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2019 RLLR 9

Citation: 2019 RLLR 9
Tribunal: Refugee Protection Division
Date of Decision: November 19, 2019
Panel: C. Ruthven
Counsel for the claimant(s): Rasaq Ayanlola
Country: Nigeria
RPD Number: TB7-04392
Associated RPD Numbers: TB7-04402, TB7-04424, TB7-04425
ATIP Number: A-2020-01124
ATIP Pages: 000065-000074


REASONS AND DECISIONS

[1]       These reasons and decision are in regards to the claims for protection made by [XXX] (principal claimant), [XXX]1 (adult male claimant), [XXX]2 (eldest minor claimant), and [XXX] (youngest minor claimant).

[2]       Each is claiming protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act.3

[3]       The panel heard the claims jointly, pursuant to Refugee Protection Division Rule 55.4 The principal claimant was the designated representative for each of the two minor claimants.5

ALLEGATIONS

[4]       The principal claimant’s full allegations are set out in her Basis of Claim Form and related narrative.6 In summary, the principal claimant is a bisexual woman. She had three intimate female partners in Nigeria, prior to marrying the adult male claimant in [XXX] 2007.

[5]       On [XXX], 2016, the principal claimant restarted a sexual relationship with her third female partner, [XXX]. [XXX] was married, and residing with her husband and some of her male cousins. When [XXX] complained to her husband, [XXX], about her cousins’ criminal activities in their home, [XXX] set up hidden security cameras, unbeknownst to [XXX].

[6]       Upon reviewing his hidden camera footage on [XXX], 2016, [XXX] discovered the sexual relationship between his wife and the principal claimant. [XXX] called the principal claimant to confront her, and he informed the adult male claimant about the sexual relationship between their respective wives. When the adult male claimant and [XXX] spoke in person at [XXX] residence, the male claimant discovered that [XXX] had quickly been sent to [XXX] family home after the discovery of her adultery and sexual intercourse with the principal claimant.

[7]       Although disappointed in the principal claimant for her adultery, the adult male claimant did not want the principal claimant to be harmed by [XXX], his family, or homophobic members of the community. As such, the principal claimant and the two minor claimants relocated to the house of the principal claimant’s cousin, [XXX].

[8]       On [XXX], 2016, the adult male claimant was visited by two police officers, in the company of [XXX]. The adult male claimant was arrested, as an accomplice to the crimes related to the sexual orientation of the principal claimant. The adult male claimant was held at the [XXX] police station for two days, until he was released on the condition that he produce the principal claimant.

[9]       Instead of complying with his bond conditions, the adult male claimant went into hiding at a hotel in [XXX], and arranged for the four claimants to depart Nigeria. The claimants departed Nigeria on [XXX], 2016, and they each made their claims for protection in Canada the following month. The adult male claimant and both of the minor claimants rely on the narrative of the principal claimant.

DETERMINATION

[10]     The panel finds that the principal claimant is a Convention refugee, pursuant to section 96 of the Immigration and Refugee Protection Act, based on her membership in a particular social group, namely her sexual orientation as a bisexual female.

[11]     The panel further finds that there is sufficient nexus between the claim of the adult male claimant and the persecution of the principal claimant, and that there is sufficient nexus between the claims of each minor claimant and the persecution of the principal claimant.7

[12]     The adult male claimant faces a risk of criminal prosecution related to the perception of the authorities of Nigeria that he aided and abetted the principal claimant in evading prosecution, for crimes related to her sexual orientation. The minor claimants face risks related to spiritual cleansing rituals, at the hands of their family members in Nigeria.

[13]     As such, the panel finds that the adult male claimant, the eldest minor claimant, and the youngest minor claimant are each Convention refugees, pursuant to section 96 of the Immigration and Refugee Protection Act, as they each face a serious possibility of persecution due to membership in a particular social group, family members of the principal claimant.

ANALYSIS

Identity

[14]     The panel finds that all four claimants have established their identities as nationals of Nigeria, each based on a balance of probabilities. Each claimant presented their Nigeria passport.8

Credibility

[15]     Based on the nature of the four claims, the panel carefully considered the contents of Chairperson’s Guideline 9: Sexual Orientation and Gender Identity and Expression,9 during both sittings of the hearing, and while rendering the decision.

[16]     The panel is mindful that section 8.3 highlights that persecution may be faced by individuals who provide support for persons with diverse sexual orientation (or diverse gender identity and expression). In addition, family members of individuals with perceived diverse sexual orientation (or perceived diverse gender identity and expression) may also have a nexus to a Convention ground.

[17]     The panel finds that the principal claimant testified at the hearing in a straightforward and consistent manner, without the use of embellishments, contradictions, or omissions from the details which were presented when she made her claim for protection.

Sexual Relationship with [XXX] in Canada

[18]     The panel finds that the principal claimant and the witness each provided spontaneous testimony regarding the development of their intimate relationship in Canada, at the July 8, 2019 sitting. The panel also finds that this separate testimony from each intimate partner was also consistent with the relationship details that were presented in the letter signed by the witness, in advance of the July 8, 2019 sitting.10

Participation with the LGBTIQ Community in Canada

[19]     In support of the principal claimant’s participation in the Lesbian, Gay, Bisexual, Trans, Intersex, and Queer (LGBTIQ) community during her time in Canada, she presented two photographs depicting an indoor gathering,11 eight photographs depicting her attendance at a Pride festival,12 an [XXX], 2017 letter signed by a coordinator at The 519 Community Centre,13 as well as an [XXX], 2017 letter and a [XXX], 2019 letter signed by leaders of the [XXX] Community Church of Toronto.14

[20]     Although participation in LGBTIQ community groups in Canada is generally open to anybody who wishes to join and participate (including The 519 Community Centre and the [XXX] Community Church of Toronto), the panel finds that the testimony of the principal claimant, the testimony of the witness, and the presented written evidence provided support for the central allegations which were made by the principal claimant, in regards to her sexual orientation.

[21]     Based on the above considerations, the panel finds the principal claimant to be credible in the core elements of her claim, namely that she is a bisexual woman.

Objective Basis of the Claim

[22]     The overall objective evidence supports the claim for Convention refugee protection for the principal claimant based on her membership in a particular social group, namely her sexual orientation as a bisexual woman.

[23]     The overall objective evidence also supports the claims for Convention refugee protection for the adult male claimant and each minor claimant, based on their membership in a particular social group, namely family members of a bisexual woman.

Treatment of Bisexuals in Nigeria

[24]     Consensual female with female relationships are criminalized in Nigeria. The Same Sex Marriage Prohibition Act, enacted in the month of January 2014, effectively renders illegal all forms of activity supporting or promoting LGBTIQ rights.15 Any sexual orientation that is not heterosexual is considered to be unnatural, demonic, and immoral in Nigeria.16

[25]     The government brought formal charges for the first time last year. Anyone who is convicted of aiding and abetting 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’ imprisonment.17

[26]     As a result of the referenced country condition documentation from the National Documentation Package, the panel finds that the principal claimant and the adult male claimant have each established an objective basis for their claims (as a bisexual woman and as the spouse of a bisexual woman), and that their respective fears are well-founded.

Ritual Practices in Nigeria

[27]     In Nigeria, there are some ritual practices that dehumanize, deprive, and economically dispossess the victims. The custodians of cultural or traditional rites ultimately determine the fate of the individual who is undergoing ritual practices. Nigerian police officers appear to be discriminatory in their treatment of victims of ritual practices. Prosecutions for ritual practices are rare, and police protection relies on influence and financial resources.18

[28]     The adult male claimant testified at the October 16, 2019 sitting that he expects that the two minor claimants would be subjected to ritual cutting, based on their descent from the principal claimant. The panel finds that the testimony established that, on a balance of probabilities, that ritual practices were performed in family of the adult male claimant and that members of his family would be motivated to perform these cutting rituals on the two minor claimants.

[29]     The eldest minor claimant is eleven years old and the youngest minor male claimant is eight years old.19

[30]     The panel notes the widespread problem of violence against children in Nigeria. Aside from physical violence endured by half of children, approximately 60% of children under the age of eighteen experienced some form of emotional, sexual, or physical violence in Nigeria.20

[31]     In consideration of these ages (in regards to granting consent), and in consideration of the unregulated nature of ritual practices in Nigeria, the panel finds that the evidence adduced has established that it is more likely than not that the described cutting rituals cross the threshold into violence against children, and that undergoing these type of rituals might have a material impact on the life or on the health of each minor claimant.

[32]     In addition to the above, the panel finds that the risk of harm to each minor claimant is directly tied to the sexual orientation of their mother, the principal claimant. As such, the panel finds that each minor claimant, as a family member of the principal claimant, has established an objective basis for their claim, and that their fears are well-founded.

State Protection

[33]     LGBTIQ individuals in Nigeria often do not report acts of violence to the police.21 Given the illegal nature of same-sex intercourse in federal legislation, the panel finds it unreasonable to expect the principal claimant to seek redress or protection from the police or any other authorities in Nigeria.

[34]     The adult male claimant also fears the authorities in Nigeria. In light of the referenced country condition evidence, the panel finds that it would also be objectively unreasonable for the adult male claimant, in his particular set of circumstances, to seek the protection of the authorities in Nigeria.

[35]     The panel finds that the principal claimant and the adult male claimant have each rebutted the presumption of state protection with clear and convincing evidence of the state’s inability to protect them. The panel finds that on a balance of probabilities, adequate state protection would not be available to the principal claimant or to the adult male claimant, should they return to Nigeria.

[36]     Given the limited nature of police protection for those without influence or financial resources who face ritual practices in Nigeria, as well as the lack of prosecutions against perpetrators in the court system, the panel finds that each minor claimant has also rebutted the presumption of state protection with clear and convincing evidence of the state’s inability to protect them, in their particular sets of circumstances.

Internal Flight Alternatives

[37]     With regards to possible internal flight alternatives for the principal claimant and the adult male claimant in Nigeria, given that federal laws criminalizing same-sex relations and the enumerated violence against the LGBTIQ community are each applicable throughout Nigeria, the panel finds that there is a serious possibility of persecution throughout Nigeria for both the principal claimant and the adult male claimant.

[38]     The panel finds that a viable internal flight alternative does not exist for either adult claimant in Nigeria, as the state and police are their agents of persecution.

The Two Minor Claimants

[39]     The principal claimant testified at the July 8, 2019 sitting that the two minor claimants would also face constant harassment, based on her own sexual orientation. In consideration of the current country condition evidence, the panel finds this testimony to be reasonable. The panel considered this harassment (from homophobic members of society) in conjunction with the adult male claimant’s testimony regarding risk of harm faced by each minor claimant from ritual practices.

[40]     The panel finds that, on a balance of probabilities, there would be no family member protection for either minor claimant in any part of Nigeria. As such, the panel finds that a viable internal flight alternative does not exist for either minor claimant in Nigeria.

CONCLUSION

[41]     The panel finds that there is a serious possibility that each of the four claimants face persecution in Nigeria.

[42]     The panel concludes that the principal claimant is a Convention refugee based on her membership in a particular social group, namely her sexual orientation as a bisexual woman, pursuant to section 96 of the Immigration and Refugee Protection Act.

[43]     The panel also concludes that the adult male claimant and both minor claimants are Convention refugees, as they are each members of a particular social group, namely family members with a sufficient nexus to the principal claimant, a person with a serious possibility of persecution in Nigeria.

[44]     The panel therefore accepts all four claims.

(signed)           C. Ruthven

November 19, 2019

1 Born [XXX], 1977.
2 Born [XXX], 2008.
3 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1).
4 Refugee Protection Division Rules, SOR/2012-256.
5 Confirmation of acceptance to act as designated representative, signed April 13, 2017.
6 Exhibit 2.
7 Tomov, Nikolay Haralam v. M.C.I. (F.C., no. IMM-10058-04), Mosley, November 9, 2005; 2005 FC 1527.
8 Exhibit 1.
9 Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Guidelines issued by the Chairperson pursuant to paragraph 159(l)(h) of the Immigration and Refugee Protection Act, IRB, Ottawa, May 1, 2017.
10 Exhibit 20.
11 Exhibit 23.
12 Exhibit 23.
13 Exhibit 8.
14 Exhibit 8 and Exhibit 20.
15 Exhibit 7, National Documentation Package (NDP) for Nigeria (20 August 2019), item 6.1.
16 Exhibit 7, NDP for Nigeria (20 August 2019), item 6.7.
17 Exhibit 7, NDP for Nigeria (20 August 2019), item 2.1.
18 Exhibit 7, NDP for Nigeria (20 August 2019), item 10.8.
19 Exhibit 1, Exhibit 2, Exhibit 3, Exhibit 5, and Exhibit 6.
20 Exhibit 7, NDP for Nigeria (20 August 2019), item 2.1.
21 Exhibit 7, NDP for Nigeria (20 August 2019), item 6.1.