2024 RLLR 64

Citation: 2024 RLLR 64
Tribunal: Refugee Protection Division
Date of Decision: November 4, 2024
Panel: Christopher Kinsella
Counsel for the Claimant(s): Stewart Istvanffy
Country: Nigeria
RPD Number: TC4-76269
Associated RPD Number(s): N/A
ATIP Number: A-2025-00362
ATIP Pages: 34–40

REASONS FOR DECISION

[1] This is the decision for XXXX The claimant alleges that he is a citizen of Nigeria and claims refugee protection pursuant to s. 96 and 97(1) of the Immigration and Refugee Protection Act.

[2] In coming to the decision, the panel has considered and applied the Chairperson ‘s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, and Sex Characteristics (“SOGIESC Guidelines “)[1] .

ALLEGATIONS

[3] The details of the claimant’ s allegations are set out in his Basis of Claim form narrative.[2] To summarize, the claimant alleges that he faces a serious possibility of persecution in Nigeria from Nigerian authorities due to his sexual orientation, which he identified as bisexual.

[4] The claimant alleges that he came to be aware that he had sexual feelings for both males and females when he was 16 years old. The claimant alleges he began dating his first boyfriend at the age of 19 and that relationship lasted for 6 years until his boyfriend moved away to Abuja for work purposes.

[5] In 2005, the claimant met C at a party, and they began a relationship. In 2016, the claimant and C formed a group with other gay and bisexual men. The group decided that they would begin promoting that being gay or bisexual is not a crime by creating and printing off posters and placing them around their town.

[6] In 2022, the claimant and C were approached by a group of men who threatened them as they were aware that they were the people who were putting up the posters.

[7] On February 22, 2023, the claimant and C were attacked and threatened with death. The claimant and C managed to escape. When the claimant arrived at home, his wife informed him that the police came looking for him. The claimant then fled to Lagos before fleeing Nigeria for Canada on XXXX 2023. The claimant arrived in Canada on XXXX 2023, and made a refugee claim inland on May 17, 2023.

DETERMINATION

[8] The panel finds that the claimant is a Convention refugee pursuant to section 96 of the Immigration and Refugee Protection Act.

ANALYSIS

Identity

[9] Based on his testimony and a copy of his seized Nigerian passport on file[3], the claimant has established his personal identity and his identity as a national of Nigeria.

Nexus

[10] The panel finds that the claimant has established nexus with a Convention ground. The claimant alleges his fears stem from his bisexual identity. The panbel finds that the claimant has a established a nexus to the Convention as a member of a particular social group , that being bisexual men.

Credibility

[11] When a claimant swears to the truth of their allegations, this creates a presumption that they are true unless there is valid reason to doubt their truthfulness.[4] That presumption may be rebutted through the presence of inconsistencies, contradictions, omissions, or other indicia that undermine the reliability of the evidence. The panel is aware of the difficulties that exist for claimants in not just proving their claims but in testifying before the Board, and the inherent stress of testifying on sensitive matters.

[12] In this case, the claimant testified in a straightforward manner and spoke about his same sex relationships in a spontaneous way and provided a good amount of detail. He testified about when he started to realize that that he liked boys and how he had to hide his feelings. He spoke of his adult same sex relationship in Nigeria, how he met his partner, things they did together and what he liked most about him. When the panel asked for more details or examples, the claimant was able to do so without hesitation. The claimant also testified of how his family found out about his sexual orientation, and how it impacted those relationships. The claimant was able to testify genuinely about how the relationship with his father has been strained since the events occurred and how it has impacted his entire family.

[13] In addition, the claimant was able to provide corroborative documents[5] such as support letters from his wife and brother confirming events in the claimant’s narrative, letter of support from the Montreal LGBTQ+ community centre attesting to the claimant self-identifying as a member of the LGBTQ+ community, photographs of the claimant with his same sex partner and photographs of the claimant participating in Pride celebrations in Canada. The claimant also provided documents to establish that he owned a XXXX business in Nigeria as well as a Nigeria Police document that corroborates the events the claimant described during the hearing. Having examined these documents the panel finds no reason to doubt their authenticity and find that they corroborate the claimant’s narrative. The panel finds the evidence to be consistent and devoid of major inconsistencies and have given full weight to the se documents.

[14] Having considered that the claimant testified in a straightforward manner which was consistent with the supporting documents, the panel finds him overall to be a credible witness and therefore accept what he has alleged in support of his claim.

Well-Founded Fear of Persecution

[15] The documentary evidence demonstrates that minorities face a risk of persecution in Nigeria. Same-sex relationships are illegal and punishable with up to fourteen years in imprisonment.[6]

[16] Nigeria has been cited as one of the most homophobic countries in the world, not only due to the severity and comprehensiveness of its legislation that criminalizes same-sex relations, but also for the discriminatory and violent treatment faced by LGBTQ+ people in the form of arbitrary arrest, blackmail, physical and psychological abuse by the police, kidnapping, extortion, harassment, sexual attacks, subjection to conversion therapy, pressure to marry, and involuntary outing by family and society members.[7]

[17] According to a report from the Advocates for Human Rights (The Advocates), an NGO that promotes and protects international human rights and the rule of law, govemment officials “fail” to “adequately” investigate and prosecute the disappearance of LGBTQ+ people and “kidnapping and abduction” on the basis of SOGIESC is “often” not reported to police, since “many” LGBTQ+ individuals “fear discrimination, arbitrary arrest and detention, or being ignored by police”[8]. The same article sited the TIERs report on human rights violations which noted that state actors, “especially law enforcement officials” are among the top offenders for violence against LGBTQ+ individuals. Citing the Nigeria-based NGO Access to Good Health Initiative (AGHI), the same report further notes that after arresting 92 people at a raid on the grounds that they were gay, people were detained for almost a week, beaten, and refused medications.[9]

[18] The objective evidence further provides that according to The Initiative for Equal Rights, LGBTQ+ persons reported threats and violence against them based on their real or perceived sexual orientation or gender identity. It also states that the law does not provide protections for or prohibit discrimination against LGBTQ+ persons and forbids same-sex marriage and civil unions. LGBTQ+ persons persistently face stigma, discrimination, and barriers to accessing basic heal1h care. The Freedom in the World 2022 report from Freedom House states thatLGBTQ+individuals “face widespread official and societal discrimination”. The RIR further adds that the Australia DFAT report states that individuals accused of homosexuality are “at risk” of losing their jobs, having to move from their village or neighbourhood, or facing deadly violence. The Initiative for Equal Rights report, covering human rights violations related to SOGIESC in Nigeria between December 2020 and November 2021, documented 521 cases, with “blackmail, extortion, assault, and battery” being the most common forms of rights violations carried out by non-state actors, defined as “the public, through individuals and groups, whether organised or not.[10]

[19] Considering all the objective evidence, the panel notes that the claimant’s sexual orientation is criminalised in Nigeria, and finds that homophobia, mistreatment, and acts of violence againstmembers of the LGBTQ+ community is prevalent across Nigeria. The panel finds that the claimant has a subjective fear that is supported by the objective evidence, and he has established a well-founded fear of persecution in Nigeria based on his sexual orientation as a bisexual man.

State Protection

[20] The panel finds that the claimant rebutted the presumption of state protection. The evidence objectively establishes that same-sex relationships are illegal in Nigeria and the state allows societal actors to act with impunity against such individuals.

Internal Flight Alternative

[21] With regards to relocation, the panel finds that there is nowhere in Nigeria where the claimant would be able to openly express his sexual orientation. The ban on same-sex relationships exists throughout the country. It is well-established that an internal flight location is not viable if an individual with diverse SOGIESC must conceal their sexual orientation to live in that location. Therefore, the panel finds that the claimant faces a serious possibility throughout the country based on his membership in a particular social group.

CONCLUSION

[22] Based on the totality of the evidence the panel finds that the claimant is a Convention refugee pursuant to section 96 of the Immigration and Refugee Protection Act. The claim is accepted.

——— REASONS CONCLUDED ———

[1] Chairperson’s Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, and Sex Characteristics Effective date: May 1, 2017, revised December 17, 2021

[2] Exhibit 2.

[3] Exhibit 1.

[4] MalDonado v. Minister of Employment and Immigration, 1979 Can LI I 4098 (FCA), [1980] 2 FC 302.

[5] Exhibit 5.

[6] Exhibit 3, item 6.4.

[7] Exhibit 3, item 6.2.

[8] Exhibt 3, item 6.17.

[9] Ibid

[10] Exhibit3,item 6.17.