2024 RLLR 48

Citation: 2024 RLLR 48
Tribunal: Refugee Protection Division
Date of Decision: June 19, 2024
Panel: P. Gongora
Counsel for the Claimant(s): Joan Amanfoh
Country: Nigeria
RPD Number: TC3-19920
Associated RPD Number(s): TC3-21434
ATIP Number: A-2025-00128
ATIP Pages: N/A

REASONS FOR DECISION

[1] These are the reasons for the decision in the refugee claims of XXXX XXXX XXXX XXXX XXXX, the principal claimant (PC), and XXXX XXXX XXXX XXXX XXXX, the associate claimant (AC), who are seeking protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA). [1] The claims were heard jointly as required by Rule 55(1) of the Refugee Protection Division Rules.

ALLEGATIONS

[2] The allegations are set out in the claimants’ Basis of Claim Forms (BOC).[2] To summarize, the claimants fear returning to Nigeria due to the principal claimant’s sexual orientation as a bisexual woman.

DETERMINATION

[3] The panel finds the principal claimant to be a Convention refugee under section 96 of the IRPA because she has established, on a balance of probabilities, that she faces a serious risk of persecution throughout Nigeria on the Convention ground of membership in a particular social group, namely being a bisexual woman.

[4] Similarly, the panel finds that the associate claimant is a Convention refugee under section 96 of the IRPA because he also holds a Nexus to the Convention based on his membership in a particular social group, as the immediate family members of someone who holds a nexus to the Convention.

[5] In coming to a decision, the panel has considered and applied the Chairperson’s Guideline 9: Proceedings before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics.[3]

ANALYSIS

Identity

[6] The claimants’ personal and national identities as Nigerian nationals have been established on a balance of probabilities through copies of their Nigerian passports.[4]

Credibility

[7] When a claimant swears to the truth of their allegations, the allegations are presumed to be true unless there are reasons to doubt their truthfulness.[5] The presumption of truthfulness is rebuttable, and the claimant bears the burden of establishing his or her claim.[6] The panel is cognizant that there is no standard criteria that can be relied upon to establish an individual’s identification as a SOGIESC individual.[7] After assessing the claimants’ testimony and supporting documents, the panel finds the claimants to be credible.

Principal Claimant’s SOGIESC Profile Established

[8] The principal claimant testified that she discovered she was bisexual at the age of 12 when her sister’s friend, XXXX, introduced her to same-sex relationships. The PC explained that her sister is bisexual and transgender, which allowed the PC to explore her sexual orientation and confide in her sister for support. The PC testified that she began a same-sex relationship with XXXX in 2010. When asked what she liked most about XXXX, the principal claimant testified that she admired XXXX’s bold personality and that she was not afraid to speak her mind. When asked about the activities they did together, the PC testified that they would spend time at the neighbourhood park and that XXXX would often visit her at her home as she was considered a “family friend”. The panel finds that the PC was able to answer the panel’s questions regarding XXXX’s personality and family without embellishment or hesitation. The panel found no inconsistencies between the PC’s testimony and narrative. The panel therefore finds, on a balance of probabilities, that the principal claimant was in a same-sex relationship with XXXX as alleged.

[9] The PC testified that after her relationship with XXXX ended, she entered a same-sex relationship with XXXX while she was at university. The PC explained that XXXX was her classmate, and they were both studying XXXX. When asked about the relationship, the PC testified that she would spend most of her time with XXXX studying or going out with friends. When asked what she liked most about XXXX, the PC testified that she enjoyed having XXXX’s company both in and out of school as it made her feel less alone. The PC testified she was in this relationship for approximately one year and allowed her to further understand her sexual orientation. To support her testimony, the PC provided several photographs of her with XXXX going to restaurants, celebrating XXXX’s birthday, and spending time at the beach.[8] The panel attaches the photographs full weight and finds that they support the claimant’s testimony. Based on the claimant’s testimony and supporting documents, the panel finds, on a balance of probabilities, that the principal claimant was in a same-sex relationship with XXXX as alleged.

LGBTQ+ Involvement in Canada

[10] The PC testified that she has been in one same-sex relationship here in Canada with a woman named XXXX. The PC testified that she met XXXX at a house party in Toronto in XXXX of 2023. The PC testified that the relationship was strictly physical and only lasted three months because XXXX was not ready for serious commitment. When asked about the relationship, the principal claimant testified that she enjoyed spending time with XXXX as she felt free and comfortable expressing her sexual orientation in Canada without fear of persecution. The claimant provided a letter of support from XXXX which corroborates her testimony. The panel attaches the letter full weight and finds that it further establishes the claimant’s sexual orientation.

[11] When asked about her involvement in the LGBGQ+ community in Canada, the PC was able to speak about her involvement with the XXXX and the XXXX XXXX XXXX XXXX XXXX XXXX. The claimant was able to speak about the location of the organizations, their purpose, and their various programs. The panel notes that the PC provided a letter of support from the XXXX and the XXXX.[9] The panel attaches the letters full weight and finds that they support the principal claimant’s testimony. The panel finds, on a balance of probabilities, that the principal claimant is actively involved in the LGBTQ+ community in Canada, and that this involvement further establishes her sexual orientation.

Principal Claimant’s Sexual Orientation Discovered as Alleged

[12] The principal claimant testified that she entered a heterosexual relationship with her ex-fiancé, XXXX, in XXXX of 2019. The claimant testified that she met XXXX through her cousin and they dated for approximately three years. The PC testified that she did not disclose her past same-sex relationships or her sexual orientation with her ex-fiancé as they were getting married, and she did not want him to judge her. The PC testified that she and XXXX were set to marry in XXXX of 2022, but XXXX found evidence of her same-sex partners on her cell phone. When asked how XXXX reacted to the PC’s sexual orientation, the PC testified that he became furious and disclosed her sexual orientation to their families, the Nigeria police, and their Nigerian community. The PC further testified that XXXX called-off the wedding and began extorting the claimant and her family.

[13] The associate claimant testified that the principal claimant came to his residence in Enugu state as the Nigeria police had attended the PC’s home looking for her. The associate claimant further testified that XXXX had called him to inform him of his sister’s sexual orientation, of which he already knew, and to ask of her whereabouts. The AC explained to XXXX that he had not had any communication with his sister as a means of protecting himself and his sister. However, the AC testified that on XXXX XXXX, 2022, police attended his residence looking for him and the principal claimant, but they were not home. The AC testified that his roommate was home at the time and informed police that the claimants had left Enugu state. The claimants testified that they went into hiding and began living with the associate claimant’s ex-girlfriend.

[14] To support their testimony, the claimants provided photographs of the principal claimant with her ex-fiancé, an affidavit from the claimants’ mother, and an affidavit from the associate claimant’s ex-girlfriend.[10] The panel attaches the photographs full weight and finds that they establish the PC’s relationship to XXXX. The panel notes that the affidavit from the claimants’ mother speaks of the PC’s sexual orientation, her relationship with XXXX, and the harassment the family has faced following the disclosure of the PC’s sexual orientation. The letter also speaks of the visit from the Nigeria police at the PC’s home. Similarly, the letter from the associate claimant’s ex-girlfriend corroborates that the claimants were living in hiding at her home after the Nigerian police began looking for the claimants in Enugu state. The panel attaches the affidavits full weight and finds that they support the claimants’ allegations.

[15] Based on the claimants’ testimony and supporting documents, the panel finds, on a balance of probabilities that the PC’s sexual orientation was discovered as alleged. The panel further finds, on a balance of probabilities, that the Nigeria police has been searching for the claimants following the disclosure of the PC’s sexual orientation.

Forward-Facing Risk Established

[16] The claimants testified that the Nigeria police continues to look for them. The PC testified that she is wanted for engaging in same-sex activity and that the associate claimant is wanted for having aided the principal claimant in hiding. The PC testified that her mother has been visited by the police on three additional occasions since she left Nigeria and that a summons has been provided. Similarly, the associate claimant testified that the Nigeria police located his ex-girlfriend and visited her home questioning her about his whereabouts. The panel notes that the claimants’ testimonies are supported by the affidavits provided by the claimants’ mother and the AC’s ex-girlfriend. The panel has previously attached these documents full weight and therefore finds that they support the claimants’ allegations. Furthermore, the claimants provided a copy of the police summons.[11] When asked how the summons was obtained, the PC testified that the police had delivered it at her mother’s residence and requested that the principal claimant report to the police station for questioning. The panel notes that the police summons contains the Nigeria police logo and letterhead. Similarly, the letter contains a Nigeria police stamp and has been signed by police authorities.[12] The panel has no credibility concerns regarding the document and therefore attaches it full weight. Based on the testimony and supporting documents, the panel finds, on a balance of probabilities, that the claimants are both being sought by the Nigeria police and that their forward-facing risk has been established.

Well-Founded Fear of Persecution

[17] The panel finds that the claimants’ subjective fear of persecution in Nigeria on account of the PC’s sexual orientation is supported by the National Documentation Package of Nigeria (NDP).

[18] Nigeria passed the Same Sex Marriage Prohibition Act in 2013 which prohibits same-sex relationships throughout the country which some sources suggest has propelled prejudice rooted in discrimination towards LGBT people.[13] Item 6.7 of the NDP indicates that societal perceptions of homosexuality are founded on “opinions that homosexuality is unnatural, sinful and an abomination” and that federal criminal law deems same-sex activity punishable by up to 14 years in prison.[14]

[19] Item 6.12 of the NDP states that same-sex relations and groups that support LGBT persons are criminalized.[15] Police have been reported to arrest and detain, as well as commit other abuses against LGBT persons. The objective evidence reports that police may investigate and pursue someone for same-sex activity, for any number of reasons or for arbitrary reasons based on the person’s appearance or mannerism.[16] It is noted that the police use intimidation, torture and victimization when investigating or pursuing individuals for same-sex activity.[17] It is also noted that LGBT persons may also face societal discrimination and isolation, including violence, blackmail, and extortion from non-state actors, including family and community members.[18]

[20] Finally, the objective evidence indicates that family members of sexual minorities can face ostracism, stigmatization, and embarrassment from community members and extended family.[19] Sources also indicate that when the person who is a sexual minority is no longer in the country, family members still face stigma, discrimination, and neglect.[20]

[21] The panel finds, on a balance of probabilities, that the claimants’ subjective fear is well founded according to the NDP’s objective evidence on the country conditions in Nigeria.

State Protection

[22] Section 8.64 of Guideline 9 indicates that the existence of laws criminalizing non-conforming sexual orientations, sexual behaviours, gender identities or sex characteristics and the enforcement of these laws by the state may be evidence that state protection is inadequate.[21] As same-sex sexual activity is criminalized throughout Nigeria and homophobic violence continues with impunity, the panel finds, on a balance of probabilities, that there is clear and convincing evidence that adequate state protection would not be available to the claimants as the agent of persecution includes the Nigerian State.

Internal Flight Alternative

[23] 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.[22] The panel finds that the claimants face a serious possibility of persecution throughout Nigeria because of the country’s Same Sex Marriage Prohibition Act and the ongoing efforts by the Nigeria police to locate the claimants. As such, the panel finds, on a balance of probabilities, that there is no viable IFA for the claimants in Nigeria as the test for an internal flight alternative fails on the first prong.

CONCLUSION

[24] For the reasons stated above, the panel finds that the principal claimant faces a serious possibility of persecution in Nigeria based on his membership in a particular social group, bisexual women.

[25] The panel also finds that the associate claimant faces a serious possibility of persecution in Nigeria based on his membership to a particular social group, namely his familial relationship to the principal claimant who holds a nexus to the Convention.

——— REASONS CONCLUDED ———

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

[2] Exhibit 2.1, 2.2, and 2.3.

[3] Chairperson’s Guideline 9 of the Refugee Protection Division: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics. Effective date: May 1, 2017.

[4] Exhibit 1.

[5] Maldonado v Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (FCA).

[6] Gill v. Canada (MCI), 2004 FC 1498.

[7] Guideline 9.

[8] Exhibit 5.

[9] Exhibit 5.

[10] Exhibit 5.

[11] Exhibit 5.

[12] Exhibit 5.

[13] National Documentation Package for Nigeria May 31, 2024 Version: Item 6.1: “Anti-LGBTQ Vigilante Groups,” Immigration and Refugee Board of Canada (October 29, 2020).

[14] NDP Item 6.7: “Information on How Bisexuality is Understood and Perceived in Nigeria,” Immigration and Refugee Board of Canada (September 9, 2015).

[15] NDP Item 6.12: “Country Policy and Information Note. Nigeria: Sexual Orientation, Gender Identity and Expression (SOGIE). Version 3.0,” United Kingdom. Home Office (February 2022).

[16] NDP Item 6.8: “Police Procedures for Investigation and Pursuit of Individuals for Same-Sex Activity,” Immigration and Refugee Board of Canada (November 11, 2016).

[17] NDP Item 6.8: “Police Procedures for Investigation and Pursuit of Individuals for Same-Sex Activity,” Immigration and Refugee Board of Canada (November 11, 2016).

[18] NDP Item 6.12.

[19] NDP Item 6.17: “Treatment of Individuals with Diverse Sexual Orientation and Gender Identity and Expression and Sex Characteristics (SOCIESC),” Immigration and Refugee Board of Canada (November 2, 2022).

[20] NDP Item 6.17.

[21] Guideline 9.

[22] Guideline 9.