2024 RLLR 123

Citation: 2024 RLLR 123
Tribunal: Refugee Protection Division
Date of Decision: May 29, 2024
Panel: Christopher Kinsella
Counsel for the Claimant(s): Ian G Mason
Country: Nigeria
RPD Number: TC3-46749
Associated RPD Number(s): N/A
ATIP Number: A-2025-00724
ATIP Pages: 18–23

REASONS FOR DECISION

[1] XXXX (the “claimant”) claims to be a citizen of Nigeria and is seeking refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]

ALLEGATIONS

[2] The claimant alleges that he is a bisexual man and fears persecution at the hands of the police, his previous partner’s family and society in general in his country of nationality, Nigeria.

DETERMINATION

[3] I find that the claimant is a Convention refugee pursuant to section 96 of the IRPA based on the particular social group of bisexual men.

[4] In coming to this decision, I have taken into consideration Chairperson’s Guideline 9 on Proceedings before the Immigration and Refugee Board of Canada involving Sexual Orientation, Gender Identity and Expression and Sex characteristics (the “SOGIESC Guidelines”).[2]

ANALYSIS

Identity

[5] The claimant has established his personal and national identity as a citizen of Nigeria with his testimony and passport.[3]

Credibility

[6] When a claimant swears that certain facts are true, this creates a presumption that they are true unless there is valid reason to doubt their veracity. The presumption of truthfulness is rebuttable, and the claimant bears the burden of establishing his claim.

[7] I found the claimant to be a credible witness on a balance of probabilities, and therefore believe what he said in support of his claim.

[8] The claimant testified he describes his SOGIESC as a bisexual man and for him that means being attracted to both men and women. He testified that he recognized his bisexuality at the age of 15 and that he met his male partner, TA in 1998 when they were both in secondary school. He testified that they were together for 20 years. The claimant described aspects of the relationship with ease and spontaneity such as what he liked most about TA, the activities they participated in together and how they dealt with living in a homophobic society such as Nigeria. The claimant was asked how his life is different since coming to Canada and the claimant’s responses seemed both spontaneous and sincere. The claimant spoke about how in Canada he does not have to hide his sexuality and is able to live openly with the support of the LGBTQI+ community organizations he joined. The claimant testified that he and TA continued their relationship after he was married by seeing each other on the weekends until TA’s death in 2022. Furthermore, his testimony also contained many small details, such as the name of TA’s wife, the first time he noticed LGBTQI+ people in Nigeria, and the specific character traits that drew him to TA such as his jovialness, intelligence and trustworthiness, which are hallmarks of a lived experience. I found this added to the credibility of his sworn testimony.

[9] The claimant was asked about what led him to leave Nigeria and he testified in detail about the party that led to TA’s death where he and TA were caught in an intimate moment by TA’s brother and friend and the chaos that ensued with the neighbours as a result. The claimant testified that he fled to his father’s house in another area of Lagos and lived in hiding until he was able to secure a visa through an agent and entered Canada on XXXX, 2023. The claimant was able to elaborate on the differences between living in Nigeria and Canada as a bisexual man and his responses were sincere and knowledgeable. The claimant was honest about his current relationship status in Canada with the same sex and spoke candidly about starting a relationship with someone new and that he was taking it slow. The claimant did not embellish his testimony in relation to the romantic dates he has been on since coming to Canada. The claimant testified about coming out as bisexual to his wife and father and his testimony was both genuine and heartfelt in this regard. He explained the evolution of his father initially being very upset and beating him with a stick to realizing that the claimant was not safe in Nigeria and assisted him with securing a visa through an agent. The claimant was asked about what his plans are in relation to his bisexuality if his wife and children join him in Canada and he testified that his wife is understanding of the claimant’s bisexual identity. This was consistent with both his narrative and his wife’s letter[4].

[10] I find that the claimant’s testimony about his SOGIESC was authentic and materially consistent with his narrative and corroborating documents. The claimant submitted compelling letters from friends and family members[5] that corroborate the persecutory event that caused him to leave Nigeria. There was a complete absence of omissions, contradictions, and embellishments throughout his testimony. The claimant also provided support letters[6] from various LGBTQ organizations such as XXXX and the XXXX The claimant also provided over 80 photos[7] most of which are pictures of him supporting and attending various LGBTQ related events. While the photos and support letters do not establish the claimant’s allegations on their own, the sheer number of photos and inherent candidness of them do support that the claimant is a very active member in the LGBTQ community in Toronto.

Well-Founded Fear of Persecution

[11] The claimant’s fear of returning to Nigeria as a bisexual man is well founded in the objective evidence.

[12] The Australian Department of Foreign Affairs and Trade (DFAT) report states that there are no laws explicitly protecting sexual minorities form targeted violence or discrimination. Several federal and state laws criminalize same-sex sexual actions. There is a maximum penalty of 14 years imprisonment for violating section 214 of the 1990 Criminal Code. Same -sex marriage or civil union is also prohibited. Any activity supporting or promoting LGBTI rights or being perceived of such support is illegal and an individual is liable for up to ten years imprisonment. There have been several widely reported cases where LGBTI individuals have been arrested on the basis of perceived sexual orientation.[8]

[13] The U.S. Department of State report says that significant human rights issues include lack of accountability for gender-based violence and the enforcement of laws criminalizing consensual same-sex sexual conduct between adults. The law criminalizes the public display of same-sex “amorous affection.” LGBTQI+ persons reported threats and violence against them based on their real or perceived sexual orientation. LGBTQI+ persons persistently faced stigma, discrimination, and barriers to accessing basic health care. They also faced barriers in obtaining employment and housing.[9]

[14] A UK Home Office report writes that many bisexuals get married to people of the opposite sex to stop family pressure or to stop suspicions concerning their sexual orientation. The social environment leads to secrecy of same-sex relationships. Many people to not deal with their sexuality openly.[10]

[15] I accept as fact that the claimant is a bisexual man and that he stands to be threatened by society and would, always be subject to arrest, detention, and prosecution by Nigerian police. Based on the objective evidence, as listed above and his personal circumstances, the I find that the claimant faces a serious possibility of being located and harmed by the police and being prosecuted for same-sex activities as well as other forms of discrimination and violence amounting to persecution, should he return to Nigeria.

State Protection

[16] A state, unless in a condition of complete breakdown, is presumed to be capable of protecting its citizens. To rebut the presumption of state protection, a claimant must provide clear and convincing confirmation of the state’s inability to protect its citizens.

[17] In this claim, one of the agents of persecution is the state and the claimant fears persecution and prosecution because of his diverse sexual orientation. As noted in the SOGIESC guideline, the existence of laws criminalizing nonconforming sexual orientations, sexual behaviours, gender identities or expressions, or sex characteristics and the enforcement of these laws is 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 there is objective evidence that state protection in Nigeria is unavailable to the claimant if he were to seek it upon return to Nigeria.

Internal Flight Alternative

[18] Given that the state is the agent of persecution with control over the entire country and is one of the agents of harm, I find that there is a serious possibility of persecution throughout Nigeria and therefore a viable IFA is not available.

CONCLUSION

[19] Having considered all the evidence, I find that there is a serious possibility that the claimant would face persecution in Nigeria. I find that the claimant is a Convention refugee and I accept his claim.

——— REASONS CONCLUDED ———

[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1 ).

[2] Guideline 9 on Proceedings before the Immigration and Refugee Board of Canada involving Sexual Orientation,

Gender Identity and Expression and Sex Characteristics, issued by the Chairperson pursuant to paragraph 159(1)(h)

of the Immigration Refugee Protection Act, effective as of May 1, 2017, revised December 17, 2021 (the “SOGIESC Guideline” or “Guideline 9”).

[3] Exhibit 1.

[4] Exhibit 5, page 20.

[5] Ibid., pages 14-21

[6] Ibid., pages 22-28.

[7] Ibid., pages 66-147.

[8] Exhibit 3 .1, National Documentation Package (NDP) on Nigeria (30 November 2023), Item 1.8 at 3.94, 3.95, 3.97, 3.98.

[9] Exhibit 3.1, National Documentation Package (NDP) on Nigeria (30 November 2023 ), Item 2.1 at pp. 2, 30, 36, 37.

[10] Exhibit 3.1, National Documentation Package (NDP) on Nigeria (30 November 2023), Item 6.12 at p. 34, 35.