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2019 RLLR 138

Citation: 2019 RLLR 138
Tribunal: Refugee Protection Division
Date of Decision: September 11, 2019
Panel: D. McKeown
Counsel for the Claimant(s): M. Mary Akhbari
Country: Nigeria 
RPD Number: TB8-26572
ATIP Number: A-2021-00256
ATIP Pages: 0000117-000120


DECISION

[1]       MEMBER: I’ve considered the testimony and evidence and I’m now prepared to render a decision.

[2]       The claimant is [XXX]. He seeks refugee protection against Nigeria pursuant to Sections 96 and 97 of the Immigration and Refugee Protection Act.

[3]       For the following reasons the panel finds the claimant is a Convention refugee and this claim is accepted.

[4]       COUNSEL: Just relax. Like sit back and chill out. Okay.

[5]       MEMBER: Should I … should I do the rest in writing perhaps?

[6]       COUNSEL: No, you can read it.

[7]       MEMBER: I’m … I’m just going to keep talking from here.

[8]       This claim was based on the following allegations. The claimant is bisexual. He left Nigeria in [XXX] 2017 when pressure from the community and his family became too much to bear any longer regarding his sexual orientation.

[9]       The claimant arrived in the United States on [XXX], 2017 and thereafter arrived in Canada on [XXX], 2018. The claimant signed his Basis of Claim on September 21st, 2018.

[10]     The panel took into consideration the Chairperson’s guidelines on sexual orientation and gender identity and expression when considering the process of this hearing and … and assessing the facts of this case.

[11]     The identity of the claimant was established on the basis of his Nigerian passport. The original of which was seized by the Minister.

[12]     The panel’s only significant concern in this claim was his failure to seek protection in the United States. The claimant was an educated and successful businessman. His friends in the United States knew about his sexual orientation. Instead of seeking legal means to remain in the understood he colluded with his friends to engage in a fake marriage of convenience so that he could immigrate there.

[13]     The claimant also explained that he feared the American Government and president who is not welcoming of refugees.

[14]     The panel does not accept these explanations. The United States is a democratic country which upholds the rule of law. They are Convention signatory and maintain a functioning asylum determination system.

[15]     It is simply not credible that the claimant took no steps to secure his own safety and protection in the United States until just before his visa was set to expire. The claimant’s failure to seek protection in the United States does undermine his allegations of subjective fear and the credibility of this claim. Having said that, this concern being the only significant concern in this claim the panel is prepared to give the claimant the benefit of the doubt.

[16]     The claimant is entitled to the presumption that he has been truthful unless there is reason to believe otherwise. While this failure to claim is concerning, the panel cannot say that it undermines the credibility of this claim in its entirety.

[17]     In all of the respects the panel found that the claimant was credible. The claimant spoke about his relationships in Nigeria, both with men and his wife. He spoke about how he lived and how he managed to keep his sexuality hidden from the community.

[18]     The claimant answered difficult questions posed by the panel. And where the panel had concerns about the narrative, those concerns were answered with reasonable and plausible explanations. There were no inconsistencies or embellishments.

[19]     The panel found the claimant’s testimony was compelling and the claimant was amply … the claim was amply supported by objective documentation including extensive proof that this ordeal has taken a severe toll on the claimant’s mental health.

[20]     These supporting aspects of the claim were not outweighed by his failure to claim in the United States.

[21]     The National Documentation Package for Nigeria supports this claim. The panel has access to reliable sources such as the US DOS report and the UK Home Office report. Each of which are clear about the consequences of same sex relationships in Nigeria. Punishments can include vigilante justice and 14 years in prison, for example.

[22]     Whereas the State is the agent of persecution, the claimant has rebutted the presumption that State protection would be adequate or forthcoming.

[23]     Likewise, there is no location in Nigeria the claimant could go where he would not face a serious possibility of persecution.

[24]     For all these reasons the panel finds this claim is credible. The claimant’s fear is well-founded. The claimant faces a serious possibility of persecution in Nigeria on account of his membership in a particular social group being a bisexual person.

[25]     The claimant is a Convention refugee and this claim is accepted.

[26]     Thank you very much.

[27]     COUNSEL: Thank you.

[28]     MEMBER: Thank you both very much. Thank you, sir, for being here and I know that this was difficult for you. Go home and get some sleep.

[29]     CLAIMANT: Thank you so much.

[30]     MEMBER: Thank you very much. Everyone have a good afternoon.

———- REASONS CONCLUDED ———-