TC0 04655

RAD File / Dossier de la SAR : TC0 04655 TC0 04656 / TC0 04657 / TC0 04658 TC0 04659 Private Proceeding / Huis clos 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 XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision January 26, 2021 Date de la décision Panel Caitlin Maxwell Tribunal Counsel for the person|s who is|are the subject of the appeal Kingsley Jesuorobo Barrister & Solicitor Conseil de la|des personne|s en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] These are my reasons for granting the appeal of XXXX XXXX XXXX ("Principal Appellant") and her minor children XXXX XXXX XXXX, XXXX XXXX XXXX, and XXXX XXXX XXXX ("Minor Appellants"), who are citizens of Nigeria. I am substituting a decision that the Appellants are Convention refugees. XXXX XXXX XXXX, the Principal Appellant's youngest child, is a citizen of both Nigeria and the United States and has not advanced a claim against the latter. Her appeal is dismissed. [2] The family claims a fear of persecution in Nigeria based on the Principal Appellant's sexual orientation. She alleges that her long-term relationship with a female friend was discovered by her sister-in-law in XXXX 2014, and that she was beaten and outed in the community as a result. She further alleges her in-laws insisted on performing cleansing rituals, and that the police have sought her since her arrival in Canada. [3] The RPD determined the claim was not credible. On appeal, the Appellants argue that the panel erred in its assessment of the evidence. SCOPE OF THE APPEAL [4] Generally, I must review a decision of the RPD on a standard of correctness.1 The exception to this rule is where the RPD enjoys a meaningful advantage in assessing the credibility of oral testimony, which may attract deference in particular cases.2 In this case, however, the RPD had no advantage. I have therefore considered whether its decision was correct. [5] It is not necessary for me to consider the new evidence submitted by the Appellants on appeal, because I find the record before me sufficient to grant Convention refugee status. ANALYSIS [6] The determinative issues on appeal are the credibility of the Principal Appellant's sexual orientation, as well as a lack of state protection and viable internal flight alternatives ("IFAs") available in Nigeria. a. Youngest Appellant's appeal dismissed [7] In cases where a refugee claimant can safely return to one of their countries of citizenship, the claim cannot succeed.3 As noted above, Osayi Denise Idehen, the Principal Appellant's youngest child, is a citizen of both the United States and Nigeria. Because a claim has not been advanced against the US on her behalf, her appeal must fail. The family reunification objective of the Immigration and Refugee Protection Act is achieved by allowing protected persons in Canada to include their family members in their applications for permanent residence.4 The Appellants may pursue this option to remain united in Canada. b. Sufficient credible evidence to establish Principal Appellant's sexual orientation RPD was overly microscopic in its assessment of first same sex relationship [8] I agree with the Appellants that the RPD was overly microscopic in its credibility assessment with respect to the Principal Appellant's first same sex relationship. The panel faulted the Appellant for being overly vague. Having reviewed the testimony, and bearing in mind the Chairperson's SOGIE Guideline,5 I find the Principal Appellant was able to answer questions about her partner in university with a sufficient level of detail. [9] The panel also drew a negative inference based on the Principal Appellant's initial testimony that she did not know what her partner was going abroad to study after graduation, and her later statement that she believed she was going to study law. The Principal Appellant explained at the hearing that she did not know for sure what her partner went on to study, but she knew she wanted to study law. I accept this explanation as reasonable, and do not draw a negative inference from the Principal Appellant's lack of concrete knowledge as to what her partner went on to study. Given their young age at the time of the relationship and the fact that they lost touch following graduation, I do not find this unreasonable. [10] On a balance of probabilities, I accept that the Principal Appellant was in a same sex relationship during university. Credibility concerns re November 2014 incident not determinative [11] The RPD also took issue with the Principal Appellant's evidence regarding the discovery of her sexual orientation by her sister-in-law and community members. The Principal Appellant alleged that her sister-in-law, who was staying at the family home, discovered her in a moment of intimacy with her long-term same sex partner. The Principal Appellant described the crowd who gathered at the house as consisting of two neighbours and some youths. The panel drew a negative inference because the Principal Appellant did not indicate her partner's cousin was in attendance but had provided a statement from him indicating he was there. The Principal Appellant also indicated she did not know the cousin was there until she read his statement. She testified she had spoken on the phone with him about providing evidence in support her claim, but could not say whether they had spoken about the incident. She also indicated that she had not followed up with him upon learning he was a witness. The panel did not accept this as credible. [12] I agree with the panel that it was reasonable to expect the Principal Appellant to be able to name her partner's cousin as a witness to the event if she was providing evidence specifically indicating he was there and to expect her to have discussed the incident with him when they spoke on the phone. Nevertheless, I am mindful of the XXXX XXXX on the record which diagnoses the Principal Appellant with XXXX and specifically notes she has trouble recalling details.6 Given this was a particularly traumatic event, and considering other corroborative evidence was provided,7 I do not think this is sufficient to undermine the credibility of the incident as whole. I also find the RPD's conclusion that the Appellant would have followed up with the cousin after learning he was a witness to the incident was a plausibility finding not made in the clearest of cases.8 [13] While the RPD found the cousin's statement most likely fraudulent because of a document in the National Documentation Package ("NDP") which suggests that individuals would not provide such a statement given the risks involved, I do not interpret this document to mean that no one would ever provide a statement in support of an LGBTQ friend or relative.9 While such statements may not be common and there may not be a need for them domestically, it is not clear whether any of the sources considered whether one would provide such a statement in the context of refugee proceedings abroad. [14] I appreciate that given widespread homophobia in the country and the criminalization of LGBTQ activities, there are certainly risks involved, but this does not mean such statements are necessarily fraudulent. Moreover, not all notaries would necessarily be anti-LGBTQ. Credibility concerns re Benin City not determinative [15] The RPD also noted evidence placing the Principal Appellant in Benin City after she allegedly fled to Abuja for her safety; however, I do not find these concerns sufficient to undermine the credibility of her sexual orientation. [16] While I agree with the RPD that the issuance of the Principal Appellant's passport in Benin City calls into question her evidence that she was staying in Abuja at that time given evidence in the NDP which indicates one has to attend in person for a passport renewal,10 it is not out of the question that a bribe facilitated the process. The Principal Appellant simply indicated that her husband had taken care of it, and she did not know the details. The same document in the NDP notes the presence of corruption at local passport offices.11 While the panel also noted that the Principal Appellant's work history placed her in Benin City until her departure from Nigeria, the Principal Appellant explained at the hearing that she spoke to her manager and had arranged to go on leave, which is a plausible explanation. There was also evidence on the record placing the Principal Appellant in Abuja, including an affidavit from the friend she stayed with12 and the US biometrics, which indicate she was fingerprinted for her US visa in Abuja.13 On a balance of probabilities, considering the totality of the evidence, I accept that she was in Abuja as alleged. [17] Ultimately, even if the Principal Appellant had failed to establish that her second same sex relationship was discovered as alleged, there is still sufficient credible evidence to establish her profile as a bisexual woman on a balance of probabilities. c. Risk established on a Convention ground [18] For the following reasons, I find that the Appellants are Convention refugees on the basis of their membership in a particular social group. For the Principal Appellant, bisexual women; and for the Minor Appellants, family members of bisexual women. [19] The objective evidence indicates that LGBTQ individuals face persecution in Nigeria. For example, same-sex marriage is illegal, as is any form of promoting or supporting LGBTQ rights.14 The government has charged individuals under these laws.15 There have been reports of human rights violations of members of the LGBTQ community by both state and non-state actors, including torture, sexual violence, arbitrary detention, and extortion.16 As a result, I find that the Principal Appellant would face a serious possibility of persecution on the basis of her sexual orientation. This persecution is based on a Convention ground, as sexual orientation is a particular social group.17 [20] With respect to the Minor Appellants, the available evidence suggests that proxy arrests of family members and/or friends in lieu of the suspect themself remain a common practice in Nigeria.18 While the risk of this type of arrest may not be great, given that the test for Convention refugee status is more than a mere possibility of persecution, I find that this risk meets the threshold.19 Additionally, family members detained by the police on a proxy basis have reportedly been subjected to human rights violations, including torture.20 I find that these risks rise to the level of persecution, and are a result of the Minor Appellants' family status (as the family members of a bisexual woman), which constitutes a particular social group. This persecution is therefore based on a Convention ground. d. State protection and IFA are not available to the Appellants [21] Given that agents of the state persecute the LGBTQ community in Nigeria, neither state protection nor a viable IFA are available to the Principal Appellant. Similarly, as agents of the state have also been implicated in the persecution of family members of both wanted persons and LGBTQ individuals, the Minor Appellants also do not have access to adequate state protection or a viable IFA. CONCLUSION [22] For the reasons set out above, the appeal XXXX XXXX XXXX XXXX and her minor children XXXX XXXX XXXX, XXXX XXXX XXXX, and XXXX XXXX XXXX is granted. I substitute a decision that these Appellants are Convention refugees. [23] The appeal of XXXX XXXX XXXXXXXX is dismissed. I uphold the decision of the RPD that she is neither a Convention refugee nor a person in need of protection. (signed) "Caitlin Maxwell" Caitlin Maxwell January 26, 2021 Date 1 Canada (Minister of Citizenship and Immigration) v Huruglica, 2016 FCA 93, at para. 103. 2 Ibid., at para. 70. 3 Adereti v Canada (Minister of Citizenship and Immigration), 2005 FC 1263, at para. 16. 4 IRPA, at ss. 3(2)(f), 176(1). 5 Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, s. 7.6.1. 6 Exhibit RPD-1, RPD Record, Exhibit 8, Psychological assessment, p. 238. 7 Exhibit RPD-1, RPD Record, Exhibit 7, Statement from former partner's cousin, p. 225; Medical report, p. 231; Niece's affidavit, p. 223. 8 Valtchev v Canada (Minister of Citizenship and Immigration), 2001 FCT 776, at para. 7. 9 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Nigeria (29 November 2019), Item 6.10, IRB Research Direcorate, "Whether a Commissioner of Oaths or a notary public would notarize a statement or swear an affidavit in which an individual admits to being bisexual or homosexual, or to knowing of someone's sexual orientation; documentation taken by police upon ..." NGA105379.E, 7 January 2016. 10 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Nigeria (29 November 2019), Item 3.17, IRB Research Directorate, "?Update to NGA106186 on requirements and procedures to obtain an ePassport within the country and from abroad, including collection and verification of biometrics; appearance and security features; prevalence of fraudulent passports (2016-November 2019)," NGA106383.E, 12 November 2019, p. 5. 11 Ibid., p. 10. 12 Exhibit RPD-1, RPD Record, Exhibit 7, Friend's affidavit, p. 228. 13 Exhibit RPD-1, RPD Record, Exhibit 4, US Biometrics, p. 131. 14 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Nigeria (29 November 2019), Item 2.1, US Department of State, Country Reports on Human Rights Practices 2018: Nigeria, 13 March 2019, p. 41. 15 Ibid. 16 Ibid. See also, Item. 6.9, 2018 Report on Human Rights Violations based on Real or Perceived Sexual Orientation and Gender Identity in Nigeria, at p. 18; Item. 2.6, Amnesty International, 2017/2018 Report: The State of the World's Human Rights: Nigeria, 22 February 2018, pp. 6-7. 17 Canada (Attorney General) v Ward, [1993] 2 SCR 689. 18 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Nigeria (29 November 2019), Item 10.1, IRB Research Directorate, Response to Information Request NGA106375.E, "Whether the police in Nigeria detain family members of wanted persons, including sexual and gender minorities; the manner in which these persons are treated; legal recourse available to them (2016-November 2019)," 20 November 2019. 19 Ibid. 20 Ibid. --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-04655 TC0-04656 / TC0-04657 / TC0-04658 TC0-04659 RAD.25.02 (January, 2020) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January, 2020) Disponible en français