2024 RLLR 112

Citation: 2024 RLLR 112
Tribunal: Refugee Protection Division
Date of Decision: February 23, 2024
Panel: Zoe Knes-Gray
Counsel for the Claimant(s): Ariel M Hollander
Country: Nigeria
RPD Number: TB9-31207
Associated RPD Number(s): TB9-31208
ATIP Number: A-2025-00611
ATIP Pages: 30–40

REASONS FOR DECISION

[1] XXXX the principal claimant, and her daughter XXXX the minor claimant, claim to be citizens of Nigeria (principal claimant) and the United States (minor claimant) and seek refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1] The Minister intervened in writing on the issue of credibility.[2]

ALLEGATIONS

[2] The specifics of the claim are set out in the claimants’ Basis of Claim forms.[3] In summary, the principal claimant alleges that her former husband’s family has targeted her and her daughter in an effort to circumcise her daughter, which the claimant is opposed to. The claimant also alleges that she has been physically abused by her former husband.

DETERMINATION

[3] The panel finds the principal claimant to be a Convention refugee under s.96 of the IRPA. The test under s.96 is whether there is a serious possibility of persecution should the claimant return to Nigeria. The panel finds the claimant has met this test and established that she faces a serious possibility of persecution in Nigeria. The minor claimant is a citizen of the United States and has not made any allegations of persecution or harm against the US. The panel therefore finds that the minor claimant has not established a serious possibility of persecution on a Convention ground, or that they would personally be subjected, on a balance of probabilities, to a danger of torture, or a risk to life or of cruel and unusual treatment or punishment upon return to the United States.

ANALYSIS

Identity

[4] The claimants’ identities have been established through testimony and through documents filed, including copies of the principal claimant’s passport issued by the government of Nigeria, and the minor claimant’s social security card and birth certificate issued by the United States government.[4] The panel is satisfied on a balance of probabilities of the claimants’ personal and national identities.

Nexus

[5] The panel finds that there is a nexus between the harms the claimant fears and a Convention ground, namely her membership in a particular social group as a woman facing gender-related persecution. The panel has therefore assessed this claim under s.96. The test under s.96 is whether there is a serious possibility of persecution should the claimant return to Nigeria. The panel has also applied the Chairperson’s Guideline 4 on Gender Considerations in Proceedings Before the Immigration and Refugee Board.

Credibility

[6] When a claimant affirms to tell the truth, this creates a presumption of truthfulness unless there is evidence to the contrary.

[7] The principal claimant testified about her difficulties with her former husband’s family in Nigeria. She explained that she is against circumcision for her daughter and that his family will not accept this. The claimant indicated that her husband had received threatening phone calls as recently as February 2021 and that she believes these calls had to do with his family. She testified that she believes his family would harm her in Nigeria and that she would be powerless against them.

[8] The claimant also spoke in detail about the abuse she experienced from her former husband. She explained that the abuse began in 2018 after she and her husband arrived in Canada. The claimant testified about incidents of physical violence and spoke about how her husband would control her, including refusing to allow her to attend school or work. The claimant spoke of occasions where he would physically prevent her from leaving the house, and would call her supervisor to say that she could not come into work. The claimant testified about an assault she experienced in XXXX 2023 where she broke her XXXX leading her to call the police. She explained that she was able to obtain a restraining order against him and has not had contact with him since.

[9] The Minister intervened in writing and raised some credibility concerns, including the following[5]:

  • The claimant stated that the relationship between her and her husband had broken down (that he left the family in XXXX 2020) but included him in her application for humanitarian and compassionate grounds permanent residency stream on XXXX 2021
    • The claimant explained that she and her husband reconciled for a period of time in 2021, during which time she submitted her PR application. They were back together at the time of the application.
  • The claimant’s ex-husband submitted TRV applications in XXXX 2016 from Malaysia, and the claimant had previously indicated he submitted these applications in XXXX 2016 from Singapore.
    • The claimant explained that this was a mix up of information. She was in the US at the time he submitted these applications and wasn’t aware when he submitted them. When the Minister’s intervention came in, she came to realize the correct information.
  • The claimant’s husband fabricated information in his BOC narrative, which was adopted by the claimant, as well as in their TRV applications.
    • The claimant explained that she did not initially know about the fabricated information in the TRV application. Her husband told her he would apply for their Canadian visas, that he was dealing with it himself, and did everything on her behalf. With respect to the false information in the original BOC narrative, the claimant explained that her husband was in control of their refugee claims and did not show her the documents. He told her he had to do everything, and dealt with everything himself. The claimant did not review the narrative but rather just signed the documents. She explained she signed them with a receptionist, and did not recall sitting down with a lawyer or interpreter to go over the contents of the narrative.

[10] The panel accepts the claimant’s explanations for the inconsistencies regarding her inclusion of her husband in her PR application, the date/location the TRV applications were submitted, and the discrepancies in the TRV application. The panel does not draw a negative inference from these inconsistencies. The panel finds the false information in the original narrative to be concerning, but finds that any negative credibility inferences following from these omissions are insufficient to overcome the other credible evidence in this claim. The panel notes that the claimant was in an abusive relationship with her ex-husband, and that in addition to physically abusing her, he had a history of controlling behaviour, including preventing her from attending work. The Chairperson’s Guideline 4 states that “Members should consider the impact of the cycle of violence and coercive control when evaluating credibility in cases involving gender considerations”. The panel accepts that the claimant’s husband would have similarly controlled their refugee application process and allowed the claimant limited access or insight into the details of her claim. The panel also notes that the claimant submitted a BOC amendment correcting this information. The panel finds these factors mitigate or lessen the weight that it assigns to these inconsistencies, and that they are ultimately insufficient to overcome the other credible evidence in the claim.

[11] Overall, the panel found the claimant to be a credible witness and believes what she has alleged on a balance of probabilities. Her testimony was spontaneous, detailed, and generally consistent with her basis of claim forms. There were no other significant inconsistencies or omissions going to the core of the claim. The claimant also provided documentary evidence to support her claim, including birth certificates and text messages from her ex-husband. The panel finds these documents to be credible and to support the claimant’s allegations.

[12] Based on the totality of the evidence, the panel finds that her ex-husband’s family seeks to inflict circumcision upon her minor daughter (which the claimant opposes), and that the claimant has been in an abusive relationship with her ex-husband. The panel therefore finds that the claimant has a subjective fear of persecution in Nigeria.

Well-Founded Fear of Persecution

[13] The claimant’s past experiences support the objective basis of her fear of harm on a forward-looking basis. The objective basis is further supported by documentary evidence in the National Documentation Package for Nigeria.

[14] The National Documentation Package for Nigeria reports that domestic violence is prevalent and widespread in Nigeria, with some sources indicating that domestic violence is increasing. Section 5.3 of the NDP reports that a discriminatory attitude is prevalent towards women in Nigeria, and that there are widely held notions that women should be subordinate to men, and that married women are the property of their husbands. This produces a power dynamic which justifies abusive behaviour perpetrated by a husband, including the use of violence. Physical violence and sexual assault are often perpetrated against women and children in households, as well as other forms of abuse such as financial disempowerment. A public opinion poll found that 78% of Nigerians surveyed “stated that there is an increasing prevalence of domestic violence across Nigeria” and that 54% of Nigerians have suffered a form of domestic violence or know someone that has experienced domestic violence in their homes. One in four ever-married women have reported experiencing at least one type of domestic violence such as physical, emotional or sexual violence by their husband or partner.[6]

[15] Sections 5.11 and 5.13 of the NDP indicate that various dehumanizing treatments, cleansing rituals and cleansing rites take place in Nigeria, and that rituals and beliefs differ depending on tribes and families. Examples include widows being forced by their inlaws to drink the water used to wash their late husband’s bodies, female circumcision, and cleansing rites for women before they enter marriage. Consequences of refusing to participate in such rituals lead to punishment, which may include physical harm.[7] Item 5.16 indicates that FGM occurs in Nigeria, with several sources indicating that fathers rather than mothers played a decisive role in this choice. Sources also reported cases where young girls were circumcised without parental consent at the instigation of grandmothers. A UN 2020 Annual Report on FGM stated that Nigeria has laws/policies that integrate prevention and response to FGM, but that “corresponding plans of action and guidelines are obsolete or lacking. There is no awareness of and/or limited access to these instruments by those in a position to implement them on the ground, rendering the policy implementation process ineffective. These gaps are corroborated with studies on medicalization and the health system’s response to FGM that showed limited awareness of policies and a lack of integration, documentation, and guidelines/tools to support health providers in offering prevention and response to girls and women with complications”.[8]

[16] The panel notes the claimant’s testimony that she and her husband were present in Canada together, and she does not know where he currently is. As part of a Rule 21 application, the panel disclosed a document indicating that the claimant’s husband has withdrawn his claim for refugee protection[9]. Given the withdrawal of his claim, the panel finds there is a likelihood that the husband would be without legal status to remain in Canada, and therefore returned to Nigeria.

[17] Based on the claimant’s evidence and the objective evidence in the NDP, the panel finds that the claimant’s fear of persecution in Nigeria is objectively well-founded. The panel is satisfied that the claimant faces a serious possibility of persecution if returned to Nigeria and that this risk would continue.

State Protection

[18] States are presumed to be capable of protecting their own citizens, except in situations where the state is in a state of complete breakdown. A claimant is required to approach the state for protection if protection might reasonably be forthcoming or, alternatively, if it is objectively reasonable for the claimant to have sought protection. To rebut the presumption of state protection, a claimant has to provide clear and convincing evidence of the state’s inability or unwillingness to protect its citizens.

[19] In these circumstances, the panel finds that adequate state protection would not be reasonably forthcoming to the claimant in Nigeria.

[20] Section 5.3 of the NDP indicates that there is poor or no implementation of legal instruments and measures to address domestic violence in Nigeria, and the implementation of laws addressing domestic violence is impeded by a lack of political will to deal with the issue. Marital rape is not recognized in Nigeria, and victims of domestic violence are often turned away by police officers who consider domestic violence a private or family matter. Police also sometimes blame victims for provoking abuse or further abuse them. The NDP reports that police retraumatize victims and that if both the female and male parties are present, the police will 90% of the time believe the man over the woman. Police were reluctant to intervene to protect women who formally accused their former husbands of abuse if the level of alleged abuse did not exceed local customary norms.[10]

[21] Item 5.16 also states that “given the lack of uniformity in law, ineffective monitoring mechanisms of the practice, minimal penalties for practicing FGM and overall public lack of awareness of the law, FGM continues to be prevalent in the country”. Sources report that anti-FGM projects are “hampered by a lack of enforcement of the law at the local level and the continuing challenge of violence against women across Nigeria.” Sources report that FGM-related reports to police are seldom acted on, and that barriers to reporting FGM are high for victims. Sources also indicated that the police response to these reports was inadequate and the traditional attitude consists of a refusal by police to interfere in matters that they see as falling within the sphere of the family.[11]

[22] In view of the objective evidence, the panel finds that adequate state protection would not be reasonably available to the claimant in Nigeria. The country information is clear and convincing evidence that rebuts the presumption that adequate state protection is available to the claimant in Nigeria.

Internal Flight Alternative

[23] The panel has also considered whether the claimant would have a viable internal flight alternative in Abuja. In these circumstances, the panel finds that there is no viable internal flight alternative available to the claimant.

[24] In this case, the father of the claimant’s minor daughter is an agent of persecution, and the panel has reason to believe that he has returned or will return to Nigeria. The claimant testified that her ex-husband and his family would be able to locate her in Abuja, including through data relating to her daughter’s school. The claimant also testified that her ex-husband would have access to her daughter in Nigeria because he is the father, and in Nigerian culture he would have more say over the child than the claimant.

[25] The panel cannot expect the claimant to relocate in Nigeria without her minor daughter, and the IFA assessment should therefore assume that the claimant and her daughter would be relocating together. Section 5.5. of the NDP states that “in principle, and [in] almost all practice, [children] are held to ‘belong’ to the father”. According to sources, “many women are denied custody and access to their children” upon divorce in Nigeria.[12]

[26] The panel finds that the agent of persecution’s parental rights over his minor daughter may allow him to seek police or governmental assistance in enforcing those rights if the claimant and her daughter were to relocate within Nigeria. This may allow him to access information about his daughter’s whereabouts, and therefore the claimant’s as well.

[27] The panel also finds that the claimant’s ex-husband has demonstrated an ongoing motivation to pursue and harm her. The panel notes the history of physical violence and abuse against the claimant, which eventually required police assistance and a protective order in Canada. The panel also notes the claimant’s testimony that she believes her husband would continue to pursue her and that he threatened to harm her if she left him. The claimant also spoke about threatening phone calls she received after her husband’s arrest in Canada, where the caller said they would kill the claimant if “something happened” to her ex-husband.

[28] The panel finds that the claimant’s ex-husband has the means and motivation to locate her throughout Nigeria. The panel therefore finds that the claimant does not have a viable internal flight alternative available in Abuja.

CONCLUSION

[29] The panel has considered the claimant’s testimony, her personal circumstances, the objective documentary evidence, the Chairperson’s Guideline 4, and the claimant’s personal documentary evidence. Based on the totality of the evidence, the panel finds the principal claimant does face a serious possibility of persecution in Nigeria. The panel therefore finds the principal claimant to be a Convention refugee as per s.96 of the IRPA and accepts her claim.

[30] As discussed, the minor claimant is a citizen of the United States and has not made allegations of harm or persecution against that country. The panel therefore finds the minor claimant does not face a serious possibility of persecution in the United States, nor, on a balance of probabilities, would she be subjected to a risk to life, a risk of cruel or unusual treatment or punishment, or a danger of torture. Therefore, the minor claimant’s claim is rejected.

——— REASONS CONCLUDED ———

[1] Immigration and Refugee Protection Act, S.C. 2001, c27, as amended, sections 96, 97(1)(a) and 97(1)(b)

[2] Exhibit 4

[3] Exhibit 2

[4] Exhibit 1

[5] Exhibit 4

[6] National Documentation Package, Nigeria, 30 November 2023, tab 5.3: Domestic violence, including legislation; protection and support services offered to victims (2016-November 2019). Immigration and Refugee Board of Canada. 14 November 2019. NGA106360.E.

[7] National Documentation Package, Nigeria, 30 November 2023, tab 5.11: Ritual in which a widow must drink the

water used to clean her late husband’s corpse; consequences for refusal to drink this water; whether a widow’s

refusal is interpreted as responsibility for her husband’s death; state protection … Immigration and Refugee Board of

Canada. 1 November 2018. NGA106184.FE.; National Documentation Package, Nigeria, 30 November 2023, tab

5.13: Whether Yoruba and lbo cleansing rituals for women in their thirties include circumcision in the states of

Ogun, Niger, Anambra, and Adamawa; whether women who have been accused of killing a family member through

witchcraft would be circumcised… Immigration and Refugee Board of Canada. 29 April 2013. NGA104392.E.

[8] National Documentation Package, Nigeria, 30 November 2023, tab 5.16: Country Policy and Information Note.

Nigeria: Female genital mutilation (FGM). Version 3.0. United Kingdom. Home Office. July 2022.

[9] Exhibit 13

[10] National Documentation Package, Nigeria, 30 November 2023, tab 5.3: Domestic violence, including legislation; protection and support services offered to victims (2016-November 2019). Immigration and Refugee Board of Canada. 14 November 2019. NGA106360.E.

[11] National Documentation Package, Nigeria, 30 November 2023, tab 5.16: Country Policy and Information Note. Nigeria: Female genital mutilation (FGM). Version 3.0. United Kingdom. Home Office. July 2022.

[12] National Documentation Package, Nigeria, 30 November 2023, tab 5.5: Divorce law and practices among Christians, including grounds, procedures, length of process, property dispositions, child custody and consequences for the woman and her family. Immigration and Refugee Board of Canada. 2 November 2012. NGA104209.E.