Citation: 2019 RLLR 28
Tribunal: Refugee Protection Division
Date of Decision: October 11, 2019
Panel: J. Robinson
Counsel for the Claimant(s): Richard Wazana
Country: Nigeria
RPD Number: TB9-02835
Associated RPD Number(s): TB9-02920, TB9-02921, TB9-02922, TB9-02933
ATIP Number: A-2021-01124
ATIP Pages: 000165-000169
DECISION
[1] MEMBER: This is the decision for the following claimants, [XXX], [XXX], [XXX], [XXX] and [XXX] and file numbers TB9-02835, TB9-02920, TB9-02921, TB9-02922 and TB9-02933, respectively.
[2] [XXX] was appointed as the designated representative for the minor claimants, whom I refer to as, [XXX], [XXX], [XXX] and [XXX].
[3] I have considered your testimony and the other evidence in the case. I’m ready to render my decision, orally.
[4] The claims were heard jointly pursuant to Rule 55 of the Refugee Protection Division Rules. The principal claimant was appointed as the designated representative for her children, the minor claimants.
[5] In making this decision, the panel has considered the Chairperson’s Guideline 9, Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression and the Chairperson’s Guideline 4, Women Refugee Claimants Fearing Gender-related Persecution.
[6] Having considered the totality of the evidence, the panel finds that the minor claimant, [XXX], that is, [XXX], is not a Convention refugee, pursuant to Section 96 of the IRPA or a person in need of protection, pursuant to subsection 97(1) of the IRPA.
[7] Counsel indicated clearly at the beginning of the hearing that he was not leading any evidence with respect to this minor claimant, a U.S. citizen.
[8] With respect to this claim, I do not have any persuasive evidence before me to suggest that the minor claimant would face a serious possibility of persecution in the U.S. or that she would face a risk of torture or a risk to her life or cruel or unusual treatment or punishment in the U.S., were she to return there.
[9] Therefore, the panel rejects the claim of the minor claimant, [XXX].
[10] The remainder of these reasons shall be in reference to the four remaining claimants.
[11] The panel finds that the claimant, [XXX], is a Convention refugee pursuant to Section 96 of the IRPA on the basis of her membership in a particular social group, namely, as bi-sexual.
[12] The panel finds that she would face a serious possibility of persecution in Nigeria.
[13] The panel finds that the female minor claimant, [XXX], is a Convention refugee, pursuant to Section 96 of IRPA on the basis of gender discrimination because she faces a serious possibility of persecution in Nigeria in so far as the principal claimant’s husband’s extended family wishes to perform female genital mutilation, FGM, upon the female minor claimant.
[14] The panel finds that the minor male claimants, [XXX] and [XXX], are Convention refugees pursuant to Section 96 of IRPA on the basis of religious belief, in so far as the principal claimant’s husbands extended family wishes to perform ritual incision upon them and they do not agree.
[15] The allegations in the claim are found in the respective Basis of Claim Forms, filed by the claimants. The claimants fear that they will be killed or seriously harmed because the principal claimant is bi-sexual and because the minor claimants have refused to undergo ritual mutilation to purge or atone for the perceived transgressions of the principal claimant.
[16] The identity and country of reference for the claimants have been established, on the balance of probabilities, by the claimants’ Nigerian passports.
[17] The principal claimant is a member of a particular social group, as a bi-sexual, as is the female minor claimant, who has been threatened with FGM. I am, therefore, satisfied on the available evidence, that the principal claimant and the female minor claimant have established a nexus to a Convention ground under Section 96 of the IRPA, on the basis of gender-based persecution.
[18] I am also satisfied, on the basis of the available evidence, the male minor claimants have established a nexus to a Convention ground under Section 96 of the IRPA, on the basis of religious belief because the male minor claimants are Christians who do not wish to undergo a ritual incision.
[19] In terms of your general credibility, I have found you to be a credible witness and I, therefore, believe what you have alleged in your oral testimony and in your Basis of Claim Form.
[20] You have explained that your difficulties in Nigeria arose in [XXX] 2018 when your sister-in-law discovered your affair with your same-sex partner and sent compromising pictures from your cellphone to your husband.
[21] Thereafter, your husband’s family became angry about your bi-sexuality and having advised the King, the claimants were each ordered to undergo a ritual cleansing through the imposition of FGM upon the minor female claimant, facial and chest incisions upon the minor male claimants and facial and genital incisions upon the principal claimant.
[22] When the principal claimant refused to attend to the appointed place for the ritual, representatives of the community attended at the home of the principal claimant, beating her and torturing her by the application of a hot iron to her abdomen and by lashing her legs with cables.
[23] The claimants fled to [XXX], where, after three weeks, the story of these events followed them and their host asked them to leave.
[24] Hence, the fled to [XXX], where the principal claimant received threatening phone calls from the agents of persecution.
[25] Thereafter, the claimants fled to Canada.
[26] I, therefore, find that your subjective fear is established by your credible testimony and the corroborating documentary evidence and I believe what you have alleged, on a balance of probabilities.
[27] I find that the agent of persecution in this case is the extended family of the husband of the female claimant, the principal claimant and the broader Nigerian community in which same-sex relationships are illegal and homophobia is the prevailing attitude.
[28] You have testified that your mother has since been beaten by representatives of your extended family in an attempt to discover your whereabouts.
[29] Your testimony is consistent with the objective documentary evidence. Exhibit 3 consists of relevant extracts of the National Documentation Package for Nigeria. At Tab 3.2, the country conditions reports confirm that, state sponsored homophobia exists in Nigeria.
[30] At Tab 5.28 and 6.12, the country conditions reports confirm the prevalence of FGM.
[31] The foregoing country conditions report is consistent with the personal experiences reported by the claimant, principal claimant.
[32] Although the country conditions reports do not specifically address the ritual mutilation ordered for the male, minor claimants, I found the testimony of the principal claimant on that matter to be compelling, consistent and credible. I am satisfied, on the basis of her testimony, that this threat did actually occur.
[33] The principal claimant’s testimony, I found, to be credible overall. It was given directly. It was broadly consistent. There were no inconsistencies that went to the heart of the claim.
[34] I find the events as described did, in fact, occur.
[35] Based on your personal circumstances, as well as, the objective country documentation, I find that you have rebutted the presumption of state protection. The country conditions reports confirm that, as a bi-sexual woman, the principal claimant would be persecuted through Nigeria.
[36] The country conditions reports confirm that the position of the police forces with respect to the enforcement of traditional norms, such as, FGM and ritual mutilation is to regard it as a family matter, rather than as a police matter.
[37] State protection is not available for you.
[38] I have also considered whether a viable internal flight alternative exists for you. The evidence shows that with respect to the persecution of a particular social group, the State is itself the agent of persecution with reach throughout the country and a motivation to pursue the principal claimant.
[39] I find that the test fails on the first prong with respect to her.
[40] With respect to the minor claimants, I find that the claimants were unsuccessful in hiding in [XXX] and that the agents of persecution would able to confirm the presence of the claimants in [XXX].
[41] Their willingness to harm the principal claimant’s mother in order to locate the claimants, demonstrates, on a balance of probabilities, that the agent of persecution has the motivation and the reach to find the claimants in Nigeria.
[42] In all the circumstances, I find the claimants have no reasonable flight alternative within Nigeria.
[43] Based on the totality of the evidence, I find the claimants to be Convention refugees and I accept their respective claims.
[44] Thank you.
[45] So, we are off the record.
[46] Returning to the record for just a moment to confirm that I have returned the original documents to Counsel.
[47] Thank you very much.
——— REASONS CONCLUDED ———-