MB9-05808

RAD File / Dossier de la SAR: MB9-05808 MB9-05809 / MB9-05810 / MB9-05811 MB9-05812 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 November 26, 2019 Date de la décision Panel J. Pollock Tribunal Counsel for the persons who are the subject of the appeal Valerie Paquette Conseil des personnes 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] XXXX XXXX XXXX (the Principal Appellant), her husband, XXXX XXXX XXXX (the Associate Appellant), and their minor children, XXXX XXXX XXXX and XXXX XXXX XXXX (the Minor Male Appellants), and XXXX XXXX XXXX (the Minor Female Appellant), are all citizens of Nigeria. They allege a fear of the Associate Appellant's family members and the forced imposition of customary rites. They appeal a decision of the Refugee Protection Division (RPD), dated February 27, 2019, rejecting their claims. The Appellants argue that the RPD erred when it found their claims were not credible and they ask the Refugee Appeal Division (RAD) to substitute a positive determination or remit the matter to the RPD for redetermination. The Appellants have also made an application to submit new evidence in their appeal. However, I find that the proposed new evidence is inadmissible. After independently assessing all of the evidence, I find that the RPD did not err and that the Appellants' claims are not credible. [2] The RPD appointed the Principal Appellant as the minor Appellants' Designated Representative (DR) and this designation is deemed to continue for the appeal.1 DETERMINATION [3] The appeal is dismissed. The RAD confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection.2 BACKGROUND [4] The details of the Appellants' allegations are included in their Basis of Claim (BOC) forms and their amendments provided on the date of their hearing.3 In summary, they allege that the Minor Female Appellant faces a serious possibility of persecution upon return to Nigeria based on her particular social group, as an uncircumcised Yoruba female child. Specifically, that the Associate Appellant's father, a chief and retired politician, has demanded that she undergo Female Genital Mutilation or Cutting/Circumcision (FGM/C) before she reaches fifteen months. They allege that two demands were made: at her naming ceremony, on XXXX XXXX, 2016, and at her first birthday, on XXXX XXXX XXXX 2017. They further allege that the Associate Appellant's father demanded that the Principal Appellant confirm her own circumcision status with the family. They allege that the Minor Male Appellants face spiritual cleansing as the sons of an uncircumcised woman and the Associate Appellant faces harm from his father for having disobeyed his orders. The Principal Appellant and Associate Appellant both oppose the imposition of FGM/C. However, in a BOC amendment filed at their hearing, they allege that the Associate Appellant would yield to the demands. ROLE OF THE RAD [5] I am reviewing the RPD's decision on the standard of correctness as I do not find the RPD enjoyed a meaningful advantage in the assessment of oral testimony. 4 I have conducted an independent assessment of the evidence to determine whether, as submitted by the Appellants, the RPD erred.5 In conducting my independent assessment of the evidence I am mindful that the responsibility rests with the Appellants to raise any potential grounds of appeal that arise from the RPD decision.6 It is not the RAD's role to supplement an Appellant's arguments or come up with new ideas that might assist the Appellants in succeeding with their appeal.7 NEW EVIDENCE AND ORAL HEARING [6] After their appeal was perfected in April 2019, the Appellants wrote to the RAD on October 10, 2019 in order to request that a decision not be rendered in their appeal until after October 31, 2019, as "new evidence has arisen in their case."8 No details were provided about the nature of this new evidence. However, the RAD granted the Appellants until October 31, 2019 to make a Rule 29 application to submit this new evidence.9 The Appellants' proposed new evidence is attached to the Principal Appellant's affidavit, dated October 28, 2019, as follows: a. A copy of the Nigerian Driver's License belonging to the Principal Appellant's brother, T.A.;10 a declaration of T.A., dated XXXX XXXX, 2019; and a crime diary extract from the Nigerian Police following a report by T.A., dated XXXX XXXX XXXX 2019, accompanied by a DHL envelope; and b. A medical report from XXXX XXXX XXXX Hospital regarding T.A.'s injuries, dated XXXX XXXX, 2019, accompanied by a DHL envelope.11 [7] For evidence filed after the perfection of the appeal, I must consider Rule 29(4) of the Refugee Appeal Division Rules and factors such as whether the evidence is relevant and probative, new, or could not have been provided with reasonable effort with the Appeal Record.12 If the evidence meets the Rule 29 requirements I must consider subsection 110(4) of the IRPA. Subsection 110(4) provides that the persons who are the subject of the appeal may present only evidence that arose after the rejection of their claim, or that was not reasonably available, or that the persons could not reasonably have been expected in the circumstances to have presented at the time of the rejection of their refugee claims.13 If the proposed new evidence meets the requirements of subsection 110(4), I must assess, pursuant to Singh, the credibility, relevance, and newness of the evidence in order to determine whether it is admissible.14 All three of these Singh factors must be satisfied. The legislative requirements make it clear that evidence must be "credible and trustworthy in the circumstances in order to be admissible."15 [8] For the following reasons, I find that the evidence in item (a) is inadmissible as it lacks credibility and the evidence in item (b) is inadmissible as on its own it is not relevant. Having admitted no new evidence, I have no jurisdiction to convene an oral hearing.16 The declaration, Driver's License, police document, and envelope in (a) are inadmissible [9] The Appellants have submitted a declaration from the Principal Appellant's brother, T.A., which indicates that he and his mother have been threatened by the Appellants' agent of harm on four occasions in 2019.17 The declaration describes the agent of harm's demand that the Appellants appear so that FGM/C be carried out. The declaration goes on to describe a XXXX XXXX XXXX 2019 physical assault by the agent of harm during which T.A.'s XXXX was broken. The Appellants have also provided a copy of T.A.'s Nigerian Driver's License.18 In addition, they have provided a crime diary extract from the Nigerian Police, which describes the 2019 threats made by the agent of harm as well as the assault against T.A. committed by the agent of harm on XXXX XXXX XXXX 2019.19 The crime diary extract indicates that the report was made on XXXX XXXX XXXX 2019 and that it was taken in order to issue a police warning to the agent of harm. The Appellants have also tendered the DHL envelope used to mail this evidence from Nigeria to Canada.20 [10] Regarding Rule 29, I find that the content of the proposed new evidence arose after perfection and therefore could not have been provided with the Appellant's Record. I also find that this evidence, if accepted, is relevant, probative, and brings new evidence as to the agent of harm's alleged continuing interest in the Appellants. I find the evidence meets the requirements under Rule 29. I further find that the evidence post-dates the RPD's negative determination and therefore meets the requirements of subsection 110(4). However, I do not find the evidence meets the jurisprudential requirements in Singh as I do not find it to be credible having regard to the source and circumstances in which it came into existence. There are credibility concerns with the evidence in item (a) which makes it inadmissible [11] Counsel argues that the new evidence is credible because it is from government bodies in Nigeria, namely a High Court and a police station.21 I note that there is a rebuttable presumption that documents issued by foreign authorities are genuine.22 However, I find that there are irregularities on the face of the evidence which undermines its credibility and that, for the following reasons, the presumed credibility and reliability of this evidence has been rebutted. T.A. declaration [12] Counsel argues that T.A.'s declaration is credible because it was commissioned before the High Court of Lagos. However, T.A. has not signed above the line 'declarant.'23 This despite the fact that the document bears the stamp, seal and signature of a commissioner indicating that the document was sworn on XXXX XXXX, 2019.24 For the purposes of comparison, T.A.'s signature is visible on his Nigerian Driver's License.25 This signature does not appear above the line 'declarant' on the declaration. Instead, there is a tiny blue dot above the 'declarant' line. Nothing in evidence or in Counsel's Memorandum speaks to or comments on this irregularity. There are two identical signatures on the back of the declaration.26 The author of these signatures is not stated. The signatures are dated XXXX XXXX XXXX 2019, two days after the declaration was commissioned. [13] T.A.'s statement is referred to in the body of the document as a "declaration" as well as an "affidavit."27 The objective evidence specifically states that "an affidavit will carry 'the signature of the deponent, the signature of the Commissioner for Oaths/Notary that swore the document, and the seal/stamp of the court/Notary.'"28 The Nigerian Evidence Act at section 117(4) requires that "an affidavit when sworn shall be signed by the deponent or if he cannot write or is blind, marked by him personally with his mark."29 Where the declarant was prevented from placing his signature on the statement, the Nigerian Evidence Act at section 119(3) requires a 'mark' be applied and that "the jurat shall state that fact, and that the mark was made in the presence of the person before whom it was taken."30 No such reference is made in the jurat of the declaration before me.31 In addition, the declaration refers to the "Oath of Law 2003."32 However, there is no such law. Instead, there is a 2003 Nigerian Oaths Act.33 [14] I acknowledge that superficial errors should not be unreasonably focused on in assessing a document's credibility as "clerical errors are possible even in countries where public administration have access to vast resources."34 However, I do not find these irregularities to be mere clerical errors. The signature, stamp and seal of a notary public are security features added to a sworn statement. They confirm that the declarant has appeared before the commissioner or notary and has sworn or affirmed as to the contents of the statement. It is only after this happens that a document is signed, stamped and sealed by the notary or commissioner. It simply is not credible that two separate Nigerian authorities - commissioner Olabisi and notary public Doherty - would stamp and sign a document without it first being signed by the declarant. Moreover, while commissioner Olabisi includes the date of their seal and signature, no date accompanies the seal and signature of notary public Doherty. The Federal Court found in Morka that the RPD's rejection of an unsigned affidavit was reasonable, noting that such an anomaly is apparent on its face.35 I find that these irregularities undermine the credibility of the source and circumstances in which the declaration came into existence. The RAD is entitled to assess a document's irregularities in evaluating its credibility under the Singh factors.36 [15] I have also taken into consideration the security features present on the document, as well as the stamped photographs attached to the affidavit, and the DHL envelope addressed from someone other than T.A. to mail the evidence to Canada. However, I do not find that this resolves the credibility concerns as it does not explain why T.A. did not sign the declaration or why two Nigerian authorities signed the document in the absence of the signature of T.A. Nigerian crime diary extract [16] The Federal Court has found that where there is a relationship between documents supporting a claim, it is not unreasonable to take one document into account in the assessment of the other.37 The crime diary extract from the Nigerian Police bears the same seal and signature of notary public Doherty that is present on the declaration.38 It is unclear why this document, purportedly issued by the Nigerian Police, would bear the undated seal and signature of a Nigerian notary public. In contrast, the crime diary extract is stamped but unsigned by the police inspector.39 This is not in line with the two crime diary extract specimens in the objective evidence which have been signed by the police official in whose name the crime diary extract was produced.40 This undermines the credibility of the source and circumstances in which the crime diary extract came into existence. [17] Moreover, there are two identical signatures on the back of the crime diary extract.41 These signatures are identical to those that appear on the back of the declaration.42 The signatures are dated XXXX XXXX, 2019, over XXXX months after the crime diary extract was allegedly issued on XXXX XXXX XXXX 2019. The Principal Appellant speculates in her affidavit that this means that the crime diary extract "was finalized on XXXX XXXX, 2019."43 The author of these signatures is not stated. [18] In addition, part of the crime diary extract from the Nigerian Police is written from T.A.'s perspective, despite the fact that it purports to be the inspector's recounting of T.A.'s report. Specifically, the crime diary extract includes the following passage: "I waited on her response and after some minutes, she instructed me to go and report the matter to the police."44 This undermines the credibility of the source and circumstances in which the crime diary extract came into existence. While the contents of a complainant's affidavit may be included in the crime diary extract, I note that this passage is not quoted as an excerpt in the report. In addition, T.A.'s XXXX XXXX, 2019 affidavit is dated more than XXXX months after the report was made on XXXX XXXX, 2019 report and more than XXXX month after the date of the crime diary extract, XXXX XXXX XXXX 2019, and could not have been used as the basis for the drafting of the crime diary extract. [19] In addition, while not determinative, the language used in the declaration and crime diary extract are identical in multiple parts and contain the same errors in grammar: T.A. declaration Nigeria Police crime diary extract * XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX45 [sic] * XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX46 [sic] * XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX"47 * XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX"48 [20] I have taken into consideration the security features present on the document, including the stamps dated XXXX XXXX XXXX 2019, and the DHL envelope addressed from someone other than T.A. to mail the evidence to Canada. However, I do not find that this resolves the credibility concerns as it does not explain the absence of the inspector's signature, the drafting of the diary extract in parts from the perspective of T.A., or the similar language as between the declaration and the crime diary extract. [21] As I have credibility concerns regarding the source and circumstances in which the evidence in item (a) came into existence, I do not find it credible. I therefore find it inadmissible. The evidence in item (a) does not meet the requirements of 110(6) [22] Credibility is a consideration when: (1) assessing the admissibility of new evidence; and (2) assessing whether there is jurisdiction to convene a hearing. However, these two determinations are distinct and separate assessments that should not be conflated.49 [23] First, all potential new evidence must meet the criteria in 110(4) and Singh, which includes a credibility assessment. If the new evidence is credible for admission, in consideration of its source and the circumstances in which it came into existence, it then will be assessed to see if it meets the criteria for an oral hearing. A document that is lacking in credibility, even if it is related to an Appellant's credibility, does not trigger an oral hearing under 110(6). The legislation does not provide that an oral hearing should be held to determine whether new evidence is credible for admission, which would be circular, inefficient, and not in harmony with the intent to limit new evidence and oral hearings at the RAD or in accordance with the ordinary meaning of subsections 110(4) and 110(6). The RAD can only accept new evidence that is credible.50 The point of a RAD hearing is not to determine whether the new evidence is credible and therefore admissible, but rather to evaluate whether otherwise credible new evidence justifies a reassessment of the overall credibility of the claim.51 [24] The RAD may hold a hearing if the documentary evidence raises a serious issue of credibility regarding the Appellant, if it is central to the decision and would justify allowing or rejecting the person's refugee claim.52 In this case, the evidence described in (a) is not credible and therefore is not admissible. The evidence in (a) therefore does not meet the subsection 110(6) criteria and I do not have jurisdiction to hold an oral hearing. The medical report and envelope in (b) are inadmissible [25] The Appellants have submitted T.A.'s medical report indicating that he was treated for a XXXX XXXX on XXXX XXXX, 2019.53 In addition, they have provided the envelope from T.A. used to mail this evidence from Nigeria to Canada.54 [26] Regarding Rule 29, I find that the content of the proposed new evidence arose after perfection and therefore could not have been provided with the Appellant's Record. However, given that I have found the affidavit of T.A. and the police document not to be credible for the purposes of their admission as new evidence, I do not find that the medical report is relevant and probative to the agent of harm's alleged continuing interest in the Appellants. The medical report speaks to T.A.'s broken arm, but not the cause of the arm injury. Even had I admitted this medical report under Rule 29 and 110(4), I find that this evidence fails to satisfy the jurisprudential requirements in Singh as I do not find the evidence to be relevant to the Appellants' claim. The medical evidence establishes that T.A. suffered a XXXX XXXX on XXXX XXXX XXXX 2019 and the envelope establishes that T.A. mailed this medical report to the Appellants from Nigeria. However, the medical evidence and envelope on their own are not capable of proving or disproving a fact relevant to the claim. [27] Having not admitted the evidence in (b) I have no jurisdiction to convene an oral hearing. ANALYSIS Issues on appeal [28] The Appellants argue that the RPD erred, as follows: * In failing to give sufficient weight to the Principal Appellant's psychotherapy report; * In making a global credibility finding without properly assessing personal and country condition documentary evidence; and * In failing to conduct an independent and forward-looking assessment of the minor Appellants' claims. [29] In assessing whether there are valid reasons to doubt the Appellants' credibility, I am mindful of the difficulties in establishing a claim, including the special problems women refugee claimants may face in demonstrating that their claims are credible. In rendering this decision, I have considered and applied the Chairperson's Guideline 3 on proceedings involving child refugee claimants and the Chairperson's Guideline 4 on proceedings involving women refugee claimants fearing gender-based persecution.55 I am further mindful that the Principal Appellant has submitted a medical report confirming that she suffers from XXXX and a psychotherapy report which indicates that she "XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX" and also reported the following symptoms: crying, inability to concentrate, helplessness, forgetfulness, feeling unsafe, irritability, feeling angry towards her husband, and fear of her unknown future and insecurity; I accept that the Principal Appellant is exhibiting these symptoms.56 No medical evidence was provided with regard to the Associate Appellant regarding any cognitive and/or memory impairments. I have also taken into consideration the Principal Appellant and Associate Appellant's completion of post-secondary studies. They each read and understood their BOCs in English and testified before the RPD in English. [30] After listening to the RPD hearing audio-recording and independently assessing all of the evidence, I find that material discrepancies were not reasonably explained and that the presumption of truthfulness has been rebutted. I find that the RPD was correct in determining that there are valid reasons to doubt the truthfulness of the Appellants' evidence. Unchallenged credibility findings [31] The RPD found that the Associate Appellant's testimony about his family's FGM/C tradition was vague and materially inconsistent.57 The Appellants do not challenge these RPD findings and they remain uncontested on appeal.58 For the following reasons, and having independently assessed all of the evidence, I find that these RPD credibility findings are correct. Finding that testimony was vague and inconsistent is unchallenged by the Appellants [32] Having listened to the audio-recording of the RPD hearing, I note that there were several instances when the Associate Appellant failed to answer questions spontaneously. When he did eventually provide responses, his statements were vague, limited, contradictory, and evolving. Based on my own review of the problems identified by the RPD, I note the following: * The Associate Appellant alleges that his own family members are the agents of persecution and the performance of FGM/C is his own family's tradition. However, he could not provide spontaneous detail about: how the tradition was performed, beyond the use of unsanitary instruments; how the tradition was passed down in his family; why his family continues to circumcise female children; or who carries out the procedure.59 He was given multiple opportunities by the RPD and his own Counsel to provide further detail and was put on notice that the lack of detail was a concern for the RPD. * The Associate Appellant was unable to spontaneously or consistently testify about when his daughter's naming ceremony took place. The BOC narrative indicates that this event took place on XXXX XXXX, 2016 and that this is the event where his father announced that his daughter must undergo FGM/C and that "anyone that try to stop his forefathers belief will live to regret his or her life."60 However, in testimony he provided a variety of inconsistent answers: XXXX XXXX, 2016; XXXX XXXX, 2016; XXXX XXXX XXXX 2016, and XXXX XXXX XXXX 2016.61 When asked for an explanation he indicated he had made a mistake. * The Associate Appellant was unable to spontaneously or consistently testify about who his wife allegedly went to live with following the naming ceremony threat. The BOC narrative indicates that the Principal Appellant took the minor Appellants and went to live with her aunt and that it was after returning from her aunt's house that the Appellants decided they needed to apply for a United States (US) visa to flee the country.62 However, the Associate Appellant testified that she went to reside with her sister.63 When asked for an explanation he indicated that he was confused. * The Associate Appellant was unable to spontaneously testify about whether he received any threats from his father between when his spouse and children returned to the family home in XXXX 2016 and when the family applied for US visitor visas in XXXX 2016. His responses were evasive and he had to be asked multiple times.64 Initially, he testified that his father approached the family again during this period to demand that the Principal Appellant undergo FGM/C, an event which takes place on XXXX XXXX, 2017 in the BOC narrative, not between XXXX 2016 and XXXX 2016.65 The Associate Appellant eventually changed his answer after a period of silence and testified that he cannot remember whether there were any threats between XXXX 2016 and XXXX 2016.66 [33] I appreciate that refugee hearings are stressful and that recalling incidents that occurred two years in the past may be difficult. However, I do not accept the Appellant's explanation that he simply forgot this information or made a mistake. When considered cumulatively, these are not minor or peripheral details and they go to the heart of his allegation that his family has demanded that the Minor Female Appellant undergo FGM/C, the core of the Appellants' claim. I find that the RPD was correct when it found that the Associate Appellant's lack of knowledge about his own family tradition of FGM/C, as well as his inability to consistently testify about the first threat the Appellants received (at the naming ceremony), the event which precipitated their decision to seek a US visa in order to flee Nigeria (the Principal Appellants relocation to her aunt), and whether any threats took place between XXXX 2016 and XXXX 2016, undermines the credibility of the Appellants' allegations. As previously indicated, no medical evidence regarding any cognitive and/or memory impairments was provided to the RPD or on appeal to the RAD for the Associate Appellant. I find that this vague and inconsistent testimony significantly undermines the credibility of the Appellants' allegation that they were threatened by the Associate Appellant's family and that they face a serious possibility of persecution, or a personalized section 97(1) risk, upon return to Nigeria. Adverse inference based on a failure to claim in the US is unchallenged by the Appellants [34] The RPD further found that the Appellants' failure to claim asylum in the US over the XXXX months they remained there from XXXX 2017 to XXXX 2017, part of which they were without status and at risk of removal to Nigeria, undermined their credibility.67 The Appellants do not challenge this finding and it remains uncontested on appeal. No error perceptibly arising from the Record, I see no reason to find otherwise and I uphold this RPD finding. Little weight assigned to sister's affidavit is unchallenged by the Appellants [35] The RPD further found that an affidavit from the Principal Appellant's sister repeats allegations found not to be credible and accorded it minimal weight.68 The Appellants do not challenge this finding and it is uncontested on appeal. No error perceptibly arising from the Record, I see no reason to find otherwise, and I uphold this RPD finding. The Principal Appellant's psychotherapy report does not explain multiple interventions [36] The RPD found that the Principal Appellant was engaged in significant whispering during the Associate Appellant's testimony in order to help him answer questions, despite being cautioned multiple times by the RPD Member.69 As a result, the RPD drew an adverse inference as to her credibility. Counsel argues that the RPD Member failed to consider whether the Principal Appellant's inability to concentrate, irritability, and anger towards her husband impacted her multiple interventions, including whispering to the Associate Appellant, in testimony. Counsel also argues that the RPD erred when it limited its credibility assessment of the Principal Appellant to her demeanour alone. I find that both arguments are without merit. Psychotherapy report does not explain interventions in testimony [37] Having listened to the audio-recording of the RPD hearing, I confirm that the Principal Appellant was cautioned on no less than four occasions by the RPD for her interventions in the Associate Appellant's testimony.70 Counsel does not contest whether these interventions took place. Instead, Counsel argues that the RPD erred in failing to give sufficient weight to the Principal Appellant's psychotherapy report in assessing the impact that these interventions should have on her credibility. The RPD specifically considers the psychotherapy report in its Reasons, accepting that the Principal Appellant exhibits a high level of anxiety and a depressive reactive pattern, but finds that this report does not establish as credible the Principal Appellant's alleged traumatic experiences. The RPD is presumed to have considered all the evidence before it and I find that the Appellants have not rebutted this presumption. [38] While Counsel argues that the RPD erred in failing to undertake an assessment of the psychotherapy report's impact on the Principal Appellant's demeanour, no argument is provided about how this evidence reasonably explains the Principal Appellant's multiple interjections. The Principal Appellant gave evidence that she was angry when her husband testified.71 I appreciate that irritability and anger may be expressed differently by different people. However, upon my own independent assessment, I am not persuaded, on a balance of probabilities, that the Principal Appellant's inability to concentrate, irritability, and anger towards her husband explains her whispering to him in an attempt to help him answer questions. It is not the case that the Principal Appellant angrily interrupted the Associate Appellant; rather, she attempted to help him with his answers on multiple occasions. I find that the RPD did not err and that the Principal Appellant's repeated interventions undermine her credibility. The Federal Court has found that whispering between Co-Claimants during testimony can support a negative credibility inference.72 Demeanour alone was not determinative of credibility [39] Counsel also argues that the RPD erred when it limited its credibility assessment of the Principal Appellant to her demeanour alone. I find that this argument is without merit. The RPD was clear in its finding that the Associate Appellant's lack of credibility impacted all of the Appellants as these credibility concerns undermined the very core of their allegations - that his family had a family tradition of FGM/C and demanded the Appellants comply with the FGM/C demands. The harm feared by the Principal Appellant arises out of alleged threats from the Associate Appellant's family, which were found to lack credibility. When claims are joined and their allegations are connected, a finding of a lack of credibility with regard to one Claimant's testimony and evidence can have a negative impact on a joined Claimant.73 [40] It is not the case that the RPD had no reason to doubt the credibility of the Principal Appellant's allegations but for her repeated interventions. Rather, the Associate Appellant's lack of credibility with respect to the underlying allegations also undermined the Principal Appellant's credibility. This being the case, I find that the RPD did not err. Personal and country condition evidence do not establish the Appellants' claims [41] Counsel argues that the RPD erred when it made a global credibility finding without reference to: an affidavit from the Associate Appellant's brother, a death certificate of his niece, and country condition evidence. Having undertaken my own independent assessment, I find that the RPD did not err. Affidavit evidence and death certificate from B.O.74 [42] In his sworn affidavit, B.O. identifies himself as the Associate Appellant's brother and indicates that he lost his daughter "in complications arising from female circumcision here in Nigeria" and that he was so happy to learn that the Appellants obtained a US visa "because I do not want them to loose their daughter to barbaric act [sic]."75 Attached to this affidavit is a death certificate indicating that a child of one year and five months passed away from circumcision and bleeding on XXXX XXXX, 2012.76 Counsel argues that the RPD erred when it gave minimal weight to the affidavit of B.O. and the death certificate of B.O.'s daughter as it took no issue with their authenticity and these documents corroborate that FGM/C occurs in the Associate Appellant's family.77 Having undertaken my own independent assessment, I find that the RPD did not err. [43] The affidavit and death certificate corroborate the death of the Associate Appellant's brother's daughter from FGM/C. The performance of FGM/C is a violation of this child's fundamental human rights and its severity should not be minimized. However, this evidence is not probative as to why B.O.'s daughter underwent FGM/C, who required she undergo FGM/C, and whether, as alleged by the Appellants, she underwent FGM/C because of a family tradition demanded of female children. I appreciate that supporting documents should be taken for what they do say, and not for what they do not say, and as such I am not drawing an adverse inference on this basis or finding the documentation contradicts the Appellants' allegations. Rather, I have considered this evidence for what it does say.78 While attesting to the death of the Associate Appellant's family member by FGM/C, this evidence has little probative value regarding the alleged threats and FGM/C demands directed at the Appellants. Even accepting that the Appellants have a family member who passed away from FGM/C, this does not establish, on a balance of probabilities, the alleged FGM/C demands of the Associate Appellant's family, and does not establish a serious possibility of persecution, or section 97(1) risk, for the Appellants upon return to Nigeria. This being the case, I find that the RPD did not err. Objective evidence of FGM/C does not establish the Appellants' claim [44] Counsel argues that the RPD erred when it failed to consider objective documentation regarding the prevalence of FGM/C for uncircumcised Yoruba girls as well as the consequences for parents who refuse to subject their children to the procedure in Nigeria.79 Having conducted my own independent assessment, I find that the RPD did not err. [45] The RPD and the RAD do not question or doubt the prevalence of FGM/C in Nigeria. Moreover, while the RPD raised concerns about the objective basis for persecution arising from a parent's refusal to comply with FGM/C demands, no finding in the RPD Reasons was made on this issue. Rather, the RPD found that the Appellants failed to credibly establish that the Associate Appellant's family have demanded that the Minor Female Appellant and Principal Appellant undergo FGM/C or ever threatened the Appellants, as alleged. [46] Counsel points to the following objective evidence which she argues was ignored: 88.7% of Yoruba women have undergone FGM/C before the age of 5; in one case, a grandmother kidnapped a child to forcibly perform FGM/C without the knowledge of the child's parent; and girls may be ostracized, shunned, or assaulted by their family members or community if they have not undergone FGM/C.80 I note that other country documents suggest that FGM/C prevalence among Yoruba women is 54.5% and, given the decreasing prevalence of FGM/C over time, Nigerian women under 19 are less than half as likely to undergo FGM/C - at 15.3% - than women who are between 45-49.81 In addition, other sources in the objective evidence indicate that "'[i]n most' cases,' there would not be any consequences for a girl who does not undergo FGM" although she may be mocked or ostracized for a time.82 The alleged agents of persecution in this case are the Associate Appellant's father and family members. It was the prospective harm from these agents of persecution that was found to lack credibility. This being the case, the Appellants have not credibly established that they are similarly situated to persons in the objective evidence who face a serious possibility of persecution - including FGM/C - from their family members and kin. [47] Counsel also argues that the forcible performance of FGM/C on a child where the father and his family agree is important in the Appellants' case given that the Associate Appellant testified that he would yield to his family's demands.83 However, the Associate Appellant was found to lack credibility and, as previously indicated, Counsel has not challenged this credibility finding. This being the case, Counsel's argument is without merit. [48] In Caleb, the Federal Court determined that it is not an error for the RAD to give little weight to documentary evidence relating to FGM/C in Nigeria where the risk of FGM/C originating from family and kin is found not credible.84 Specifically, "the claimed fear here arises in the context of a threat from a discrete and identified family group rather than a government or a police force or society as a whole. Having concluded that the applicants lacked credibility and subjective fear in respect of the alleged threat from this discrete group, the RAD did not err in failing to consider whether there was an objective basis for their fear."85 This being the case, I find that the RPD did not err. Credibility is determinative of the minor Appellants' claims [49] Counsel argues that the RPD erred when it extended its global credibility finding about the Associate Appellant and Principal Appellant to the minor Appellants without independently assessing their prospective claims. Specifically, that the RPD expressed no doubt concerning (i) the fact that the Minor Female Appellant is not circumcised, or (ii) the documentation noting the prevalence of Female Genital Mutilation of young Yoruba girls in Nigeria.86 I have already addressed counsel's argument regarding the objective evidence in my Reasons above, at paragraphs 44 to 48. With regard to Counsel's argument that the RPD failed to independently assess the minor Appellants' claims, I find that the RPD did not err. [50] Counsel references two Federal Court cases, Ali and Gengeswaran, for the proposition that a negative credibility finding related to a parent's claim is not necessarily determinative of the credibility or well-foundedness of a minor Claimant's claim and that an independent assessment must be undertaken.87 While I agree with these legal principles, I find that these cases are not of assistance to the Appellants in their particular circumstances. [51] Unlike the minor Appellants' particular circumstances, Ali and Gengeswaran deal with minor Claimants whose residual risk profiles are established by the objective evidence and not based on the allegations of their parent that were found lacking in credibility. Specifically, Ali involves minor female Claimants from Somalia, one of whom suffers from Down's syndrome, who have never lived in Somalia, and the objective evidence establishes a risk for single Somali girls. Similarly, Gengeswaran involves a Tamil minor female Claimant from Sri Lanka, and the objective evidence establishes a risk of forcible recruitment of girls who fit this profile. However, the minor Appellants in the appeal before me do not have residual profiles independent of the allegations that were found lacking in credibility. The harm feared by the minor Appellants arise out of alleged threats from the Associate Appellant's family, which were found not credible. As such, I find that the RPD did not err. [52] Finally, Counsel argues that the RPD failed to take into consideration that FGM/C is a form of persecution.88 Respectfully, nowhere in its reasons does the RPD call this in to question. A finding that the Appellants lack credibility regarding FGM/C demands is not the same as a finding that FGM/C is not persecutory. Counsel's argument is without merit. SUMMARY [53] After independently assessing all of the evidence, I find that the Appellants allegations are, on a balance of probabilities, not credible. The presumption of truthfulness has been rebutted. I find that the Appellants have not credibly established that they face a serious possibility of persecution or a personal risk to life, or a risk of cruel and unusual treatment, or a danger of torture, upon return to Nigeria. I find no error in the RPD's conclusion that the claim fails on the issue of credibility. CONCLUSION [54] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection, pursuant to section 111(1)(a) of the IRPA. (signed) "J. Pollock" J. Pollock November 26, 2019 Date 1 Refugee Appeal Division Rules, SOR/2012-257, Rule 23(1). 2 Immigration and Refugee Protection Act (IRPA), SC 2001, c 27, as amended, at ss. 111(1)(a). 3 Exhibit RPD-1, RPD Record, Exhibits 2.1-2.5, at pp. 15-16, 20-178. 4 Canada (MCI) v. Huruglica, 2016 FCA 93, at para. 103. 5 Canada (MCI) v. Huruglica, 2016 FCA 93, at para. 103; 6 Ilias v. Canada (MCI), 2018 FC 661, at para. 39. 7 Dhillon v. Canada (MCI), 2015 FC 321, at para. 20. 8 Exhibit P-3, Appellants' fax, October 10, 2019. 9 Refugee Appeal Division Rules, SOR/2012-257, Rule 29. 10 Personal identifiers have been removed, except where necessary to explain the reasoning of the decision. 11 Exhibit P-4, Appellants' New Evidence, filed October 31, 2019, at pp. 23, 25-30, 32, 34-37, 39, 41. 12 Refugee Appeal Division Rules, SOR/2012-257, Rule 29(4). 13 IRPA, at ss. 110(4). 14 Canada (MCI) v. Singh, 2016 FCA 96. 15 IRPA, at ss. 171(a.3); Canada (MCI) v. Singh, 2016 FCA 96, at para. 44. 16 IRPA, at ss. 110(6). 17 Exhibit P-4, Appellants' New Evidence, filed October 31, 2019, at pp. 34-37. 18 Exhibit P-4, Appellants' New Evidence, filed October 31, 2019, at p. 23. 19 Exhibit P-4, Appellants' New Evidence, filed October 31, 2019, at pp. 25-30. 20 Exhibit P-4, Appellants' New Evidence, filed October 31, 2019, at p. 32. 21 Exhibit P-4, Appellants' New Evidence, filed October 31, 2019, at p. 49. 22 Rasheed v. Canada (MCI), 2004 FC 587, at para. 19. 23 Exhibit P-4, Appellants' New Evidence, filed October 31, 2019, at p. 36. 24 Exhibit P-4, Appellants' New Evidence, filed October 31, 2019, at pp. 34-36. 25 Exhibit P-4, Appellants' New Evidence, filed October 31, 2019, at p. 23. 26 Exhibit P-4, Appellants' New Evidence, filed October 31, 2019, at pp. 37, 35. 27 Exhibit P-4, Appellants' New Evidence, filed October 31, 2019, at p. 36, at paras. 14-15. 28 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Nigeria (30 November 2018), Item 9.2. 29 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Nigeria (30 November 2018), Item 9.2, attachment, Nigeria Evidence Act. 30 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Nigeria (30 November 2018), Item 9.2, attachment, Nigeria Evidence Act. 31 Exhibit P-4, Appellants' New Evidence, filed October 31, 2019, at p. 36. 32 Exhibit P-4, Appellants' New Evidence, filed October 31, 2019, at p. 36. 33 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Nigeria (30 November 2018), Item 9.2. 34 Arubi v. Canada (MCI), 2012 FC 36, at para. 35. 35 Morka v. Canada (MCI), 2007 FC 315, at paras. 9-10. 36 Robinson v. Canada (MCI), 2016 FC 868, at para. 22; Onyeawuna v. Canada (MCI), 2018 FC 1214, at para. 26. 37 Lu v. Canada (MCI), 2016 FC 846, at para. 35. 38 Exhibit P-4, Appellants' New Evidence, filed October 31, 2019, at pp. 25, 27, 29. 39 Exhibit P-4, Appellants' New Evidence, filed October 31, 2019, at p. 29. 40 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Nigeria (30 November 2018), Item 10.3, attachment, 2010 and 2018 specimins; see also Item 10.5 regarding police invitation letters. 41 Exhibit P-4, Appellants' New Evidence, filed October 31, 2019, at pp. 26, 28, 30. 42 Exhibit P-4, Appellants' New Evidence, filed October 31, 2019, at pp. 37, 35. 43 Exhibit P-4, Appellants' New Evidence, Principal Apellant's Affidavit, at p. 2, at para. 4. 44 Exhibit P-4, Appellants' New Evidence, filed October 31, 2019, at p. 29. 45 Exhibit P-4, Appellants' New Evidence, filed October 31, 2019, at p. 34. 46 Exhibit P-4, Appellants' New Evidence, filed October 31, 2019, at p. 27. 47 Exhibit P-4, Appellants' New Evidence, filed October 31, 2019, at p. 34. 48 Exhibit P-4, Appellants' New Evidence, filed October 31, 2019, at p. 27. 49 Canada (MCI) v. Singh, 2016 FCA 96, at para. 44. 50 Canada (MCI) v. Singh, 2016 FCA 96, at para. 44, 51, 54; IRPA, at ss. 171(a.3). 51 Canada (MCI) v. Singh, 2016 FCA 96, at para. 44. 52 IRPA, at ss. 110(6). 53 Exhibit P-4, Appellants' New Evidence, filed October 31, 2019, at p. 39. 54 Exhibit P-4, Appellants' New Evidence, filed October 31, 2019, at p. 41. 55 The Chairperson's Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues, continued in effect by the Chairperson on June 28, 2002, pursuant to section 159(1)(h) of the IRPA; The Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, continued in effect by the Chairperson on June 28, 2002, pursuant to section 159(1)(h) of the IRPA. 56 Exhibit RPD-1, RPD Record, Exhibit 4, at pp. 256-265. 57 Exhibit RPD-1, RPD Record, RPD Reasons, at pp. 8-11, at paras. 21-34. 58 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at pp. 139, 144-155 at paras. 2, 16-35. 59 Exhibit RPD-1, RPD Record, RPD Reasons, at pp. 8-9, at paras. 22-25; RPD Hearing Recording, December 13, 2018, timestamp 00:33:45-00:40:00. 60 Exhibit RPD-1, RPD Record, Exhibit 2.1, BOC narrative, at p. 28, at para. 6. 61 Exhibit RPD-1, RPD Record, RPD Reasons, at pp. 9-10, at paras. 29-30; RPD Hearing Recording, December 13, 2018, timestamp 00:41:00-00:50:00. 62 Exhibit RPD-1, RPD Record, Exhibit 2.1, BOC narrative, at p. 29, at paras. 7-9. 63 Exhibit RPD-1, RPD Record, RPD Reasons, at pp. 10-11, at paras. 31-33; RPD Hearing Recording, December 13, 2018, timestamp 00:57:29, 01:14-01:28:15. 64 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 11, at para. 34; RPD Hearing Recording, December 13, 2018, timestamp 01:19:30; 65 RPD Hearing Recording, December 13, 2018, timestamp 01:21:00-01:26:40 ; Exhibit RPD-1, RPD Record, Exhibit 2.1, BOC narrative, at p. 29, at para. 10. 66 RPD Hearing Recording, December 13, 2018, timestamp 01:26:40. 67 Exhibit RPD-1, RPD Record, RPD Reasons, at pp. 11-12, at paras. 35-38. 68 Exhibit RPD-1, RPD Record, RPD Reasons, at pp. 13-14, at para. 44. 69 Exhibit RPD-1, RPD Record, RPD Reasons, at pp. 6-7, at paras. 14-20. 70 RPD Hearing Recording, December 13, 2018, timestamps including 00:02:00, 00:27:40, 00:41:50. 71 RPD Hearing Recording, December 13, 2018, timestamp 01:35:25-01:37:10. 72 Yonis v. Canada (MCI), 2018 FC 844, at para. 4; Gjergo v. Canada (MCI), 2004 FC 303, at para. 22. 73 Tofan v. Canada (MCI), 2001 FCT 1011, at para. 25; Lubeya v. Canada (MCI), 2000 CanLII 16678 (FC). 74 Exhibit RPD-1, RPD Record, at pp. 268-270. 75 Exhibit RPD-1, RPD Record, at p. 268. 76 Exhibit RPD-1, RPD Record, at p. 270. 77 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at pp. 149-150, at para. 26. 78 Jin v. Canada (MCI), 2012 FC 595, at para. 8. 79 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at pp. 150-153, at paras. 27-31. 80 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at pp. 150-152, at paras. 27-30; Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Nigeria (30 November 2018), Item 1.5, at p. 37; Item 1.22, at para. 9.1.3; Item 5.12; Item 5.21. 81 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Nigeria (30 November 2018), Item 1.22, at para. 7.6.1; Item 1.4, at p. 38. 82 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Nigeria (30 November 2018), Item 5.12. 83 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at pp. 151, at para. 28; Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Nigeria (30 November 2018), Item 1.4, at p. 40. 84 Caleb v. Canada (MCI), 2018 FC 384, at paras. 33-36. 85 Caleb v. Canada (MCI), 2018 FC 384, at para. 36. 86 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at pp. 153-155, at paras. 32-35. 87 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at pp. 153-154, at paras. 32-33; Gengeswaran v. Canada (MCI), 1999 CanLII 8142, at paras. 9-10, 18-19; Ali v. Canada (MCI), 2015 FC 1061, at paras. 25-27 88 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at p. 155, at para. 35. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR: MB9-05808 MB9-05809 / MB9-05810 / MB9-05811 MB9-05812 RAD.25.02 (April 04, 2019) Disponible en français 22 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 (April 04, 2019) Disponible en français