2024 RLLR 80

Citation: 2024 RLLR 80
Tribunal: Refugee Protection Division
Date of Decision: October 31, 2024
Panel: Kayla Blackwood
Counsel for the Claimant(s): Sunday Adeyemi
Country: Nigeria
RPD Number: TC3-36485
Associated RPD Number(s): N/A
ATIP Number: A-2025-00362
ATIP Pages: N/A

DECISION

[1]       MEMBER: These are the reasons for the decision in the refugee claim of XXXX XXXX XXXX, the claimant who alleges to be a citizen of Nigeria and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act, IRPA.

[2] The claimants allegations are fully noted in his Basis of Claim form, which can be found in Exhibit 2, and an amendment to that document that can be found in Exhibit 5.

[3] In summary, the claimant fears returning to Nigeria and Senegal due to his sexual orientation as a bisexual man.

[4] The Panel finds the claimant is a Convention refugee under section 96 of the IRPA because he has established on a balance of probabilities that he faces a serious possibility of persecution throughout Nigeria on the Convention ground of membership in a particular social group, namely bisexual men.

[5] The Panel found that the identity of the claimant as a national of Nigeria is established on a balance of probabilities by a copy of his Nigerian passport issued by the Federal Republic of Nigeria, and this can be found in Exhibit 1.

[6] For a claimant to be a Convention refugee, the claimant must have a well-founded fear of persecution due to a Convention ground, the Convention grounds are race, religion, nationality, membership in a particular social group, and political opinion.

[7] The Panel finds there is a link between the claimant’s fear of return and the Convention grounds, and this would be membership in a particular social group, bisexual men. Therefore, the claim will be assessed pursuant to section 96 of the IRPA.

[8] The test under section 96 is whether there is a serious possibility of persecution should the claimant return to Nigeria. The Panel finds that the claimant has met this test.

[9] As pertaining to his credibility, Maldonado v. Canada states that when a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there is reason to doubt their truthfulness. In analyzing the claimant’s testimony, the Panel considered cultural, psychological, or other barriers that may explain the way in which testimony is presented, as referenced in section 6.2 of the SOGIESC guideline.

[10] The Panel also considered the possibility that the stigma associated with people with various SOGIESC or the treatment of people in Nigeria may cause some reluctance or difficulty to speak on the subject, as noted in section 3.3 of the SOGIESC guideline and reported in the National Documentation Package, the NDP, for Nigeria, section 10.6, the National Documentation Package for Nigeria May 31st, 2024.

[11] During the hearing, the Panel took into consideration the SOGIESC guideline and the sensitive nature of the claimant’s allegations by focusing questions on the awareness and understanding of the claimant’s sexual orientation differences in Nigeria, and on those relationships that he found to be the most meaningful.

[12] The Panel asked open-ended questions to allow the claimant to give details about his experiences and followed up, when necessary, to elicit more information and gather information to render a decision.

[13] The claimant testified regarding his early discovery of his sexuality at the age of 14, and not being able to discuss what he was feeling with anyone, including members of his Christian family.

[14] In later years, he dated both women and men, and eventually married his current wife and had four (4) children.

[15] The claimant’s testimony with regards to his same-sex relationships were personalized, internally consistent, and sufficiently detailed. He provided specific details about his long-term relationship with XXXX (ph) and his casual relationships with XXXX (ph) and XXXX (ph).

[16] He was able to explain what he and XXXX had in common, how they met, their favourite and most memorable activities they shared, such as playing table tennis, swimming, and going to the gym, and how they were able to keep the relationship a secret by not being affectionate while they were in public together.

[17] He was forthcoming about the agreement he made with his wife to be able to continue to have same-sex relationships while he was still married to her.

[18] While in Canada, the claimant met and entered into a same-sex relationship with XXXX (ph) in XXXX 2024, a fellow community member at XXXX XXXX XXXX XXXX XXXX. The claimant went on to say that the relationship was toxic and that XXXX was being possessive, and as a result, he ended the relationship in XXXX 2024.

[19] There were no material inconsistencies in the claimant’s oral testimony or contradictions between his testimony and the other evidence before the Panel that were not reasonably explained. Overall, the Panel finds the claimant was a credible witness and that he has established his sexual orientation on a balance of probabilities.

[20] The claimant tendered personal documentary evidence found in Exhibit 6 to support his claim that he is a bisexual man who faced persecution in Nigeria based on his sexual orientation. These documents included support letters from his wife, mother, and his neighbour. The support letters are signed and accompanied with government issued picture identification.

[21] The claimant’s spouse spoke of how she came to learn of the claimant’s sexual orientation and that she was not happy when she found out, but because of her love for him, she decided to accept him as a bisexual man.

[22] She went on to say that the police have repeatedly continued to show up at her home looking for the claimant. These letters from the claimant’s mother and neighbour corroborate the claimant’s testimony that after his sexuality was exposed, he became a person of interest by the authorities because of his illegal same-sex activities.

[23] These support letters are based on firsthand information and reiterate the claimant’s allegations. The Panel assigns these letters full weight as reliable evidence to corroborate the claimant’s allegations about his sexual orientation.

[24] The claimant was unable to provide witness testimony from his long-term same-sex partner, XXXX, because he was no longer in communication with him after he left Nigeria and believed he had relocated to the UK after their sexuality was discovered. The claimant further testified that he made attempts to contact XXXX, but his efforts proved futile.

[25] As referenced in section 7.1 and 7.21 of the SOGIESC guideline, while an individual’s experiences and behaviours related to their SOGIESC may be expressed in both the private and public spheres, an individual’s testimony may, in some cases, be the only evidence of their SOGIESC. Secondly, corroborating evidence from family or friends may not be available in cases involving SOGIESC.

[26] In assessing the claimant’s overall credibility, the Panel finds that his testimony was consistent with someone whose sexual orientation did not conform to societal and religious norms and expectations, and Nigeria’s laws. When the Panel considers the claimant’s evidence, the Panel is satisfied that he has credibly established his profile as a bisexual man on a balance of probabilities.

[27] The Panel finds the claimant’s fear has an objective basis on a balance of probabilities.

[28] Nigeria has been cited as one (1) of the most homophobic countries in the world. The Panel refers to the National Documentation Package, NDP, for Nigeria dated May 31st, 2024. The NDP confirms that LGBTQ+ persons face widespread persecution in Nigeria.

[29] Anyone convicted of entering into a same-sex marriage or civil union may be them to up to 14-years imprisonment. The law also criminalized the public show of same-sex affection. The existence of anti-LGBTQ laws contribute to a climate of fear, and the police in Nigeria are reported to harass, blackmail, and arbitrarily arrests and detain LGBTQ+ persons.

[30] This is consistent with the personal experience of the claimant, where police have frequently visited his home in both Nigeria and Senegal in attempts to arrest him.

[31] In 2014, the Nigerian government passed the same Sex Marriage (Prohibition) Act, which criminalizes same-sex marriage and effectively renders illegal all forms of activities supporting or promoting the rights of sexual minorities. The NDP also confirms that family members of persons identifying with the LGBTQI+ community face societal attitudes, shame, and loss of status within Nigeria.

[32] As per the evidence discussed previously, the claimant’s wife and mother in Nigeria had reported being harassed by the police in his absence. In view of the objective evidence regarding the treatment of LGBTQ+ persons in Nigeria and the Panel findings that the claimant has established his profile as an LGBTQ+ individual, the Panel finds that he faces a serious possibility of persecution in Nigeria on account of his sexual orientation.

[33] With regards to state protection, the NDP indicates that LGBTQ+ persons often cannot report violence committed against them to the police because the police are perpetrators of the violence.

[34] The Department of State report from the United States indicates that since the Same Sex Marriage (Prohibition) Act came into effect, the law has become a tool used by police and members of the public to legitimize human rights violations against LGBTQI+ persons such as torture, sexual violence, arbitrary detention, extortion, and violation of due process rights.

[35] Section 8.64 of the 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.

[36] Since the state is the agent of persecution in this claim, the Panel finds that adequate state protection would not be available to the claimant in Nigeria, and that he has rebutted the presumption of state protection with clear and convincing evidence.

[37] The SOGIESC guidelines states that it is well-founded in law that an internal flight alternative is not viable if an individual with a diverse SOGIESC must conceal their SOGIESC in order to live in that location.

[38] As per the evidence above and given that the state is the agent of persecution, the Panel find on a balance of probabilities that an internal flight alternative is not available to the claimant in Nigeria, and that he faces a serious possibility of persecution throughout Nigeria based on his sexual orientation. Therefore, the test for an internal flight alternative fails on the first prong.

[39] For the reasons stated above, the Panel finds on a balance of probabilities that the claimant would face a serious possibility of persecution if returned to Nigeria on account of his sexual orientation.

[40] The Panel further finds that the claimant is a Convention refugee pursuant to section 96 of the IRPA, and his claim has been accepted.

——— REASONS CONCLUDED ———