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2019 RLLR 19

Citation: 2019 RLLR 19
Tribunal: Refugee Protection Division
Date of Decision: December 13, 2019
Panel: Z. Perhan 
Counsel for the Claimant(s): Abba Chima 
Country: Nigeria
RPD Number: TB8-19949
ATIP Number: A-2021-01124
ATIP Pages: 000132-000136


DECISION

[1]       MEMBER: This is the decision for [XXX] File number TB8-19949. I have had an opportunity to consider your testimony and examine the evidence before me and I am ready to render my decision orally. You will receive an unedited transcript of this decision in the mail, your counsel will also get a copy so if you have any questions you are welcome to ask him.

[2]       You claim to be a citizen of Nigeria and you are claiming refugee protection pursuant to Section 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       I find that you are a Convention refugee for the following reasons.

[4]       The allegations of your claim can be found in the basis of claim form and its amended version in Exhibit 2 and 5. The details were elaborated today in your testimony.

[5]       In summary you fear persecution in Nigeria due to your sexual orientation as a member of a particular social group namely because you are a lesbian.

[6]       Based on the type of claim I have carefully considered chair person’s Guideline 9 relating to sexual orientation and gender identity and expression.

[7]       I find that your identity as a national of Nigeria has been established on a balance of probabilities both through your testimony and through the valid Nigerian passport which is presented, which was presented to us when you made your claim found in Exhibit 1. I find no reason to doubt the authenticity of that document.

[8]       In terms of your general credibility, I have found you to be a credible witness. You have testified in a straightforward manner and there were no relevant inconsistencies in your testimony or contradictions between your testimony and the other evidence before me.

[9]       I also find that there were no embellishments made within your testimony. Therefore I accept what you have alleged in support of your claim including the following.

[10]     As the central issue of your claim is sexual orientation I have put a lot of weight into your testimony about your past and current same sex partners in Canada.

[11]     You were able to present affidavits of support from your roommate, your former partner, your cousin, you current same sex partner in Exhibit 4. I find that these letters corroborated the key elements of your claim for protection namely your former and current same sex relationships in Canada as well as when your family members became aware of your sexual orientation and how it affected your decision to stay permanently in Canada.

[12]     You also presented a witness in this claim who you have alleged to be your current same sex partner. I know that she herself was apparently a successful refugee claimant on the issue of sexual orientation where you appeared as her witness.

[13]     She testified at today’s hearing for you, her general oral had almost no inconsistencies. Your partner seemed very nervous and stressed, when she was asked why she was unable to speak freely she admitted that she was very stressed for you and she was afraid to lose you in case the decision for your claim was negative. I find it is a reasonable explanation for situations like yours today.

[14]     But in general you seem to know your partner well and spend a lot of time with her. You celebrated holidays together, you have plans for the future and you talk freely about each other’s likes and dislikes as well as preferences.

[15]     You also detailed in your testimony your involvement in LGBTQ communities since coming to Canada. You presented attendance log and orientation training record from the 519 in exhibit 4. Though you did attend 519 only briefly but you explained that you felt this was more a place for newcomers and you have been in Canada for awhile. In addition you started working late shifts and were unable to make it to the meetings.

[16]     I find that your testimony about participation in the pride festivities over the past two years adds to the credibility of your allegations especially in regards to your motivation to do so based on your described past in Nigeria.

[17]     At the same time you have been living in Canada since 2007 either as a student or with a work permit. I understand the delay is not the determinative issue in any claim especially because you did have status in Canada up until the end of 2016.

[18]     However I do draw a negative inference from a two year delay in applying for refugee protection since you did not have status in Canada for the last two years.

[19]     I find however you provided a reasonable explanation as to why you did not seek refugee protection sooner. You did consult two lawyers during that time who helped you to try to extend your work visa in Canada twice but you were refused and the lawyers advised you to return to Nigeria to reapply from there.

[20]     Because of social, excuse me because of your sexual orientation you decided to remain in Canada without status up until 2018 when your current partner advised you to claim refugee protection.

[21]     Therefore I find that on a balance of probabilities you are a lesbian and that you have a subjective fear of returning to Nigeria.

[22]     I find that there is a link between what you fear and one of the five convention grounds. As I noted earlier the convention ground for you claim is particular social group, so I accept on a balance of probabilities that you are indeed a lesbian.

[23]     The overall objective evidence supports your claim for convention refugee protection based on the membership in a particular social group.

[24]     The national documentation package we have for Nigeria in Exhibit, in Exhibit 3 says that same sex relationships are criminalized in Nigeria. There is a same sex marriage prohibition act enacted in the months of January 2014 and it effectively renders illegal all forms of activity supporting or promoting LGBTQ rights.

[25]     According to item 2.1 in the NDP the government has formal charges for same sex relationships anyone who is convicted or aiding or assisting homosexual activities faces a punishment of ten years in prison. Anyone convicted of entering into a same sex marriage or civil union may be sentenced to up to fourteen years in prison.

[26]     Items 6.7 indicates that any sexual orientation that is not heterosexual is considered to be unnatural, demonic and immoral in Nigeria.

[27]     Based on these personal circumstances and the country conditions in Nigeria I find that you have an objective basis to your claim. You fear the police and state and authorities in Nigeria.

[28]     I find that it would be objectively unreasonable for you to seek the protection of the authorities in Nigeria in your particular set of circumstances. Adequate state protection would not be available to you as you fear the state.

[29]     With regards to possible viable internal flight alternatives in Nigeria, given the laws, the federal laws of Nigeria criminalizing same sex relations applicable, that they are applicable throughout Nigeria I find there is a serious possibility of persecution throughout Nigeria for you and therefore a viable internal flight alternative does not exist for you in Nigeria.

[30]     Having considered all the evidence I find here is a serious possibility that you would face persecution in Nigeria pursuant to Section 96 of the Immigration and Refugee Protection Act. I conclude that you are a Convention refugee based on your membership in a particular social group namely as a lesbian and I therefore accept your claim.

[31]     CLAIMANT: Thank you so much.

[32]     MEMBER: Thank you. Okay so this is the end.

[33]     COUNSEL: Thank you madam member.

[34]     CLAIMANT: Thank you

[35]     MEMBER: In your life in Canada now in the permanent status. Goodluck. I am going off the record.

———- REASONS CONCLUDED ———-