MB9-11955

RAD File / Dossier de la SAR : MB9-11955 MB9-11956 / MB9-11957 / MB9-11958 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 Personnes en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision January 2, 2020 Date de la décision Panel Max Wolpert Tribunal Counsel for the persons who |are the subject of the appeal Ugochukwu Udogu 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] Ms. XXXX XXXX XXXX, and XXXX XXXX XXXX, XXXX XXXX XXXX and XXXX XXXX XXXX (Associate Appellants), citizens of Nigeria, appealed a decision of the Refugee Protection Division (RPD), dated May 13, 2019, rejecting their claims for refugee protection because they did not face the necessary risk of harm were they to return there. I agree with the RPD's conclusion and I am rejecting these appeals. Allegations [2] Ms. XXXX alleged that she and the three other Appellants, who are her sons, came to Canada because her husband's family, particularly a rich uncle, insisted that her daughter be subjected to forced female genital mutilation. [3] The daughter's claim was jointly before the RPD along with those of the Appellants. After the RPD hearing, however, the RPD held that Ms. XXXX testimony revealed a conflict of interest in her continuing to be the daughter's designated representative. The RPD removed Ms. XXXX from that role and separated the daughter's claim, which is not before me. The Appellants contest the RPD's having done so. RPD decision [4] The RPD found that Ms. XXXX and her adult son, XXXX XXXX XXXX, testified in a sincere and spontaneous manner.1 The RPD rejected the Appellants' claims, however, because it held, for three reasons, that Ms. XXXX had not established that there was a reasonable chance that she would face a prospective risk of persecution or a personalized prospective risk under section 97(1) of IRPA in Nigeria.2 First, the RPD noted what it found to have been her admission that she would consent to the daughter undergoing FGM if returned to Nigeria. Second, the RPD concluded that she had failed to establish, on a balance of probabilities, that her in-laws would resort to coercion or violence to ensure that her daughter is circumcised or would otherwise carry out the circumcision without parental consent. Third, the RPD also considered the objective documentary evidence on Nigeria which, it held, indicates that parents are able to go against their family's wishes and refuse FGM. New evidence Mother's affidavit [5] The Appellants presented one document that they requested be admitted by the RAD as new evidence. This is an affidavit by Ms. XXXX mother,3 sworn six weeks after the date of the RPD's reasons and five weeks after the date of its notice of decision. [6] The first six paragraphs of this affidavit reiterate the Appellants' allegations, stating that the situation on which they are based, was also known to the deponent. Those paragraphs thus do not constitute evidence that arose after the RPD decision; nor is there evidence that their contents were not reasonably available before that decision. There is also no basis to conclude that the Appellants, represented by counsel before the RPD, could not reasonably have been expected to have presented that portion of the affidavit's evidence to the RPD. Thus, those paragraphs on their own, would not meet the IRPA s.110(4) criteria for admission as new evidence. [7] The seventh paragraph of the affidavit states that Ms. XXXX mother knows that if Ms. XXXX comes back with [all] her children, her in-laws will forcibly carry out FGM on her daughter, and will even punish her for disobeying the gods and family tradition by fleeing Nigeria with the children. There is nothing in the affidavit indicating that the deponent learned of this after the RPD decision. Given the previous six paragraphs claiming comprehensive awareness of the Appellants' alleged situation, I take Ms. XXXX mother to be asserting that she has known this all along. That being so, this paragraph would also not meet the IRPA s.110(4) admissibility criteria, for the same reasons as set out above. [8] Paragraphs 8 and 9 of the affidavit depose that since XXXX 2019, the XXXX before the RPD decision, Ms. XXXX in-laws have been coercing her husband to divorce her and marry another woman. This information thus arose before the RPD's May 2019 decision. Ms. XXXX mother adds that she has told her daughter since she left about what has been happening, including this XXXX 2019 development. Given the continual communication indicated in the affidavit between Ms. XXXX and her mother, and the importance this information would have carried for Ms. XXXX, I find that this evidence was reasonably available to her before the RPD decision and that she could reasonably have been expected to have presented it to the RPD, with a request for time to do so if necessary. I thus conclude that this portion of the affidavit also does not meet any of the IRPA s.110(4) criteria for admissibility. [9] Finally, paragraph 10 of the affidavit states that Ms. XXXX rich uncle [by marriage] has threatened her parents that he will use the police to lock them up because they support their daughter. There is no indication, nor any reason to find it probable, that these threats began only after the RPD decision. This paragraph thus does not meet the IRPA s.110(4) criteria for the same reasons as the previous paragraphs. [10] In the result, this affidavit is inadmissible in evidence before the RAD. Affidavit of Ms. XXXX [11] The Appellants' record also contains a new affidavit by Ms. XXXX.4 Paragraphs 1 to 17 simply mirror the arguments in the Appellants' memorandum. In paragraph 18, Ms. XXXX asserts that she knows that her life and those of her children are at risk were they to be returned to Nigeria, and that she fears being attacked (and her daughter being subjected to forced FGM) there as well. There is no indication that this is based on post-RPD developments. There is also no evidence or reason to believe that Ms. XXXX could not have testified to these alleged risks before the RPD, or that she could not reasonably have been expected to know that they were pertinent to her RPD hearing. That being so, this evidence does not meet any of the IRPA s.110(4) criteria for admissibility as new evidence. [12] Finally, Ms. XXXX affidavit states in paragraph 20 that were she and her sons to be returned to Nigeria without her daughter, her husband's family may kill her because they will ask for [her] daughter. As the separation of the daughter's refugee claim from that of her mother and brothers was not brought up by the RPD at its hearing, and was only announced in its decision, and as the possibility of the current Appellants being returned to Nigeria without the daughter was not raised or canvassed there, I find that Ms. XXXX could not reasonably have been expected to present this evidence before the RPD. This paragraph thus meets one of the criteria for admissibility under IRPA s.110(4). [13] I thus admit paragraph 20 of Ms. XXXX affidavit as new evidence. Role of the RAD [14] When reviewing the RPD decision, I am required to assess the evidence independently and to determine whether the RPD was correct in relation to each alleged error of law, fact or mixed fact and law. I have not deferred to the RPD's credibility assessment of oral testimony, as I did not find that the RPD had a meaningful advantage in the circumstances.5 [15] I have read all the documentary evidence filed, including the full transcript provided by the Appellants. Guidelines [16] In analyzing these appeals, I have taken into account the Chairperson's Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution and the Guidelines on Child Refugee Claimants: Procedural and Evidentiary Issues.6 ANALYSIS Removal of Ms. XXXX as her daughter's designated representative [17] The Appellants challenge the RPD's post-hearing decision to remove Ms. XXXX as her daughter's designated representative and separate the daughter's claim for protection. They do so both on the grounds that the decision was substantively incorrect and unjustified, and on natural justice grounds, the RPD not having alerted Ms. XXXX during the hearing that it had concerns about her suitability to continue as designated representative, but rather having mentioned the matter for the first time in its reasons for decision. [18] The RAD's jurisdiction is limited to appeals against a decision of the RPD to allow or reject a claim for refugee protection.7 If a decision to remove a claimant's designated representative and to separate that claimant's case is made during an RPD hearing, it would normally be an interlocutory ruling not itself within the RAD's jurisdiction. The unusual timing in the present case, however, perhaps distinguishes the situation. [19] In any event, despite any discomfort or concern this RPD ruling may have caused Ms. XXXX, any arguable prejudice would affect her daughter, not her or the other Appellants. Thus, any complaints or appeals should be brought up by the daughter's counsel and new designated representative in the context of the daughter's RPD proceedings rather than the present appeals. [20] For these reasons, I decline to rule on the correctness of the RPD's designated representative decision. Did Ms. XXXX admit that she would consent to her daughter undergoing FGM if both were returned to Nigeria? -RPD incorrect, but correct that Ms. XXXX would not further actively resist [21] In her BOC, Ms. XXXX wrote that after she and her husband objected to her in-laws' XXXX 2017 request to present their daughter for FGM, the in-laws threatened to hurt their children and her should she refuse to comply. She and her husband then decided, she continued, to do everything in their power to avoid this barbaric act, which led to their decision for her and all four children to leave Nigeria and seek protection in Canada.8 [22] Should she and her children return to Nigeria, Ms. XXXX further wrote, she would do everything in her power to prevent her daughter from being subjected to FGM. She and her sons would, as a result, be harmed by her in-laws, she concluded.9 Thus, in her BOC at least, Ms. XXXX did not indicate that she would consent to her daughter undergoing FGM. [23] The RPD asked Ms. XXXX what she feared should she and her children return to Nigeria. She first answered that there was a high possibility that she would never enjoy life again.10 A bit later, she was asked whom she feared would harm her. Her husband's family, she replied. She clarified that the harm she was talking about was not physical; rather, should they succeed in taking her daughter and subjecting her to FGM, it would leave a big debt of affliction in Ms. XXXX heart for life. She then spoke of the trauma and harm forced-FGM would inflict on her daughter.11 [24] Later, Ms. XXXX testified that, had her husband not sent her and the children out of Nigeria, there would have been nothing he could have done to prevent their daughter's FGM.12 She explained, citing one past example, that this was because it is his family's tradition without exception, and because, due to her husband's uncle's wealth and influence, the authorities would not have protected them against it.13 [25] Further on, Ms. XXXX testified that the uncle had come to her home while her daughter was still eleven years old to remind her and her husband that his family would carry out FGM on their daughter when she turned twelve. In testimony that was apparently key to the RPD's finding that Ms. XXXX admitted that she would consent to her daughter undergoing FGM, she clarified that her in-laws would not covertly abduct her daughter; rather, she and her husband had already been informed of their intent and the only thing she and her husband could do was what they had done [i.e. to have her and the children leave Nigeria]. There was a mixing of tenses at the end of that exchange, which I reproduce here: PRESIDING MEMBER: So, why do you believe that your in-laws would be able to take your daughter to circumcise her without you or your husband's consent? FEMALE CLAIMANT: It isn't that they will not inform us, we already knew and there is nothing we can do except to take the step we took. [26] The RPD apparently interpreted this to mean that the in-laws not only had previously told Ms. XXXX and her husband of their intent to carry out FGM, but would also alert them in advance once they intended to proceed, and that Ms. XXXX, should she and her daughter be back home in Nigeria, would do nothing more to stop them. [27] Ms. XXXX subsequently testified that she could not elaborate on what happens when someone does not follow her husband's family's FGM tradition, because she was unaware of any such instance. It was better, she explained, to avoid this evil as she had attempted to do [by leaving]. The RPD member persisted: What happens to someone who simply does not follow the tradition? The western mind, Ms. XXXX responded, does not understand the cultural and voodoo practices of her culture. A curse could be pronounced on one who defies the tradition, and this would be their end, using fetish power. When this happens, she explained, some people become useless and sustaining themselves becomes tough.14 [28] Based on Ms. XXXX testimony, as understood by the RPD, that: a. if returned to Nigeria there would be nothing she could do to prevent her daughter being subjected to the family tradition of FGM; b. it is better to follow tradition in order to avoid a curse on the person who violates it; c. her in-laws would not carry out the FGM without [first] informing her or her husband; d. the lack of testimony by Ms. XXXX that her in-laws would physically harm or mistreat her or coerce her daughter into undergoing FGM; and that e. the only harm Ms. XXXX fears refers to her traditional beliefs, superstitions and curses; [29] The RPD concluded that Ms. XXXX had admitted that, were she and her daughter to be returned to Nigeria, she would consent to the FGM of her daughter.15 This led to the RPD's decision to remove Ms. XXXX as her daughter's designated representative. It also formed one of the RPD's three reasons for finding that the Appellants had not established the risk of persecution or harm necessary to qualify for protection. [30] Counsel submits that Ms. XXXX testified that she would be devastated if her in-laws succeed in circumcising her daughter. Counsel adds that Ms. XXXX testified that if she did not take the drastic step of running away with her children, her daughter's circumcision was inevitable-not because she consents, but rather because her consent will not be needed considering the macho and gerontocratic nature of the community she comes from in Nigeria.16 [31] If by consent, the RPD meant that Ms. XXXX would approve of her in-laws carrying out FGM of her daughter, the RPD would clearly be incorrect. There was no evidence of that. [32] If, as is probably more likely, the RPD meant that Ms. XXXX would acquiesce to the FGM, the question merits examination. As noted in her BOC, Ms. XXXX wrote to the contrary. On the other hand, she did not testify that she would try physically to block her in-laws performing FGM on her daughter, but said only that there would be nothing more she could do and that defiance would lead to her being cursed. [33] While I can discern the RPD's reasoning, to my western mind the dramatic finding that Ms. XXXX would consent, even in the sense of voluntary acquiescence, to her daughter's FGM would require more clarity than her evidence, written and oral, provides. I agree with counsel that the RPD seems to have conflated being informed about a ritual and consenting to it.17 Counsel's argument above about an alternate interpretation of Ms. XXXX expressed sense of resignation is also cogent and provides an alternate plausible interpretation of her evidence. Thus, the required clarity to sustain the finding that Ms. XXXX would "consent" is lacking. To that extent, the RPD's finding was incorrect. [34] What can, in my view, correctly stand is that Ms. XXXX, if back home with her daughter, would probably, though dejectedly, not defy her in-laws should they persist in their alleged attempts to have her daughter subjected to FGM. Although her BOC initially indicated otherwise, that was the repeated impression of her testimony that there would be nothing she could do about it. Not established that in-laws would force FGM without parental consent-RPD correct as far as Appellants are concerned [35] The RPD held that Ms. XXXX failed to establish, on a balance of probabilities, that her in-laws would resort to coercion or violence to ensure that her daughter is subjected to FGM or would otherwise carry it out without parental consent. [36] The daughter's claim for protection is not before me. I must limit my analysis to the import and correctness of this finding as it relates to the Appellants. I do not know, nor would I be permitted to investigate without the consent of the daughter's new designated representative, whether she has been granted refugee protection in Canada. I thus have to consider the risks the Appellants might face in two scenarios: the daughter is granted such protection, or she is not. First scenario: If the daughter remains in Canada [37] If the daughter were to be granted protection and remain in Canada, what would be the risks faced by any or all of the Appellants should they return to Nigeria?18 In the case of Ms. XXXX, this translates to the risk, if any, that her in-laws would persecute her, or have her killed, tortured by or with the state's condonation, or subject her to cruel and unusual treatment, either to coerce her daughter's return for FGM or simply to punish her. It also, with the necessary alterations, refers to the risk of any of her sons facing such mistreatment. [38] The RPD did not explicitly address the scenario of the Appellants, or any of them, returning to Nigeria without the daughter. Separating the daughter's claim and, without knowing its outcome, rejecting the others, means the RPD must have implicitly considered that possibility. Among its findings pertinent to the question were (i) that Ms. XXXX was not aware of any case where her husband's extended family had forcibly carried out FGM against the wishes of the victim's parents, and thus also had no evidence of that family having persecuted or harmed parents who had objected, but had only said that such parents could be subjected to a curse;19 (ii) that although Ms. XXXX testified that her in-laws told her mother in XXXX 2018 to tell her to bring [all] the children back, or else she would not be able to talk about it, Ms. XXXX said she didn't know what that implied or what the in-laws could do;20 (iii) that Ms. XXXX did not testify that her in-laws would compel her by force to submit her daughter to FGM, or that she believed they would do so without her consent;21 (iv) thus that Ms. XXXX had not demonstrated that her in-laws' statements amounted to a threat of physical or other harm to any of the Appellants.22 [39] Counsel's arguments pertinent to the scenario of the Appellants returning to Nigeria without the daughter include: (i) the finding that Ms. XXXX fears only being cursed, and by corollary that there is no reasonable chance of the Appellants being persecuted in Nigeria, is grossly unreasonable. That is because the RPD ignored Ms. XXXX statement in her BOC that when she and her husband had tried to convince his family in late 2017 that FGM was a terrible practice, "They threatened to hurt my children and I if I refused to abide by their decision"23 and they had insisted that the FGM must be done to appease the gods, and she also wrote that the in-laws would harm her and her sons because of her refusal to abide by their traditions.24 [40] The RPD did mention, in its summary of the allegations, Ms. XXXX BOC assertion that her in-laws would harm the Appellants.25 The RPD reasons did then focus on the testimony. In my view, that was not incorrect. The statements in the BOC were undetailed and required explanation. That being so, the RPD was correct to emphasize the answers in the testimony. In my opinion, its findings set out above thus did not ignore the BOC. They were also cogent and, in my opinion, correct in light of the evidence before the RPD. [41] I also note that there was no evidence that Mr. XXXX husband and the father of their children-who has remained at home to be aware of and updated of events as they unfold and to repay money borrowed for the Appellants' travel, and with whom Ms. XXXX spoke daily from Canada-26has been persecuted or harmed since their daughter left Canada in defiance of his family's FGM tradition, or that he personally feared such mistreatment. [42] There is new evidence in paragraph 20 of Ms. XXXX affidavit that she asserts that were she and her sons to be returned to Nigeria without her daughter, her husband's family may kill Ms. XXXX because they will ask for her daughter. In my opinion, this is entirely speculative and not corroborated by any evidence indicating that the in-laws, whatever importance they allegedly attach to the terrible FGM ritual, would go to such extreme, not to say futile, lengths to enforce it. [43] For these reasons, I find that the RPD did not err by not ruling that the Appellants, or any of them, face the required risk of persecution or serious harm were they to be returned to Nigeria without Ms. XXXX daughter. Second scenario: Daughter returns to Nigeria-no serious risk of persecution or harm [44] Barring the highly unlikely withdrawal of the daughter's claim for protection, she would only have to return to Nigeria if the RPD determined, and the RAD confirmed, that there is not a serious chance that she would be subjected to FGM, which is inarguably gender-based persecution. [45] In my opinion, it would thus be improper for me to analyze counsel's extensive arguments about the prevalence of FGM in Nigeria to determine whether or not the daughter faces a serious risk of it if returned there. The results of such an analysis by me could, moreover, turn out to be inconsistent with the eventual RPD/RAD decision on that same issue in the daughter's proceedings. [46] My analysis here will be limited instead to the risks to the Appellants, or any of them, should they and the daughter all return to Nigeria. As explained, that analysis will assume that there would be no serious chance the daughter would be subjected to FGM. [47] Counsel's points pertinent to those risks are that: (i) Ms. XXXX expressed fear in her BOC and testimony not only of being cursed, but also of her in-laws' threat to hurt her and her children for her refusal to abide by their FGM decision;27 (ii) she also wrote in her BOC that she would do all in her power to prevent the FGM of her daughter. She and her sons would as a result be harmed by their in-laws because of her refusal to follow their traditions;28 (iii) Ms. XXXX testified that in XXXX 2018 her in-laws called her family and demanded she return with all the children, failing which they would "show" her. Ms. XXXX explained that she had taken this to be a threat to cause her to suffer.29 [48] Nonetheless, if it were that Ms. XXXX daughter would face no serious risk of the in-laws subjecting her to FGM back in Nigeria, then I see no serious risk of them persecuting any of the Appellants, nor a probability of causing them harm within IRPA s.97, for opposing something the in-laws would not themselves be carrying out. I do not see more than a mere possibility that the in-laws would accede to Ms. XXXX opposition to FGM, refrain from carrying it out, but persecute or seriously harm her or her sons anyway. Additional allegations-RPD correct [49] The RPD made the following additional findings, which have not been challenged on appeal: [20] At the hearing, the claimants allege that they did not want to return for a multitude of reasons. The principal claimant stated, among other things, that she had to close her business and use the proceeds to pay, in part, for the travel arrangements to Canada; that her husband's business is failing because of debt and that her minor children are well settled in Canada and are doing better in school than they did in Nigeria. The principal claimant's adult son also testified that he would not be able to continue his school in Nigeria as universities are often shut down for several months. [21] The panel finds that these allegations to be more akin to humanitarian factors and are not sufficient considerations to ground a claim under section 96 or subsection 97(1) of the IRPA. Therefore, the panel finds that, in respect of the allegations relating to their personal circumstances, the claimants have not demonstrated a serious possibility of persecution or that, on a balance of probabilities, they would be personally subjected to a danger of torture or face a risk to their life, or a risk of cruel and unusual treatment or punishment, should they return to Nigeria. [50] I agree with the RPD's reasoning and ruling on these additional allegations. CONCLUSION [51] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellants XXXX XXXX XXXX, XXXX XXXX XXXX, XXXX XXXX XXXX and XXXX XXXX XXXX are neither Convention refugees nor persons in need of protection, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). Max Wolpert Max Wolpert January 2, 2020 Date MW/lp 1 RPD reasons, paragraph 12. 2 RPD reasons, paragraph 18. 3 Appellants' record, pages 20 to 21. 4 Appellants' record, pages 16 to 18. 5 M.C.I. v. Huruglica, 2016 FCA 93, paras. 70 and 103. Suggest to also cite Rozas del Solar. 6 Only Ms. XXXXX was present in the hearing room during the testimony before the RPD. 7 Immigration and Refugee Protection Act, s.110(1). 8 RPD record, page 11, question 2(a). 9 RPD record, page 12, question 2(b). 10 Appellants' record, page 32, transcript, lines 26 to 27. 11 Appellants' record, page 33,transcript, line 78 to page 34, line 1. 12 Appellants' record, page 35, transcript, lines 65 to 80. 13 Appellants' record, page 36,transcript, lines 69 to 76 and page 37, line 57. 14 Appellants' record, page 41, transcript, lines 50 to 84 . 15 RPD reasons, paragraphs 6, 7 and 18. 16 Appellants' record, pages 64 to 65, paragraph 40. 17 Appellants' record, page 68, paragraph 50. 18 One might reasonably surmise that following any decision granting the daughter, now twelve years old, protection in Canada, that IRCC, applying the Baker criteria to take her best interests as a child into consideration, might well allow at least Ms. XXXXX to remain in Canada with her regardless of the result of the latter's claim for protection. That, of course, is outside my purview, so I will analyze the scenario of all the Appellants returning to Nigeria without the daughter. 19 RPD reasons, paragraphs 13 and 14. 20 RPD reasons, paragraph 15. 21 RPD reasons, paragraph 15. 22 RPD reasons, paragraph 15. 23 RPD record, page 11, question 2(a); The first "I" is inadvertently omitted from the Appellants' memorandum at Appellants' record page 61, paragraph 29. 24 Appellants' record, pages 61 to 62, paragraphs 29 and 30. 25 RPD reasons, paragraph 4. 26 Appellants' record, page 31, transcript lines 26 to 75. 27 Appellants' record, page 61, paragraph 29. 28 Appellants' record, pages 61 to 62, paragraph 30. 29 Appellants' record, page 63, paragraph 36. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-11955 MB9-11956 / MB9-11957 / MB9-11958 RAD.25.02 (April 04, 2019) 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 (April 04, 2019) Disponible en français