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2019 RLLR 35

Citation: 2019 RLLR 35
Tribunal: Refugee Protection Division
Date of Decision: October 29, 2019
Panel: Isis van Loon
Country: Nigeria
RPD Number: VB8-04562
Associated RPD Number(s): VB8-04561, VB8-04579
ATIP Number: A-2021-01124
ATIP Pages: 000196-000202


— DECISION

[1]       PRESIDING MEMBER: [XXX], the adult claimant and her two children, [XXX] and [XXX], the minor claimants, citizens of Nigeria are seeking refugee protection pursuant toss. 96 and 97(1) of the Immigration and Refugee Protection Act.

[2]       I maintained the designation of [XXX] as the representative for the two minor children, pursuant to s. 167 of the Act and Rule 20 of the Refugee Protection Division Rules. These claims were joined according to Rule 55 of the Refugee Protection Division Rules. In assessing this case, I have considered the Chairperson’s Guidelines on proceedings before the IRB involving sexual orientation and gender identity and expression to ensure that appropriate accommodations were made in questioning the claimants, in the overall hearing process and in substantively assessing the claim.

ALLEGATIONS

[3]       The adult claimant alleges that she is bisexual and that she and her two children, the minor claimants will be persecuted for this reason if they return to Nigeria.

DETERMINATION

[4]       I find that the adult claimant is a Convention refugee. The minor claimants are neither Convention refugees nor persons in need of protection as defined under 97(1).1

ANALYSIS

[5]       The determinative issues in this case, in the case of the adult claimant was credibility, and in the case of the minor claimants the determinative issue is whether or not they had a well-founded fear of persecution.

Identity

[6]       I find the claimants’ identities as nationals of Nigeria are established by their testimony and the supporting documentation filed including certified true copies of their passports in Exhibit 1.

Credibility

[7]       When a claimant swears to the truthfulness of certain facts there is a presumption that what the claimant has said is true unless there is sufficient reason to doubt its truthfulness. The adult claimant was straightforward. There were no relevant inconsistencies in her testimony or contradictions between her testimony and other evidence before me. She provided details of her sexuality and how she has come to accept herself for who she is. I found the claimant to be a credible witness and, therefore, believed what she alleged in support of her claim. The minor claimants did not testify.

[8]       The claimant provided the following relevant — the adult claimant provided the following relevant and probative documents:

[9]       An affidavit and a letter from her ex-husband’s friend which states that her family stayed with this friend for a few days before fleeing to the USA after she was accused of being a homosexual. The letter gives further details including the condition which the adult claimant was in when her husband brought her to this friend’s house. The friend included copies of his identification; this is all in Exhibit 4.2.

[10]     There was an affidavit and a letter from her ex-spouse’s employee as well. This employee states that the claimants were travelling to the USA to escape persecution for a homosexual offence. This employee said that they witnessed the events at the claimant’s home on [XXX], 2017. He said that the adult claimant was found in the act with a fellow lady, which is against the law. Both women were beaten and the fellow lady was sent to hospital and later confirmed to be in a coma. He assisted the adult claimant’s ex-spouse to help her escape. The police were looking for the adult claimant as were the neighbours. This letter states that the police and the neighbours will persecute her if she returns to Nigeria and the employee did include a copy of his identification as well on Exhibit 4.

[11]     Finally, in Exhibit 4, there’s a letter from a [XXX] dated [XXX], 2017. This lists first aid and treatment administered for severe body pain, arm bruises, lower abdominal pain, severe headache, minor eye and ear pain sustained from an attack.

[12]     I found these documents were relevant and served to corroborate the principal claimant’s core allegation that she has been persecuted due to her bisexuality.

Nexus

[13]     I find that the persecution the adult claimant faces has a nexus to one of the five Convention grounds; that of membership in a particular social group as a bisexual. The minor claimants have a potential nexus as membership in a particular social group; children of a women persecuted for a Convention ground. I note the minor claimants have made no allegations — or, there have been no allegations that the minor claimants are being targeted for any 97 reason, or that they’ve been at any personal targeted risk of harm under s. 97(1).

Well-founded Fear

[14]     In order to be considered a Convention refugee, claimants must demonstrate that they have a well-founded fear of persecution including both a subjective fear and an objective fear, as well, it needs to be forward-looking.  Based on the adult claimant’s testimony and supporting documents and the country condition documents I find the adult claimant has a well-founded fear of persecution; however, the minor claimants have not established a well-founded fear of persecution or a risk of harm under 97(1). My reasons follow:

[15]     The principal claimant alleges that she was discovered with another woman and assaulted on [XXX], 2017. She, her then-husband and the two minor claimants left the country on [XXX], 2017 for the USA as they already had visas. Shortly afterwards, She was separated from her husband and received a divorce on [XXX] of 2018. Unable to afford the expense of claiming asylum in the States and fearing Trump’s homophobic policies, she came to claim asylum with the minor claimants and with the permission of their father, her now ex-husband, came to Canada [XXX], 2018. I find by her timing and her actions that the claimants have educed sufficient credible evidence to establish that they have a subjective fear of persecution in Nigeria.

[16]     The adult claimant says,

“God does not make mistakes. That is how God created me, there are people like me in Nigeria, it was just unfortunate that I was caught.”

[17]     She described a somewhat fraught relationship with a woman named [XXX], a former schoolmate. Her ex-husband provided testimony as a witness over the phone. He confirmed that he knew [XXX], and he knew of his wife’s bisexuality. In fact, as the adult claimant had earlier testified, it was [XXX] who told him about the adult claimant’s bisexuality. He described the events of [XXX], 2017 which was consistent with that described in the basis of claim form by the adult claimant. He said that the cousin had called him from the house after discovering the two women together. He said that she’d been beaten and her clothes were torn and that he took her to a friend’s place. He expressed concern over the children and said that for this reason he took them all to the USA on [XXX] of 2017. He said they hadn’t been getting along for a while and they did divorce, and he expressed the hope that she could be accepted for the way that she is. I note that his testimony is consistent with that of the adult claimant, as well as the affidavits from his friend and his employee.

[18]     The country documentation is consistent with the adult claimant’s fear of persecution in Nigeria. The NDP 6.8 says that,

“The relatively new anti-gay law that was brought in has had a devastating effect on Nigeria’s LGBTI community. Although life was extremely difficult for LGBTI people before the law’s passage, and blackmail, extortion and violence against LGBTI people were common, the law significantly heightened LGBTI people’s vulnerability. Apart from the harsh criminal penalties it imposes, many interviewees stated that that the law has essentially declared open season on LGBTI people. The climate of fear, intimidation and violence created by the anti-gay law has led to numerous other human rights violations, threatening the right to free expression, literary and cultural freedoms, online expression, democratic participation and freedom of association.”

[19]     There was a recent survey at NDP 6.3 that found in 2017, 83% of persons polled would not accept a family member if they were homosexual. Nation wide, 90% of citizens support the same-sex marriage prohibition Act. 94% of those surveyed said that constitutional rights of freedom of association and assembly should be denied to LGBT persons. Another survey at NDP 6.5 found that 55% of the LGBT respondents surveyed reported being physically or sexually attacked or threatened with violence either at home or in the workplace in the past 10 years.

[20]     I find there is a serious possibility that the claimant would face persecution in Nigeria by both state and non-state actors for reason of her being a bisexual. Bisexuality is against the law in Nigeria, and in addition to homophobic laws that are on the books, homophobia is rampant in the country and that’s also well-documented in the National Documentation Package which shows that 90% of Nigerians believe the country would be better off without homosexuals. That’s NDP 6.3.

[21]     In terms of the minor claimants; the principal claimant said that her children would suffer societal discrimination as the children of an LGBT parent. Her ex-husband, who lives now in the USA, testified that he was concerned that they would be depriving his children of a mother if they had remained in Nigeria and she had gone to jail, and that this was why he had brought them all from Nigeria.

[22]     A response to information request — or, pardon me. A document at NDP 6.11 says that,

“Families disown family members who identify as sexual minorities due to the shame that the family members might face from society, their church and friends.”

[23]     Similarly, other sources explain that families of sexual minorities face stigmas; however, there are also cases where family members of sexual minorities face no risks at all. As such, it could be relative whether family members of sexual minorities face any risk from society, and it seems that whether or not family members of sexual minorities face risks depends on whether the person who is the sexual minority is public about their sexuality, is an activist who is widely known and whether the family members are openly in support of the person who is a sexual minority.

[24]     In this case, the adult claimant was not an activist and she was not open in public about her bisexuality, and her children are too young to have been publicly supportive and, therefore, their profiles do not fit those of family members who may face risks. I also note that they have a supportive father who is no longer in Nigeria and; however, because he is no longer in Nigeria and is not openly supportive, that does not put them at any risk, either. Thus, there is insufficient evidence before me to show children of LGBTI parents are at direct risk of harm.

[25]     Counsel did allege that children could be arrested to harass the adult claimant, but he was unable to provide any evidence and I gave his assertion little weight. So, in the end, as I said there is insufficient evidence before me to show the children of LGBTI parents are at any direct risk of harm, and in this case I also note that their father, who is no longer in Nigeria is supportive of these children, thus, I do not find that the minor claimants have a well-founded fear of persecution on a Convention ground, nor do they face a risk of harm as per 97(1).

[26]     So, based on all the evidence before me, I find the adult claimant would face a serious possibility of persecution by both state and non-state actors if she were to return to Nigeria; however, the minor claimants do not have a well-founded fear of persecution, nor face a risk of harm as understood under 97(1) if returned to Nigeria.

State Protection

[27]     Except in situations where the state is in complete breakdown, states must be presumed capable of protecting their citizens. To rebut this presumption, the onus is on the claimant to establish on a balance of probabilities through clear and convincing evidence that their state’s protection is not adequate.

[28]     In this case the agent of persecution, at least one of them, is the state and the persecution the claimant would face if returned to Nigeria is at the hand of the authorities. I find that the adult claimant has provided clear and convincing evidence that rebuts on a balance of probabilities any presumption of state protection. Accordingly, I find there is no state protection available to the principal claimant.

[29]     An internal flight alternative arises when a claimant who otherwise meets all the elements of the definition of a Convention refugee in their home area of the country, nevertheless, is not a Convention refugee nor a person in need of protection because they could live safely elsewhere in that country. There’s a legal test which has two prongs; I’d have to be satisfied on a balance of probabilities that the claimant would not face a serious possibility of persecution in the part of the country to which I have found an IFA existed and conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable in all circumstances including those particular to the claimant for her to seek refuge there.

[30]     The state of Nigeria is one of the agents of harm and it is in control of all of its territories, therefore, I find that the adult claimant faces a serious possibility of persecution throughout the entire country of Nigeria. There is no internal flight alternative for the adult claimant in Nigeria.

[31]     Based on the totality of the evidence before me I’ve concluded that the adult claimant is a Convention refugee and accordingly, I’ve accepted her claim. Similarly, based on the totality of the evidence before me I have concluded that the minor claimants are not Convention refugees, nor are they persons in need of protection under 97(1) and accordingly, have not accepted their claims.

— DECISION CONCLUDED

1 The recording of this oral decision is not available, it appears, because of a technical malfunction. Therefore, this written version is based not on a recording but on the notes used by the member in rendering her oral decision on the recording on November 1, 2019.