MB9-20831

Dossier de la SAR / RAD File : MB9-20831 MB9-20832 / MB9-20833 / MB9-20834 Huis clos / Private Proceeding Reasons and decision ? Motifs et décision Persons who are the subject of the appeal

XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision January 8, 2020 Date de la décision Panel Me Bianca Eleonora Suciu Tribunal Counsel for the persons who are the subject of the appeal Me Claude Whalen Conseil des personnes en cause Designated representative

XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre MOTIFS DE DÉCISION

INTRODUCTION [1] Mr. XXXX XXXX (principal appellant) and his wife XXXX XXXX XXXX (associate appellant) are citizens of Nigeria. Their minor children, XXXX XXXX XXXX and XXXX XXXX XXXX are American citizens. They appeal the decision of the Refugee Protection Board (RPD) rendered on 1 August 2019, rejecting their claims filed pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). [2] The principal appellant was appointed as the designated representative for his children for the purpose of their claims. The associate appellant and the minor appellants based their claims on that of the principal appellant.

OVERVIEW [3] The principal appellant alleges that his life and that of his family is at risk should they return to Nigeria, because of his sexual orientation. According to the appellant, he is wanted by the police and his uncle intends to subject him and his wife to ritual cleansing and cuttings because of his sexual identity. He also fears that his daughter will be subjected to genital mutilation. [4] The principal appellant discovered that he was bisexual at age 14 when he met XXXX in high school, with whom he had a romantic relationship for 11 years. He met his second partner XXXX in 2011, when they were both doing their XXXX XXXX XXXX. In order to avoid suspicions in his homophobic community, in 2006, the appellant dated a girl for a year. In XXXX 2008, the appellant started dating the associate appellant. The relationship, however, only lasted until XXXX 2009, when the associate appellant suspected that the principal appellant was in a relationship with a man. The principal appellant and the associate appellant decided to get married in XXXX 2014. The associate appellant accepted that her husband was bisexual and that he would continue having relationships with men. [5] On XXXX XXXX, 2014, the principal appellant found out that XXXX was arrested by the police because he was caught having sex with XXXX by a neighbour. XXXX managed to escape but XXXX was taken into police

custody and tortured. He was forced to confess that he had had a relationship with the principal appellant in the past. The police went to search for the principal appellant at his house in Lagos on XXXX and XXXX XXXX 2014, but he was in hiding. His neighbour told him that the police left a message that he reports to the police station. [6] The appellants escaped Nigeria on XXXX XXXX XXXX 2015, for the United States. While in the US, he was informed by XXXX that XXXX had died in police custody on XXXX XXXX 2015, because of the wounds sustained. [7] The minor appellants were born in the United States. [8] As their status in the United States was about to expire and because they were not successful in obtaining a US H1B visa, the appellants left the United States for Canada to ask for asylum. [9] The RPD found that the appellant was not credible as to his sexual orientation and with respect to the alleged same-sex relationships in Nigeria. The RPD also found that the appellant did not act like a person who fears for his life by abandoning the US H1B visa application in the United States and by risking deportation by coming to Canada. [10] The appellant submits that the RPD erred in the assessment of his credibility and in concluding that his behaviour in the United States was incompatible with his fear of persecution in Nigeria. The appellant asks the Refugee Appeals Division (RAD) to grant the appeal or to return the file to the RPD for a new examination. It leaves the RAD the discretion to hold a new hearing.

STANDARD OF REVIEW [11] The RAD is required to independently assess all the evidence and determine whether the RPD was correct in relation to each alleged error of law, fact or mixed fact and law. In exceptional situations, where the RAD finds that the RPD had a meaningful advantage it will defer to its decision and reasons will be provided in that situation. 1

DECISION [12] Based on my independent analysis of all the evidence on file, including the recording of the hearing, I disagree with the RPD's credibility assessment. I set aside the RPD's determination with respect to the principal appellant, which I find to be a Convention refugee. As to the associate appellant, I conclude that she has a viable IFA in Abuja. I confirm the RPD's decision with respect to the minor claimants, namely that they are not Convention refugees, nor persons in need of protection.

ANALYSIS Credibility [13] In assessing the credibility of the appellants, I have considered the Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.2 As to the claim of the principal appellant, Mr. XXXX XXXX XXXX [14] The RPD found that the appellant lacked credibility in establishing that he is bisexual because his testimony was "vague, lacking in details and evasive" as to how his relationships with his two partners in Nigeria transformed from that of a friendship to a romantic one3 and because he wasn't able to describe in sufficient details his lovers as individuals.4 [15] I disagree with the RPD's assessment. I found the appellant to be forthcoming and spontaneous in his testimony. I find that he testified with the same level of detail, whether he was talking about contentious issues or non-contentious issues. I am of the view that he provided a reasonable amount of details when speaking about how he met his partners, XXXX and XXXX, the things that they would do together and how his relationship with them evolved into a romantic one. [16] He explained that he realized he was attracted to men at 14 years old when he met XXXX in 2000 and they became friends. He understood that XXXX liked men because at one point XXXX had told him that his father had forced him to change schools because he caught XXXX kissing

another boy. The appellant described that the two of them got closer and closer that year. They used to spend a lot of time together, talking, studying, attending social events, spending the holidays together and in 2001 they become lovers. He explained that he loved XXXX because he was kind and a good listener. He trusted him with everything and he was a giver. He loved to watch movies and video games and they also played soccer together. [17] The appellant also described in a lot of detail in his BOC how he came to know XXXX, his becoming aware of his bisexuality and his relationship with XXXX. The appellant's testimony was concordant with his written account in all respects and was not contradicted by his wife's evidence. I therefore find that the RPD erred in drawing negative credibility inferences based on the evidence presented. [18] Furthermore, contrary to the RPD's conclusion at paragraph 21, the principal appellant explained that XXXX disclosed for the first time his affection towards the principal appellant in 2001 in his dormitory. He told the principal appellant that he loved him and "he showed me how to have sex". The principal appellant did not contradict himself on this point and the RPD erred by concluding otherwise. [19] Similarly, I find that the principal appellant provided a reasonable explanation of how he met his subsequent boyfriend XXXX, how he was as a

person and how their relationship evolved. Although the RPD may have wished for more details, I find that to be an insufficient reason, in this case, to put into doubt the principal appellant's credibility as to his sexual orientation and his relationship with XXXX. [20] I also find that the RPD erred in drawing an implausibility conclusion at paragraph 27. The panel stated: [21] The panel fails to understand how XXXX association with XXXX explains how the claimant became aware that XXXX was attracted to men or to the claimant specifically, given that the claimant had also explained that XXXX had not disclosed to XXXX that he was attracted to men at that time. [22] However, the principal appellant declared the following in his BOC: 15. XXXX never told me the real reason for the separation other than that XXXX father didn't welcome his association with XXXX. XXXX said he missed him so much because they never met after that incident. Coincidentally as I told XXXX about XXXX XXXX who joined my school from Port Harcourt, XXXX and I shockingly realized that we both were talking about the same XXXX. Right there and then, I found out that XXXX was the one XXXX was talking about back in XXXX XXXX.

16. It did not take time before we both understood our sexual orientation amongst other issues. As such, XXXX and I hooked up as same-sex partners. [23] The principal appellant was also consistent in his testimony about how he realised that XXXX was gay. I find that he RPD erred in drawing a negative credibility inference from this evidence. Lack of documentary evidence of the principal appellant's relationships with XXXX and XXXX [24] The RPD drew negative inferences of credibility from the lack of probative documentation, such as photos and emails of the principal appellant's relationships with XXXX and XXXX. The RPD rejected the two photos and the letter provided as non-probative of the principal appellant's bisexual relationship with the two men and rejected the principal appellant's explanation that he did not communicate by email, which was not so common then. [25] According to the President's Guidelines,5 a claimant's testimony may be the only evidence available in SOGIE cases. In this case, I have no reason to doubt the principal appellant's credibility and cannot therefore draw a negative inference from the lack of more probative corroborative evidence, such as emails, in a context where the internet was not common. According to the objective evidence, internet service in Nigeria was only available to 25.7% of the population as of 2016.6 It is reasonable to estimate

that the percentage of people with internet access was even lower at the time of the events in question. I agree with the appellant that the RPD erred by concluding otherwise. The lack of concern when he realized he was bisexual [26] The RPD drew a negative credibility inference from the fact that the principal appellant indicated that it made him feel good to discover that he was attracted to men, in a context where such behaviour is criminalized and stigmatised. [27] I agree with the principal appellant that it was not unreasonable for him to feel that way, while still being aware of the dangers of his sexual orientation in the context of Nigeria. The principal appellant indicated that it wasn't bothering him to discover that he was attracted to men, and that it felt natural to him; however, he knew that he had to keep that secret and away from the public eye since he could be killed for it. He also said that while being aware that his behaviour was outlawed in Nigeria, he was only 15 at the time and in love. I find that the RPD erred by rejecting the principal appellant's explanation and by drawing a negative credibility inference with respect to being bisexual. The adult appellants' immigration status in the United States [28] The RPD found that the adult appellants acted in a way that was incompatible with the risk that they allege they face in Nigeria, because they failed

to adequately follow-up on their US H1B visa application. [29] I disagree. Firstly, RPD erred as to the date on which the application was sent and delivered to the visa office in XXXX XXXX XXXX. According to the Fed Ex receipt, the visa application package sent to XXXX XXXX was delivered on XXXX XXXX 2018, and not after the XXXX XXXX 2018, letter which indicated that the visa office had no record on his filing. Secondly, the RPD further misconstrued the evidence on this point. I agree with the appellant that he did not testify that the package was sent to the wrong address, but only that he was informed that the office did not receive his application. [30] Finally, the appellant testified that while he was unsuccessful for applying for the USH1B visa, because the relevant office indicated that they had never received it, his student visa was valid until 2020 and at no point in time were they in the US without a legal status, which would have made them vulnerable to deportation in Nigeria. The RPD was not justified in drawing a negative credibility conclusion based on the principal appellant's behavior regarding their status in the United States. [31] In conclusion, I find that even in the absence of more probative documentary evidence related to the principal appellant's romantic relationships with XXXX and XXXX, the principal appellant was credible in establishing that he is a

bisexual man. His testimony was corroborated by that of his wife's and by his very detailed BOC. I am therefore of the view that should he return to Nigeria, the principal appellant will be subjected to a serious possibility of persecution on the basis of his sexual orientation, as explained below. State Protection and IFA [32] According to the documentary evidence same-sex relationships are a crime in Nigeria that can be punishable with death. Although it appears that prosecutions and sentencing are infrequent, there is a climate of severe intolerance and harassment towards LGBT, including from the police. Sources have documented a number of arrests of LGBT people, or those perceived to be. However, there are not accurate statistics on this and many people live in hiding to avoid police attention. Ninety percent of people who were polled support the criminalization of same-sex relationships.7 "LGBT persons may face societal discrimination and isolation, violence, blackmail and extortion, threats and hate speech, and, sometimes, mob attacks from non-state actors, including family and community members."8 [33] According to the objective evidence, where the person has a well-founded fear of persecution from the state, they will not be able to avail themselves of the protection of the authorities. Internal relocation is not viable if it depends on the person concealing their

sexual orientation and/or gender identity.9 [34] The principal appellant has testified that the police learned about his sexual orientation and they were actively looking for him before they left the country. He also fears his uncle who wants him to undergo invasive cleansing rituals. The principal appellant has further stated that he had a romantic relationship with a man while in the United States and he wishes to continue being a bisexual man and part of the LGBT community in Montreal. [35] I therefore conclude there is no adequate state protection for the principal appellant in Nigeria. Neither is there a possibility of internal relocation in Nigeria, where the principal appellant could live openly and safely as a bisexual man. As to the claim of the associate appellant, Mrs. XXXX XXXX XXXX [36] The associate appellant alleges that she fears returning to Nigeria, because the principal appellant's uncle would subject her to cleansing rituals that requires shaving off her body hair as well as genital mutilation. These practices are necessary according to the uncle in order to appease the gods because she is married to a bisexual man. [37] In order to assess the associate appellant's appeal, I considered it necessary to address whether it would be possible for her to relocate to Lagos or Abuja. The associate appellant was provided with the opportunity to make submissions on

this point, which she did on January 6, 2020. [38] The associate appellant submits that she would equally be subjected to persecution should she relocate to Lagos or Abuja because of the sexual orientation of her husband. She submits that it would be unreasonable for them to live in hiding and she cannot be required to leave him in order to escape persecution. [39] The test for determining whether there is an IFA is two-pronged. Firstly, the Board must be satisfied on the balance of probabilities that there is no serious possibility of the claimant being persecuted in the proposed IFA or being exposed to one of the risks enumerated in section 97 of the IRPA. Secondly, the condition in the proposed IFA must be such that it would not be objectively unreasonable in all circumstances, including those particular to the claimant, for them to seek refuge there. [40] The onus is on the claimant to demonstrate that no refuge is possible in a different part of the country before resorting to international protection. First prong-prospective risk in Abuja [41] I am of the view that the associate appellant could safely relocate to Abuja to escape persecution. [42] According to the country documentation internal relocation in Nigeria is generally considered to be viable for refugee claimants and appellants fearing non-state actors. Abuja is the capital of Nigeria and a major urban center

with a population of over 2 million respectively.10 [43] That being said, the prospective risk in the IFA must be analysed based on the individual circumstances of the claimant. In the case at hand, the associate appellant would not be returning to Nigeria with her husband. She would be living in a new city, where her circumstances as being married to a bisexual man are not known. As such she is unlikely to face retribution from society on the basis of her husband's sexual orientation. [44] The associate appellant also fears retribution at the hands of the principal appellant's uncle who she alleges would subject her to cleansing body incisions rituals. However, no evidence was presented that her uncle has the means or the capacity to find the associate appellant, should she relocate to Abuja. [45] I therefore conclude that the associate appellant has not established that she would face a serious possibility of persecution or that she would be exposed to a risk to her life, to torture or cruel and inhuman treatment or punishment because she is married to a bisexual man. Second prong-the reasonableness of the PRI [46] Finally, the associate appellant has not established that it would be unreasonable for her to move to Abuja and to maintain a livelihood there. The objective evidence indicates that it can be more challenging for a single woman, without male or family support or

contacts, to relocate in Nigeria given the high rate of unemployment and the economic discrimination faced by women. The economic situation and earnings of women are lower than those of men, specifically in the North-East of Nigeria.11 [47] At the same time, it is also noted that women who are educated and who live in urban areas are more likely to gain employment.12 The same source indicates that "[w]omen with secondary or even tertiary education have access to state and public institutions and more and more well-educated women are entering the expanding private sector (banking, insurance, private media, consultancies, etc.)".13 More specifically, with respect to the relocation of single women to Abuja, the evidence states as follows: Relocation in Abuja, Lagos, Ibadan and Port Harcourt could be "relatively difficult" for single women "because of the socio-cultural conditions in the country", especially if they have a low level of education or do not benefit from financial support. However, "professional women who are well educated may not experience [many] problems" and language may not be a problem since Pidgin English is commonly spoken. (Emphasis added) [48] While I accept that the appellant may experience a certain level of difficulty in relocating to Abuja and finding employment, I note that she is a highly educated woman who has achieved a certain status in the context

of Nigeria. The evidence shows that she has obtained a Bachelor in XXXX at the University XXXX XXXX XXXX XXXX14 and has started a master's degree in XXXX at the University XXXX XXXX.15 She held several jobs since, both in Nigeria and in the United States, namely as a XXXX XXXX for the XXXX in XXXX, as a XXXX XXXX XXXX XXXX XXXX in XXXX, Lagos and as an XXXX XXXX for XXXX XXXX XXXX, in XXXX XXXX XXXX, Nigeria. In the United States, the associate appellant worked as a XXXX XXXX XXXX XXXX XXXX in XXXX XXXX, and as a XXXX XXXX XXXX at the XXXX XXXX XXXX.16 [49] It is worth noting that the total years of education completed on average for Nigerian men is 9 years, whereas for women it is 8 years.17 As the appellant has achieved post-secondary education, she speaks Yoruba and English and has meaningful work experience, both in Nigeria and abroad, she is more likely to secure employment, than the average Nigerian. The associate appellant has not established otherwise. Neither has she established that her relocation would be unreasonable in any other respect. [50] The Federal court of appeal has set a very high threshold for the unreasonableness test. According to the Court: It requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in travelling or temporarily relocating to a safe area. ... This is in sharp contrast with undue

hardship resulting from loss of employment, loss of status, reduction in quality of life, loss of aspirations, loss of beloved ones and frustration of one's wishes and expectations.18 [51] I therefore conclude that the appellant has a viable PRI in Abuja. As to the claim of the minor children [52] The RPD found that no prospective risk has been established pursuant to section 96 or 97 of the IRPA as regards the return of the minor appellants in the United States, their country of nationality. The appellants have not contested this particular conclusion, which I find to be correct.

CONCLUSION [53] Pursuant to subsection 111(1)(a) of the IRPA, the RAD decides as follows: * with respect to the principal appellant, Mr. XXXX XXXX, it sets aside the RPD's determination and declares the principal appellant a Convention refugee; * with respect to the associate appellant, Mrs. XXXX XXXX XXXX, and the minor appellants, XXXX XXXX XXXX and XXXX XXXX XXXX, the RAD confirms the RPD's decision to the effect that they are not Convention refugees, nor persons in need of protection. [54] The appeal is partially granted. (signed) Bianca Eleonora Suciu Me Bianca Eleonora Suciu January 8, 2020 Date BES/tm 1 Minister of Citizenship and Immigration v. Huruglica, 2016 FCA 93 (Huruglica). 2 Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender identity and Expression, entered into force on 1 May, 2017 and available at https://irb-cisr.gc.ca/en/legal-policies/Pages/GuideDir09.aspx#a7_6 3 RPD's decision, paras. 19-21, 27. 4 RPD's decision, paras. 22-21; 5 Para. 7.2.1, 7.1. 6 National Documentation Package, Nigeria, 29 November 2019, tab 1.6: Nigeria. The World Factbook. United States. Central Intelligence Agency. 13 November 2019, p. 16. 7 National Documentation Package, Nigeria, 29 November 2019, tab 6.12: Country Policy and Information Note. Nigeria: Sexual orientation and gender identity or expression. Version 2.0. United Kingdom. Home

Office. April 2019, p.7. 8 NDP Nigeria, Item 6.12, p. 8. 9 NDP Nigeria, Item 6.12, p. 9. 10 National Documentation Package, Nigeria, 29 November 2019, tab 1.17: Country Policy and Information Note. Nigeria: Internal relocation. Version 1.0. United Kingdom. Home Office. March 2019, paras. 2.2.5, 3.2.2 11 National Documentation Package, Nigeria, 29 November 2019, tab 5.9: Whether women who head their own household, without male or family support, can obtain housing and employment in Abuja, Lagos, Ibadan, and Port Harcourt; government support services available to female-headed households (2017-November 2019). Immigration and Refugee Board of Canada. 20 November 2019. NGA106362.E, p. 2, 4, 7 12 Supra, NDP Nigeria, Item 5.9, p. 5. 13 Supra, NDP Nigeria, Item 5.9, p. 7. 14 IMM-5669, p. 121 of the RPD's file. 15 See the principal appellant's written narrative at p. 34 of the RPD's file. 16 IMM-5669, p. 121, 122 of the RDP's file. 17 National Documentation Package, Nigeria, 29 November 2019, tab 1.6: Nigeria. The World Factbook. United States. Central Intelligence Agency. 13 November 2019, p. 6, 7. 18 Ranganathan v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 16789 (FCA), para.15. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ Dossier de la SAR / RAD File : MB9-20831 MB9-20832 / MB9-20833 / MB9-20834 RAD.25.02 (04 avril 2019) Available in English 2 Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés Immigration and Refugee Board of Canada Refugee Appeal Division RAD.25.02 (04 avril 2019) Available in English