TB8-33619

RAD File / Dossier de la SAR : TB8-33619 TB8-33620 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision November 12, 2019 Date de la décision Panel Dilani Mohan Tribunal Counsel for the persons who are the subject of the appeal Mbong Elvira Akinyemi 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] These are my reasons for dismissing the appeal by the Appellants: XXXX XXXX XXXX (Ms. A) and XXXX XXXX XXXX (XXXX). The Refugee Protection Division (RPD) rejected their claims for refugee protection for reasons of credibility. The Appellants dispute the RPD's credibility findings, and argue that the RPD ignored relevant evidence while also failing to apply the Guidelines related to women and children. After independently reviewing the record, I confirm the RPD's decision that the Appellants are neither Convention refugees nor persons in need of protection. BACKGROUND [2] The Appellants are a Nigerian mother and her young daughter. They claimed protection in Canada because Mrs. A is under pressure to have her daughter circumcised. Mrs. A is vehemently opposed to the practice of female circumcision or genital mutilation (FGM) and she claims that, after she refused the wishes of her in-laws to circumcise her daughter, she was repeatedly threatened but never physically assaulted. Mrs. A claims that she tried to plead with her family members but when it became clear that they would not change their minds, she went into hiding and, after borrowing some money, traveled to Canada in XXXX 2017 using a visa she had obtained only a few months prior in XXXX 2017. [3] Mrs. A's claim that she had never been physically assaulted was a major issue at her refugee hearing. The RPD found that some of her psychological evidence was based on representations she had made to healthcare professionals indicating that she had been beaten. The RPD found that this undermined the reliability of that evidence and Mrs. A's own credibility regarding central elements of her claim. [4] The RPD rejected the Appellants' claim on December 7, 2018, because of credibility. It grounded its decision in findings that Mrs. A was generally not credible; that she was never assaulted; that she submitted a fraudulent police report; that her delay in leaving Nigeria indicated a lack of subjective fear; and that the supporting evidence she provided had little value. Arguments on Appeal [5] The Appellants argue that the RPD's credibility findings are in error because they ignore reasonable explanations related to the Appellants' delay in leaving Nigeria and the authenticity of their police report. They argue that the RPD stepped outside of its jurisdiction in assessing the authority of Mrs. A's psychotherapist to issue a diagnosis and that the RPD should have considered the totality of the other evidence, particularly reports by Dr. XXXX and Dr. XXXX. Finally, the Appellants argue that the RPD did not apply the Gender Guideline1 and that it ignored evidence supporting the Appellants' claim. [6] On October 18, 2019, the Appellants filed an application, pursuant to Rule 29 of the RAD Rules and to subsection 110(4) of the IRPA, to make late submissions and to have affidavit evidence admitted into the record. The Appellants did not request an oral hearing. ROLE OF THE REFUGEE APPEAL DIVISION (RAD) [7] The RAD conducts its own analysis of the record to decide whether or not the RPD's decision was wrong. The RAD generally does not owe any deference except in cases where the RPD held a meaningful advantage in assessing credibility of oral evidence. I do not find that the RPD enjoyed a meaningful advantage in this particular case. The standard applied on this appeal is therefore one of correctness. NEW EVIDENCE AND ORAL HEARING [8] The Appellants have requested that the RAD admit a new psychological report by Dr. XXXX into evidence. For the reasons that follow, I am admitting this report into evidence. In arriving at this decision, I have applied Rule 29 of the Refugee Appeal Division Rules. Rule 29 states that late evidence must first be assessed for its probative value and relevance, whether it introduces substantively new evidence, and whether that evidence could reasonably have been produced with the Appellants' Record. Only if a document satisfies all three criteria can it be accepted as late evidence, and once accepted, it must then be assessed against subsection 110(4) of the IRPA and the factors in Singh.2 [9] I find that this second report by Dr. XXXX is probative in that a central issue in this case is the reasonableness of an internal flight alternative in Nigeria for the Appellants. Fulsome information about the state of Mrs. A's mental health is therefore important to this assessment and highly relevant. The evidence is substantively new in that it provides confirmation of ongoing treatment, which was not previously in the record. And given that this report is based on a reassessment conducted in XXXX 2019, many months after the Appellants' Record was perfected, I find that it could not reasonably have been provided with the perfected record. I further accept the Appellants' explanation that they were delayed in providing this report to the RAD due to illness and Dr. XXXX absence from his office. [10] I now turn to the test set out in subsection 110(4) of the IRPA and the decision in Singh. Subsection 110(4) of the IRPA requires appellants to demonstrate that the new evidence they have submitted either post-date the RPD's decision-was not reasonably available at the time the RPD's decision was made-or that the appellant could not have reasonably obtained by the time the decision was rendered. If it meets one of those conditions, the document must then be assessed against the factors set out in Singh: relevance, credibility and newness. [11] I have already found that the evidence post-dates the RPD's decision and therefore find that Dr. XXXX report satisfies the first prong of the subsection 110(4) test. I have also already found that the evidence is relevant and new because it reflects information about the current state of Mrs. A's mental health and pertains to a determinative issue in this appeal. I also find the information credible because the report is provided by Dr. XXXX, a physician with considerable experience and some history with the Appellants. Accordingly, I find that the evidence tendered meets the statutory requirements for admissibility, and I therefore allow it into the record. [12] The Appellants have not requested an oral hearing, and I do not find that the test to convoke a hearing has been met. For a hearing to be convoked, the new evidence must raise issues of credibility that are central to the decision and that, if accepted, would determine the outcome of the appeal. In this case, the new evidence supplements a report by Dr. XXXX that the Appellants argued addressed a credibility issue that the RPD had raised. The new evidence found in this second report by Dr. XXXX is only that Mrs. A is again receiving medication. But this does not in itself raise a credibility issue. As a result, I do not find that there are grounds to convoke a hearing, pursuant to paragraph 110(6) of the IRPA. ANALYSIS [13] For the reasons that follow, I have found that the determinative issue is credibility. I find that the documentary evidence does not demonstrate the reliability of the Appellant's psychological evidence and that it does not demonstrate that the Appellants' fear of persecution is objectively well founded. Psychological Evidence and Credibility [14] The RPD found the Appellants' credibility significantly undermined by contradictions between her narrative, testimony, and psychological evidence regarding the way she was treated by her in-laws. Specifically, the RPD found that Mrs. A's statement to her psychotherapist that she was physically assaulted and beaten was a significant element of her claim that was conspicuously absent from her Basis of Claim (BOC) narrative. When asked during the hearing whether she had ever been physically harmed, Mrs. A did not mention any physical assault. She referred only to verbal threats and pressure. When Mrs. A was asked why her psychotherapist's assessment referred to Mrs. A's self-reported history of physical assault and beating,3 Mrs. A explained that she had understood the RPD to be asking whether she had ever been in the middle or subject of a group assault. She explained that she had been pushed and fallen against a wall but that she had never been beaten. She further explained that this information was not included in her Basis of Claim because the psychotherapist placed different weight on violence. The RPD found this explanation was an example of evolving testimony and that Mrs. A's education and sophistication made the explanation incredible, and so it drew a negative inference around the credibility of this central allegation.4 The RPD further found that this undermined the reliability of the psychological report and dismissed all of the psychological evidence5 because it was based on self-reporting of events that the RPD found not credible6 and because the psychotherapist overstepped his authority by acting as an advocate7 and making a diagnosis without authorization.8 [15] The Appellants argue that the RPD was wrong to dismiss Mr. XXXX report because psychotherapists do have the authority to make diagnoses.9 They argue that Mrs. A was not embellishing her testimony and that she was, on the contrary, consistent throughout the rest of her evidence in stating that she had not been physically assaulted.10 The Appellants stressed that the RPD ought to have considered the reports by Ms. XXXX XXXX and Dr. XXXX, which, they argue, match Mrs. A's testimony and corroborate the absence of physical assault.11 They argue that Mrs. A's explanation of her understanding of the RPD's question regarding physical harm was reasonable given her understanding that being beaten means to be surrounded and beaten rather than being threatened, involved in heated arguments or being pushed.12 [16] I see no merit to the Appellants' arguments. I find that the reports by Ms. XXXX and Dr. XXXX do the opposite of what the Appellants argue. Those reports do not corroborate Mrs. A's claim that she was never physically assaulted and, consequently, they strengthen the RPD's finding that Mrs. A is not credible and that her medical evidence is unreliable. Dr. XXXX and Dr. XXXX reports undermine the Appellants' credibility [17] Dr. XXXX first letter states that Mrs. A has a "history of being subjected to beatings and blunt trauma".13 Even if these beatings and blunt trauma were not inflicted by her in-laws, I find that Mrs. A ought to have explained this given the fact that she reported these incidents to her doctor whose report she was asking the RPD to consider. In the absence of any explanation otherwise, the inference that the RPD was being asked to draw is that these beatings and blunt force trauma formed some of the persecutory acts from which Mrs. A fled. The Appellants have not produced any further explanation on appeal. The lack of clarity makes it difficult to say with certainty how these beatings and physical trauma fit into Mrs. A's narrative; however, given the specificity of the explanation in Mr. XXXX report, that she "had been physically assaulted and beaten over the issue [of her daughter's circumcision]", I find, on a balance of probabilities, that Mrs. A told Dr. XXXX that she had been beaten by her in-laws over the FGM issue. Consequently, I find Dr. XXXX report not only unreliable in assessing Mrs. A's testimony on this allegation but also that it further undermines her credibility. [18] Similarly, Ms. XXXX letter refers to the Appellants seeking asylum "on the basis of violence and trauma that they had experienced as a result of Mrs. [A's] in-laws threatening to force her daughter to undergo circumcision."14 I acknowledge that violence need not always be physical and that one cannot immediately assume that the term means physical violence. However, when the term violence is used, it is most commonly understood to mean physical violence. In the absence of any clarification as to what the doctor meant by the term, and in the context of Mrs. A's reporting to both her psychotherapist and her medical doctor that she was repeatedly physically assaulted and beaten, I find, on a balance of probabilities, that Ms. XXXX statement is a reiteration of Mrs. A's claims of experiencing physical violence. [19] In that light, I am not persuaded by Mrs. A's argument that these medical reports both corroborate her narrative and initial oral testimony of never having been beaten or physically harmed. I do not find that the RPD erred and I find Mrs. A's credibility further undermined. Assessment of the Psychological Reports [20] The Appellants have argued that Mr. XXXX was authorized to diagnose a mental health disorder. That is simply not true. Psychotherapists are only authorized to identify and treat symptoms or sequelae of those disorders but have no authority to render a diagnosis.15 I therefore dismiss that argument. [21] I have assessed the Appellants' psychological reports according to a framework that considers the author's qualifications and experience; the clinical approach or methodology to the assessment; the report's conclusions; the purpose of the report; and whether there are any expressions of impermissible advocacy. [22] As I stated above, Mr. XXXX is a qualified psychotherapist with over six years of experience. However, he is not permitted to make a diagnosis. Although the Appellants and the RPD argued that a diagnosis was made, I find that was not the case. The psychotherapist was stating only his clinical impression that his observations and the symptoms which Mrs. A had demonstrated a consistency with the symptoms of the disorders that he had identified. This is within the scope of a psychotherapist's practice. I therefore find that the RPD erred by diminishing the value of the report for this reason, but, as I will explain, the RPD was ultimately correct to find that this report is unreliable and therefore deserves no weight. [23] The psychotherapist's report may have been considered reliable because the assessment was based on a structured clinical interview of at least one-hour duration in which a variety of topics were covered. Mr. XXXX explained the process by which his clinical impressions were based, and I am satisfied that this was a reliable process consistent with practice in this field. However, I agree with the RPD that Mr. XXXX overstepped by including country evidence on which he claims no expertise, and therefore I disregard that section of the report. The overall reliability of the report also suffers because it was based almost entirely on self-reported events, and it appears that much of the assessment of trauma was founded on the notion that Mrs. A was violently and physically beaten. This, in my view, significantly undermines the reliability of this evidence. And, as discussed above, that reliability is not resuscitated by the content of Mrs. A's other medical reports. [24] Dr. XXXX is a licensed medical professional. Ms. XXXX is a Violence Against Women Counsellor. Both met with and interviewed Mrs. A on multiple occasions, making their resulting observations and comments of greater value than if they had only met once. Neither Dr. XXXX nor Ms. XXXX are authorized to give a diagnosis on a mental health condition, although I note that Dr. XXXX years of experience in the field of mental health through the XXXX XXXX XXXX XXXX XXXX XXXX make his clinical opinions on these conditions valuable. Ms. XXXX experience working with women who have experienced gender-based violence is also valuable due to her experience with that population. Although Ms. XXXX letter confirms that Mrs. A has been attending counselling sessions, a fact that would otherwise increase the weight due to a psychological report, the fact that the self-reported basis for the counselling has been found to be not credible undermines the value of the report. And, while I accept that Mrs. A was prescribed medication for sleep disturbances, I cannot accept the remainder of Dr. XXXX first report or his assessment of post-traumatic stress disorder (PTSD) because a significant factor contributing to that assessment has been found not credible. [25] For this same reason, I find that Dr. XXXX recent report deserves little weight, which I accord to the information he provides about Ms. A's current need for medication. I remain unable to accept that the doctor's clinical impressions are based on credible fact since, in this second report, Dr. XXXX reiterates that his old statements about Mrs. A's history remain valid.16 [26] Because Mrs. A expressly told multiple healthcare workers who assisted her that she had experienced violence and beatings, I do not accept her explanation that she only understood the term "physically harmed" to refer to situations of mob or group beatings. It may have been reasonable if only one of those healthcare workers was left with the impression that she had been beaten, but it is not when there are multiple reports indicating that she experienced physical trauma. I therefore agree with the RPD that Mrs. A's explanation is not credible, and I find that this negatively affects her overall credibility. [27] The contradiction between Mrs. A's narrative and testimony that she was never physically harmed and her reporting to healthcare workers that she was persistently abused is very significant. At the heart of the Appellants' claim is the notion that their lives are in danger because Mrs. A's in-laws are so invested in the tradition of FGM that they are willing and capable of acting violently to enforce the tradition. I accept, as the Appellants have asked, that Mrs. A was never physically harmed. This finding directly contradicts the psychological evidence and is the reason why I have discounted all of the reports. It is also why I cannot rely on those reports to support Mrs. A's credibility on her allegation that her in-laws are willing to inflict violence to harm her or to abduct her daughter to force circumcision. Finally, Mrs. A's lack of credibility in explaining the contradiction in her evidence undermines her overall credibility, and I find that she has exaggerated or embellished her evidence to reflect a falsely heightened level of risk. Delay in Leaving Nigeria [28] The RPD found that the Appellants' three-month delay before leaving Nigeria was inconsistent with genuine fear and found the Appellants' credibility undermined. The RPD did not accept Mrs. A's explanation for the delay; that her family's financial situation had changed in the months after applying for the Canadian visas, and that it took time to borrow money after learning that they did not have enough.17 The Appellants have argued that the explanation was reasonable and that the delay of three months was not so long that it indicates a lack of subjective fear.18 [29] I agree with the Appellants that a delay of three months is not sufficient to indicate a lack of subjective fear. However, I find that Mrs. A's explanation for the delay is neither credible nor supported by the evidence. I therefore draw a negative inference and uphold the RPD's finding that the Mrs. A's explanation for the delay undermines her credibility. [30] Mrs. A claimed to have gone into hiding at the end of XXXX, a few days after reporting the threats to the police, and then left Nigeria in mid-XXXX. I find her explanation of trying to negotiate with her family between XXXX XXXX, when the threat was issued, and XXXX XXXX, when she went into hiding, to be reasonable. [31] However, the remainder of Mrs. A's explanation lacks credulity. She alleged that she did not realize that she did not have the money to purchase tickets to leave Nigeria until XXXX and that this is because her husband's business had gone through a hard time. But, her husband's bank statements, which had been provided along with their visitors' visa application in XXXX 2017, indicated a balance of over XXXX XXXX XXXX XXXX XXXX Naira.19 Mrs. A did not provide any further detail on this point despite being pointedly asked why her husband's bank statements showed that they had money and his letter of support stated that he would provide for her and their daughter. I further note that Mr. A's bank statements for the period of XXXX 2016 to XXXX 201720 show a consistently healthy bank account, indicating that this family generally has a strong and steady flow of income. While I acknowledge that business can go through rough periods which deplete or diminish resources, Mrs. A has not provided sufficient information or evidence to establish how her family lost so much money in a matter of three months, such that they had to turn to borrowing to finance travel for two to the United States. Additionally, Mr. A's affidavit in support of his wife states that he did, in fact, financially support his wife and daughter in buying their tickets to flee.21 I therefore find Mrs. A's explanation vague and, in light of my determination that she has already embellished evidence in her psychological reports, I find her lack of detail undermines the trustworthiness of her testimony. I confirm the RPD's finding that the Appellants' delay in departure is not reasonably explained and this undermines their credibility. Police Report [32] The Appellants submitted a police report to the RPD in support of their claim that they will not get police protection. The RPD found this document fraudulent because the letterhead and stamp appeared to have been printed, because there were typographical errors, and because the police station's email was a yahoo.com address. The Appellants have argued that the RPD's finding was incorrect because the deciding Member is not an expert on Nigerian police documents and because misspellings do not necessarily indicate fraud. I agree with the Appellants that the RPD was wrong to find the report fraudulent, but, as I will explain, I do not find the report particularly helpful in establishing that the Appellants will continue to be at risk. [33] I agree with the Appellants that two minor typographical errors do not make a document suspect. What was more concerning was the RPD's finding that the authorizing/authenticating stamp appeared to have been printed along with the rest of the letter, which would suggest that the entire document was forged. For this reason, I requested the original document and to my eye it did not appear that the stamp was printed underneath the text of the letter. It did not appear any different from the stamps on the affidavits that were submitted in terms of how the ink of the stamp overlay the printed text. I therefore conclude that this is not a clear indication of a fraudulent document. [34] Similarly, although the letterhead does appear a little fuzzy or blurred, the RPD's concerns that it was printed with an inkjet printer are not grounded in any objective evidence stating that this blurry letterhead is uncommon or abnormal. I have reviewed the documentary evidence in the National Documentation Package (NDP) and viewed the samples of genuine Nigerian police reports and letters.22 I note that there is no consistency in the letterhead that is used and that many of those versions appear to be as blurry as the document provided by the Appellants. I find that this is not a good indicator of fraud. [35] The RPD's other concern was that the police station used a yahoo.com email account.23 The Appellants provided affidavits affirming that they had no knowledge of how the police printed their documents or how the police were organized. They argued that Nigerian police are different and may use such accounts. I agree. While North American government agencies like the police would not have official email accounts with yahoo.com or gmail.com addresses, the same cannot be said for other governments. Again, I have reviewed the country conditions evidence and note that some of the official and original sample Nigerian police documents contain gmail.com email addresses for official correspondence.24 On that basis, and given the fact that different email addresses appear on these documents, I do not find it unusual that the Appellants' police report might have a yahoo.com address. [36] On the basis of all of these findings, I conclude that the RPD was wrong to find this document fraudulent. Assessment of the Police Report [37] The police report indicates that Mrs. A learned about her in-laws' desire to circumcise her daughter in XXXX 2017. It further indicates that after being threatened on XXXX XXXX XXXX 2017, Mrs. A reported to the police who then took her report and assigned an officer to investigate. The report states that this officer took statements from Mrs. A's in-laws and that the parties were then advised to settle the matter amicably because it was a family issue. [38] I find that this report corroborates Mrs. A's claims that she was threatened. This is consistent with the testimony that I have already accepted. It is also consistent with country conditions evidence that police officers are often reluctant to intervene in family and traditional matters.25 However, the fact that police are reluctant to intervene in these matters does not translate to a determination that further police intervention was required. The country conditions evidence, discussed below, indicates that parents who oppose FGM are generally not harmed even if they are at odds with family members. And I note that, in this case, Mr. A has not faced any threats. Consequently, I find that the report demonstrates that Mrs. A reported a threat that was investigated and characterized by the police as a family matter. However, given the particular facts of these Appellants and the absence of risk for Mr. A, I do not find that this report provides any further probative evidence on which to conclude that the Appellants might face risk in Nigeria. On that basis I find it of limited value in establishing that they face a serious possibility of persecution. The Gender Guideline and Guideline related to Minor Claimants [39] The Appellants have argued that the RPD did not consider the Gender Guideline26 or the Guideline related to minor refugee claimants.27 They argue, without providing examples, that the decision "is full of the kind of presumptions and microscopic logic the Guidelines warn against"28 They argue that there is a presumption of truthfulness that applies and that the RPD had to demonstrate a specialized knowledge of the gendered dimension of the claim.29 And finally, the Appellants argue that the RPD should have utilized the reports by Mr. XXXX and Dr. XXXX and that it should have applied and followed the frameworks articulated in the Guidelines. [40] I do not see merit to the Appellants' arguments. As I have already stated, the reports by Mr. XXXX, Dr. XXXX and Ms. XXXX are unreliable due to the lack of credibility of the information on which they are based, and, having articulated now a few significant concerns with Mrs. A's testimony, I find that the presumption of truthfulness has been rebutted. [41] In terms of the applying and following of the relevant frameworks, I note that Mrs. A, an adult, was the only individual to testify, as she was the designated representative for her daughter. I also note that the RPD, at multiple points throughout the hearing, offered accommodations, such as breaks and repetition of questions,30 to facilitate Mrs. A's testimony. And I note that the Appellants have not specified what kinds of presumptions or microscopic logic the RPD engaged in that was counter to the Guidelines. I have reviewed the record, and I do not see any evidence of these kinds of errors. [42] With respect to arguments that the RPD ought to have demonstrated a specialized knowledge of the gendered dimension of the claim, I note that the Appellants have not explained how the RPD failed to demonstrate awareness of the gendered dimension of the claim. I am cognizant of the references made to country conditions evidence about violence against women and the lack of protection against the various forms of violence that women and girls experience in Nigeria.31 However, the Appellants have not articulated how this evidence-largely about spousal abuse-applies in this context of FGM and where Mrs. A's husband supports her in standing against his family's wishes to have their daughter circumcised. Nor is it explained in the context of Mrs. A's claim of never having experienced physical violence by her family members. Consequently, while I accept that there are high rates of violence against-and poor protections for-women and girls in Nigeria, I find that this information does not directly apply to or support the Appellants' claim of persecution on the basis of FGM. I therefore find that the RPD did not fail to apply the relevant Guidelines, and I turn to consider the Appellants' argument that evidence was ignored and to my own assessment of the well-foundedness of the Appellants' claim. Ignoring Evidence and Credibility of Fear of Physical Harm [43] The Appellants have argued that evidence was ignored. I agree insofar as the police report is concerned. I do not find that the RPD ignored other evidence. There is a presumption that the RPD has reviewed the entire record. It is not required to mention every single piece of evidence, only those that are most relevant. [44] Nevertheless, I have reviewed the evidence in the record and have found that the police report is of some value but also that the evidence is that Mrs. A has never been physically harmed. She testified that her husband is doing well; that he is at peace and continuing to live in their family home without trouble because he is part of the family, and so they will not harm him. I find that this indicates a reluctance on the part of Mrs. A's in-laws to enforce the practice of FGM or to pursue the Appellants using any means necessary. [45] I have considered the letters from the XXXX XXXX XXXX, XXXX XXXX XXXX XXXX XXXX and Mrs. A's certificates and find that these speak more to her volunteer work and skills advancement in Canada. I find that these are more relevant to a humanitarian and compassionate grounds application than a refugee risk assessment. [46] I accept the affidavit of Mrs. A's sister32 and the death certificate33 of her daughter, and I accept that Mrs. A's niece died as a result of FGM. I further accept that Mrs. A may have felt the need to hide at her friend's home given the affidavit34 evidence to that effect. However, I do not give the email from Mrs. A's friend much weight, as it is not a sworn statement and because it contains little identifying information about the author aside from an email address. I find that this evidence is not sufficient to credibly establish that Mrs. A's in-laws are inclined to pursue violence. [47] I further find that the documentary evidence, particularly the Response to Information Request (RIR) NGA106183, shows that the situation in Nigeria has been changing such that parents are often able to oppose the practice of FGM without significant consequence.35 Although Mrs. A stated that tradition is important to her in-laws, she did not provide any information to indicate why their situation is different from those of the parents described in the country documents. There are no outside actors or societies with a vested interest in seeing her daughter circumcised. The push for circumcision is, according to the Appellant, a push from within the family. Only her husband's mother and three siblings are demanding FGM. Mrs. A has the support of her husband. On the basis of this evidence, I see no reason to discount the information contained in the RIR which states that the decision whether or not to circumcise lies primarily with the mother unless it is a traditional household, in which case the father decides.36 The evidence also indicates that grandparents can be influential but suggests that this is highly uncommon. What appears to be more common is that, when both parents are in agreement about refusing FGM, they face neither retaliation nor threats.37 I find the fact that Mr. A has been able to live free from threat38 suggests that his family members are not inclined to retaliate against the Appellants for their failure to conform to tradition. [48] Additionally, I note39 that the Appellants lived in Lagos, which is not located in the Nigerian South-East or South-South or in a rural area, which the evidence indicates are the areas where retaliation, ostracism and harassment are more likely to occur as a result of refusal to follow FGM traditions. Moreover, although the evidence shows that families may sometimes mount increasing pressure on family members to push them to agree to circumcising a daughter,40 the Appellants' evidence has been that Mr. A's family have not been mounting any pressure on him at all. He is "in peace" and "safe".41 As a result of my review of the evidence, I find, on a balance of probabilities, that the Appellants' claim that their in-laws will resort to violence to enforce a tradition of FGM is not credible. Consequently, I find that they do not face a serious possibility of persecution. CONCLUSION [49] On the basis of the totality of the evidence and the findings above, I find that the Appellants have not demonstrated that the RPD's decision was incorrect or that they face a serious possibility of persecution on the basis of their membership in a particular social group-girls facing FGM and family members under threat for opposing the practice. I further find that they have not demonstrated that they face a risk of torture, or of cruel and unusual treatment or punishment. [50] I therefore dismiss the appeal and confirm the RPD's decision that the Appellants are neither Convention refugees nor persons in need of protection, pursuant to paragraph 111(1)(a) of the IRPA. (signed) "Dilani Mohan" Dilani Mohan November 12, 2019 Date 1 Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson, pursuant to Subsection 65(3) of the Immigration Act, IRB, Ottawa, November 13, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in paragraph 159(1)(h) of the Immigration and Refugee Protection Act. https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/GuideDir04.aspx 2 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA. 3 Exhibit RPD-1, RPD Record, XXXXX Report, at p. 179. 4 Exhibit RPD-1, RPD Record, RPD's Reasons and Decision, at para 22. 5 Exhibit RPD-1, RPD Record, RPD's Reasons and Decision, at paras 23-24, and para 49. 6 Exhibit RPD-1, RPD Record, RPD's Reasons and Decision, at paras 49 and 51. 7 Exhibit RPD-1, RPD Record, RPD's Reasons and Decision, at para 48. 8 Exhibit RPD-1, RPD Record, RPD's Reasons and Decision, at para 47. 9 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at para 8. 10 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at para 8. 11 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at para 8. 12 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at para 8. 13 Exhibit RPD-1, RPD Record, Dr. XXXXXXX Letter, at p. 188. 14 Exhibit RPD-1, RPD Record, Dr. XXXXXX Letter, at p. 187. 15 See Psychotherapy Act, 2007, S.O. 2007, c. 10, Sched R, at s. 4; see also Regulated Health Professions Act, 1991, S.O. 1991, c. 18, at s. 27. 16 Exhibit P-3, Rule 29 Application, late submission received October 18, 2019, at p. 6. 17 Exhibit RPD-1, RPD Record, RPD's Reasons and Decision, at paras 34-41. 18 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at paras 15-16. 19 Exhibit RPD-1, RPD Record, Bank Account Balance, at p. 118. 20 Exhibit RPD-1, RPD Record, RPD Record, Bank Statements for TRV Application, at pp. 106-118. 21 Exhibit RPD-1, RPD Record, Husband's Affidavit, dated XXXX XX, 2018, at p. 202, at para 5. 22 NDP for Nigeria (December 21, 2018), item 10.3, Immigration and Refugee Board of Canada (IRB), RIR NGA106208.E, November 5, 2018, at pp. 9-10; and item 10.5, IRB, RIR NGA106209.E, November 5, 2018, at pp. 6-8. 23 Exhibit RPD-1, RPD Record, RPD's Reasons and Decision, at paras 26-27. 24 NDP for Nigeria (December 21, 2018), item 10.5, IRB, RIR NGA106209.E, November 5, 2018, at pp. 6. 25 NDP for Nigeria (December 21, 2018), item 5.12, IRB, RIR NGA106183, October 29, 2018, at p. 5. 26 Supra, endnote 1, Guideline 4. 27 Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues, Guideline issued by the Chairperson, pursuant to Subsection 65(3) of the Immigration Act, IRB, Ottawa, September 10, 1996 as continued in effect by the Chairperson on June 28, 2002 in paragraph 159(1)(h) of the Immigration and Refugee Protection Act. https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/GuideDir04.aspx 28 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at para 39. 29 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at para 40. 30 Audio Recording of the RPD Hearing, at 00:24:35; 01:00:00; and 01:22:19. 31 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at paras 26-35. 32 Exhibit RPD-1, RPD Record, RPD Record, at p. 192. 33 Exhibit RPD-1, RPD Record, RPD Record, at p. 193. 34 Exhibit RPD-1, RPD Record, RPD Record, at p. 205. 35 NDP for Nigeria (December 21, 2018), item 5.12, IRB, RIR NGA106183, October 29, 2018. 36 Ibid., NDP for Nigeria (December 21, 2018), item 5.12, RIR NGA106183, at pp. 1-2. 37 Ibid., NDP for Nigeria (December 21, 2018), item 5.12, RIR NGA106183, at p. 2. 38 Audio Recording of the RPD Hearing, at 00:35:05. 39 NDP for Nigeria (December 21, 2018), item 5.12, RIR NGA106183, NGA106183, October 29, 2018, at pp. 3-4. 40 NDP for Nigeria (December 21, 2018), item 5.28, IRB, RIR NGA105628, September 13, 2016, at p. 11. 41 Audio Recording of the RPD Hearing, at 00:35:05. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-33619 TB8-33620 RAD.25.02 (April 04, 2019) Disponible en français 18 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