membership in the particular social group of LGBTQI+ persons facing harm in Nigeria.

ANALYSIS

Identity

[12] I find that the claimants’ identities have been established, on a balance of probabilities, by virtue of the true copies of the claimants’ Nigerian passports found at Exhibit 1.[7]

Nexus

[13] I find that the claimants have established a nexus to section 96 of the IRPA as the persecution they fear is linked to one of the five Convention grounds, specifically membership in a particular social group. Therefore, the claims have been assessed under section 96 of the IRPA.

Credibility

[14] Testimony provided under oath is presumed to be truthful unless there is a reason to doubt its truthfulness. While I did note several inconsistencies regarding dates and addresses between the PC’s initial entry to Canada documentation and the addresses noted in her USA visa application, I find that these issues were reasonably explained by one of the minor claimants, XXXX who was about 13 years old, doing the translating for her mother. I note that this evidence is bolstered given that the interpreters declaration has not been signed on any of the claimants’ Schedule A, Schedule 12 or Generic Application Forms. Further, I take note of the XXXX difficulties that the PC has been experiencing, as noted by Dr. XXXX[8], and by medical professionals within several community health centres, such as XXXX[9], XXXX[10], XXXX[11] and XXXX[12]. These reports note and discuss the many XXXX difficulties that the PC was going through, including XXXX as a result of the assaults and subsequent XXXX and medications she is using to control those issues. I find on a balance of probabilities that the XXXX state of the PC, which has been borne out by many medical and XXXX professionals, also explains the PC’s difficulties in maintaining a consistent chronology and timeline of events. However, I do not accept that the PC has provided sufficient credible or corroborative evidence that establishes that the Ogboni cult was associated with her husband or that they were acting on his request.

[15] So, while those issues do give me pause, I find that the remainder of the PC’s testimony and that of the AC, plus the many supporting letters and one medical report from Nigeria, corroborate the claimants’ allegations of abuse suffered at the hands of the PC’s ex-common-law spouse, XXXX I also accept that in 2014 the PC was beaten by her ex-partner and that she went to the police and to the hospital in respect of that incident. I also accept the PC’s evidence that while she went to get help from the police and the police extract indicates that the case would be referred for further investigation, that no further or adequate investigation or protection was provided to the PC. While it is somewhat problematic that the PC had no records from her 2016 encounter seeking help from the police, I find that it is not necessary in light of the credible evidence regarding hospitalization and her attempt to get help from the police in 2014. It is not necessary for a claimant to continue to approach the state when they have a reasonable basis to believe it won’t be forthcoming, or could lead to further persecution.

[16] I also take note of the medical reports where the minor claimants were interviewed by XXXX professionals, where they described witnessing their father’s violent and abusive behaviour. I also note that the none of the children indicate that they wish to have an ongoing relationship with him. I find on a balance of probabilities that the minor claimants have also credibly established that they face a forward-looking risk from their father.

[17] I also take note that the PC took steps in the Ontario Court of Justice to get a sole custody order for her children and prevent her ex-partner from interfering in her decision making for the children. I further take note that the PC contacted the police in Canada to try and find a way to block her ex-partner from entering Canada after he found her phone number here and threatened her. I find that this is further evidence of the PC’s fear of her ex-partner. Considering the totality of the evidence, I find on a balance of probabilities, that the PC has credibly established her allegations and therefore her subjective fear of return to Nigeria.

[18] In considering the AC’s testimony, I find that she was spontaneous, sincere, and consistent with the allegations in her Basis of Claim narrative, as amended. She testified in a straightforward and detailed manner, and there were no inconsistencies that arose or were not satisfactorily explained. I accept that the AC experienced abuse at the hands of her father and that she fears him. I have also considered the AC’s corroborative evidence of her LGBTQI+ relationship with XXXX which includes supporting letters from XXXX and friends who witnessed the beginning of their relationship. I have also considered the photographs and text messages that were submitted to establish their relationship. I note that the texts and photographs began at least XXXX months before the first hearing date before me and about XXXX months before this matter was ordered to be re-determined. I therefore find on a balance of probabilities that the AC has genuinely established that she is a member of the LGBTQI+ community and that she has established her subjective fear of return to Nigeria.

Well-Founded Fear of Persecution

[19] To establish the claimants’ status as a Convention Refugees, the claimants had to show that there was a serious possibility that they would be persecuted if removed to Nigeria. I find that the evidence presented in support of their allegations does establish a serious possibility of persecution.

[20] According to the objective evidence in the National Documentation Package (NDP) for Nigeria, intimate partner violence is “prevalent” or “widespread” in Nigeria. Item 1.8 states that domestic violence occurs “across all geographic locations, socioeconomic levels, and religious and ethnic groups, and that many consider it socially acceptable”.[13] Although a lack of reliable data and under-reporting make it difficult to measure the rates of domestic violence in Nigeria, a recent survey found that 54 percent of Nigerians have suffered from a form of domestic violence or know someone that has experienced domestic violence in their homes. Australia’s Department of Foreign Affairs and Trade (DFAT) similarly estimates that between 30 and 50 percent of women have experienced domestic violence in Nigeria.[14] According to a source cited in a Response to Information Request on domestic violence in Nigeria, allegations of domestic violence in Nigeria are often not taken seriously due to prevailing societal attitudes:

Societal attitudes towards domestic violence are deeply rooted in the unequal power relations that exist between men and women, especially in traditional African societies like Nigeria. The blame for domestic violence is often laid at the doorstep of the woman as being solely responsible for acts leading to violence within the confines of marriage or intimate relationships in both urban and rural Nigeria. In a traditional patriarchal society like Nigeria, society’s assertion as to the superiority of the man to the woman still holds sway. Therefore, acts of violence perpetrated by the men to their wives or intimate partners are often not considered rights violations.[15]

[21] Item 1.8 further states that “families of women subjected to domestic violence will often refuse them support and pressure them to stay with abusive husbands”.

[22] The DFAT report at item 1.8 also indicates that “despite … constitutional protections, human rights observers report sex-based discrimination and violence remains a significant risk for women and girls in Nigeria”. This source also states that Nigeria ranked 128 out of 153 countries “in terms of women’s economic participation and opportunity, educational attainment, political empowerment, and health and survival”.[16] There is no law to protection against gender-based discrimination in hiring or while employed, or to require equal renumeration for all genders. Overall, the DFAT report categorizes Nigeria as “a patriarchal society in many respects”.[17]

[23] The objective evidence indicates that domestic and family violence is prevalent and widespread in Nigeria. Based on the PC’s gender, her and her children’s experiences of family violence, and the prevalence of domestic violence generally, I find that the claimants have demonstrated a subjective fear of persecution in Nigeria that is objectively well-founded.

[24] With respect to the AC, I find on a balance of probabilities that she has established a well-founded fear of persecution based on her sexual orientation.

[25] Item 1.8 of the NDP (Australia’s Department of Foreign Affairs and Trade report) states that a number of federal and state laws criminalise same-sex sexual acts. Section 214 of the 1990 Criminal Code criminalizes “carnal knowledge against the order of nature for men and women, carrying a maximum penalty of 14 years imprisonment.” Other items of the NDP such as Items 2.1, 2.6, 2.8, 2.9, 6.1, 6.2, 6.3, 6.4, 6.7, 6.8, and 6.12 and 6.14, all provide the following information corroborating the AC’s subjective fear in Nigeria. Attitudes towards sexual minorities in Nigeria remain consistently negative. Sexual minorities are persecuted throughout Nigeria by both authorities and members of the society. Police may investigate or pursue someone for same-sex activity if the person is caught in the act, or if the police find implicating written materials or photographs on their phone. Item 6.12 also indicates that LGBTI persons reported increased harassment, threats, discrimination, and incidences of violence against them based on their real or perceived sexual orientation or gender identity.

[26] People with diverse sexual orientation in Nigeria face eviction their homes, discrimination by health care providers, loss of income, and risks of mob violence, extortion, and family rejection. Same-sex relationships and activities in groups that support LGBTQI+ individuals are prohibited throughout the country and punishable by law. I therefore find that the AC’s subjective fear is objectively well-founded.

State Protection

[27] The responsibility to provide international (or surrogate) protection only becomes engaged when national or state protection is unavailable to a claimant. Absent situations where there has been a complete breakdown of the state apparatus, the general presumption is that a state can protect its citizens. This presumption may be rebutted if a claimant provides clear and convincing evidence of the state’s inability to provide protection. A claimant must approach the state for protection if it might reasonably be forthcoming; however, they should not risk their life seeking ineffective protection of a state merely to demonstrate that ineffectiveness.[18]

[28] The objective evidence in the NDP indicates that while the government of Nigeria has made strides when it comes to combating domestic violence, there are still problems in accessing protection. For example, police have been known to send victims of domestic violence back home, as domestic violence is sometimes seen as a family issue and not a criminal one.

[29] There are numerous references in the NDP that police are reluctant to intervene in family matters and are frequently biased in their treatment of female victims cited in items 1.4, 1.34, and 5.28. Although various legal instruments have been enacted to address domestic violence, including Nigeria’s Violence against Persons Prohibition Act, the objective evidence indicates that there is “poor or no implementation of the legal instruments and measures available” and that implementation of the laws on domestic violence is a “serious issue.” Sources further indicate that despite the enactment of legislation, the rates of domestic and sexual violence continue to “spike.”

[30] In view of this evidence, I find that state protection for family violence in Nigeria is inadequate. While the state may have made efforts to address family violence, these efforts have not been effective on the operational level. I therefore find that the presumption of state protection has been rebutted in this case.

[31] With respect to state protection for the AC, as a person belonging to the LGBTQI+ community, the state would be a forward-looking agent of persecution as same-sex relationships are illegal in Nigeria. Further, as noted in Section 8.6.4 of the SOGIESC guideline, the existence of laws criminalizing non-confirming sexual orientations, sexual behaviours, gender identities, or expressions or sex characteristics, and the enforcement of these laws by the state may be evidence that state protection is inadequate. As same-sex sexual activity is criminalized in Nigeria, and since homophobic violence continues with impunity, I find that state protection for the AC would not be forthcoming as a member of the LGBTQI+ community should she try to seek it upon return to Nigeria. It is therefore clear on a balance of probabilities that state protection would not be reasonably forthcoming to the AC. Accordingly, I find that the presumption of state protection has been rebutted with clear and convincing evidence.

Internal Flight Alternative

[32] A determinative issue in this claim is an internal flight alternative (IFA). I must be satisfied on a balance of probabilities that (1) the claimants would not be subject personally to a danger of torture, or to a risk of life or a risk of cruel and unusual punishment or face a serious possibility of persecution in the proposed IFA and (2) 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 to seek refuge there. Port Harcourt and Abuja were proposed as a potential IFA’s during the hearing.

First Prong

[33] The objective evidence indicates that Nigeria is a large country with an area of over 900,000 square kilometres in 36 states and a population of over 230.8 million people. Nigerians have the right to reside in any part of the country. The documentation indicates that there are several very large, multilingual, multiethnic cities in central Nigeria, such as Port Harcourt or Abuja, where persons fleeing non-state actors may be able to safely establish themselves based on their own particular circumstances.[19] The objective evidence also indicates that across Nigeria, approximately 50 percent of the population is Muslim and 50 percent is Christian, and they reside in approximately equal numbers in central Nigeria.[20] Further, English is the official language in Nigeria.[21]

[34] The claimant testified that she fears that her husband can locate her throughout Nigeria, including in the proposed IFA’s of Port Harcourt and Abuja. She testified that her husband is a clearing agent related to imports/exports. I find that the alleged agent of harm in this case is a non-state actor. The PC’s ex-partner continues to be motivated to locate the claimant and has harassed her relatives in Nigeria about getting the claimants to return to Nigeria. The PC also testified that that her husband and the Ogboni might use black magic powers to locate them or use school mailing address/registration records to find them. In Chairperson’s Guideline 4 it is stated in sections 11.6.3 to 11.6.5 that the safety of an IFA is dependent on the claimant’s personal profile. Specifically, I have considered the cycle of violence and coercive control when assessing the agent of harm’s motivation and ability. I have also considered that the PC’s ex-partner wrote a ‘red letter’ to the Minister alleging child abduction which I find, on a balance of probabilities, shows that the claimants’ agent of persecution has continued to try and control the claimants and shows continued interest in finding the claimants. Even if I were to find that the PC’s ex partner does not have the personal means to find the claimants, I find that child custody issues would necessarily bring the PC and her ex-partner into contact and create a legal means to determine her and the minor claimants’ location and therefore render any IFA unreasonable.

[35] Therefore, I find on a balance of probabilities, that the claimants have established that the agent of harm has the means and motivation to track the claimants anywhere in Nigeria.

[36] With respect to the AC and the availability of an IFA, I note that the anti-LGBTQI+ laws described above are uniformly applicable across the country, which means that there is nowhere the AC could safely live in Nigeria without hiding her sexual orientation. Considering the SOGIESC Guidelines, section 9.8.7.1, it is well established in law that an IFA is not viable if a SOGIESC individual must conceal their SOGIESC in order to live in that location. As such, I find that with respect to the AC, that the IFA test fails at the first prong of the test and the second prong will not be considered for the AC.

Second Prong

[37] The objective evidence regarding the second prong of the IFA test supports a finding that it is not objectively reasonable in all of the circumstances, including the claimants’ particular circumstances for them to relocate to either of the proposed IFA’s. The PC is a 44-year old woman and single mother who did not complete XXXX The claimant and her agent of persecution are not officially married, but they do have 4 children together (two of which are presently minors). The PC had tried to utilize police protection, which did not result in adequate protection. She additionally tried to relocate without success. I must also consider the cycle of violence, lack of additional support and the PC’s vulnerable state in regard to her diagnosis of XXXX and XXXX as well as the professional medical opinion regarding the effect of having to return to Nigeria might have on her XXXX

[38] The objective evidence does indicate that there are challenges for single women, and it is easier for a woman to live alone without male support if she is educated.[22] However, the evidence also indicates that single mothers are stigmatized and discriminated against when attempting to access housing and employment.[23] In the circumstances applicable to this matter, the PC is not well educated, but she did have significant experience XXXX for her business. Furthermore, the PC would also face the ongoing fear that her ex-partner would seek custody or visitation of the two minor claimants, who had also witnessed verbal and physical abuse from their father.

Housing

[39] Irrespective of the PC’s ex-partner’s motivation and ability to locate her in Nigeria, I also find that she would not be able to relocate within Nigeria as a woman who would be living alone. The objective evidence indicates that relocation within Nigeria poses significant challenges and risks for single women. According to one source:

single women who relocate can face “stigmatization [or] labelling, insecurity, economic hardship, family problems, trauma, among [other issues],” therefore making it “very difficult” for them to “settle down successfully”.[24]

[40] Compounding the above, reports indicate that both a housing shortage and pervasive gender-based discrimination make it exceptionally difficult for single women to access safe housing in Nigeria. Sources indicate that a prejudice exists against single women and their ability to pay rent and that cultural and religious beliefs encourage the policing of the activities of women. According to a source in a report by the IRB,[25] the housing sector in Nigeria is in “complete crisis”, and that there is no national housing action or strategy implemented by the government.

Employment

[41] Further, the same RIR reveals that single women are less likely to be able to obtain employment if they relocate. Although Nigerian law provides for formal equality, sources indicate that single women experience discrimination when they attempt to enter the workforce. According to the RIR, women may “find it harder on average to access formal employment than men”, and that women “may be pushed into informal labour involvements especially where they have neither relevant skills nor education”. Sources indicate that women have a much better chance of obtaining employment when they relocate if they are “self-employed or businesspeople with significant financial support”, and that “many organizations in Nigeria often use politics, favouritism, nepotism, and ethnicity when it comes to employment or training opportunities”, which makes accessing employment and training very difficult for female headed households.[26]

[42] Relatedly, this RIR notes that there are “no existing or any available social support systems or any benefits” for female heads of households in Nigeria. This report notes that some women may be able to rely on friends and family but should someone have no support structure to tum to, they are left on their own. Although public services, such as health, education, transportation, and childcare services exist, this is only the case if “they are able to pay for these services”.[27]

Child Custody

[43] The Matrimonial Causes Act indicates that “the court shall regard the interests of those children as the paramount consideration”. However, according to the Nigerian lawyer, “[m]any women are denied custody and access to their children” upon divorce.[28]

[44] The consequences of divorce are “more severe” for women than for men. Women are economically worse off after marriages are dissolved. Seeking divorce can render women more likely to experience domestic violence, or, if this was already a feature of the marriage, “more extreme” violence. Domestic violence may come not only from her husbands, but also from in-laws who may view her wish to dissolve the marriage or partnership as an insult to their family.[29]

Access to Public Services

[45] Whether female heads of household (FHH) can access public services, including the situation and treatment of single women, including health, education, public transportation, childcare services and social assistance in Abuja or Port Harcourt, this is the case only if “they are able to pay for these services,” which are not free, and no subsidy is available to this group. There are “no formally established” government support programs for FHHs, and that the “availability of income/money may help as [FHHs] would likely depend on private sources for health, education, transportation and even childcare since public services, where available in these areas, are grossly inadequate, unreliable, and often not particularly attuned to the needs of women and marginal members of the society”

Second Prong Conclusion

[46] In this case, the PC testified that she would have to live on her own as a single woman in Nigeria should she return. She testified that she has no one to tum to for financial support. Given that pervasive gender discrimination that exists across Nigeria, as well as the exceptional difficulties and risks faced by single women/mothers who relocate without male support, having to relocate elsewhere in Nigeria would present conditions that would jeopardize the life and safety of the claimants.

[47] The PC is in a common-law relationship but would be a single mother with no family support in the proposed IFA’s and it would be unduly harsh as she would more likely than not, on a balance of probabilities, be destitute and unable to obtain even the basic necessities such as housing, food, and employment in the proposed IFA, including that she would likely need to participate in a child custody proceeding or litigate visitation rights. Therefore, the agent of harm could use his right of parental access to obtain contact information and continue the abuse.

[48] Based on the totality of the evidence, I find that it is not objectively reasonable in all of the circumstances including the claimants’ particular circumstances to relocate, therefore, no viable IFA exists for them.

CONCLUSION

[49] Having considered all of the evidence, I find that the PC faces a serious possibility of persecution in Nigeria by reason of her membership in a particular social group, specifically women subject to domestic abuse and that the minor claimants, by reason of their particular social group as family members of the PC also face a serious possibility of persecution in Nigeria. Their claims are therefore accepted.

[50] With respect to the AC, I find that she faces a serious possibility of persecution in Nigeria on the grounds of membership in a particular social group as a member of the LGBTQI+ community and I find her to be a Convention refugee. The claim of the AC is therefore accepted.

——— REASONS CONCLUDED ———

[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.

[2] Refugee Protection Division Rules (SOR/2012-256), Rule 55.

[3] Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board, October 31, 2023.

[4] Chairperson’s Guideline 3: Proceedings Involving Minors at the Immigration and Refugee Board, October 31, 2023.

[5] Exhibits 11, 19 and 30

[6] Exhibit 2 – Basis of Claim Form.

[7] Exhibit I – Claim Referral from CBSA/IRCC.

[8] Exhibit 8

[9] Exhibits 9, 13, 18, 22 and 25

[10] Exhibit 12

[11] Exhibits 14, 16

[12] Exhibit 17

[13] Exhibit 3 – National Documentation Package, Nigeria, 31 May 2023, tab 1.8.

[14] Exhibit 3 – National Documentation Package, Nigeria, 31 May 2023, tab 5.3.

[15] Ibid.

[16] Exhibit 3 – National Documentation Package, Nigeria, 31 May 2023, tab 1.8.

[17] Ibid.

[18] Canada (Attorney General) v. Ward, 1993 CanLII 105 (SCC), [1993] 2 SCR 689.

[19] Exhibit 3, tab 1.6.

[20] Exhibit 3, tab 12.1.

[21] Exhibit 3, tab 1.6.

[22] Exhibit 3, tab 5.9.

[23] Ibid.

[24] Ibid.

[25] Ibid.

[26] Ibid.

[27] Ibid.

[28] Exhibit 3, tab 5.5.

[29] Ibid.