MB8-26041

RAD File / Dossier de la SAR : MB8-26041 MB8-26042 / MB8-26043 / MB8-26044 MB8-26045 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 Montreal, QC Appel instruit / entendu à Date of decision November 18, 2019 Date de la décision Panel Max Wolpert Tribunal Counsel for the persons who are the subject of the appeal Melissa Singer 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, XXXX XXXX XXXX, XXXX XXXX XXXX, XXXX XXXX XXXX, and XXXX XXXX XXXX, citizens of Nigeria and the United States of America (USA), appealed a decision of the Refugee Protection Division (RPD), dated November 5, 2018, rejecting their claims for refugee protection because they were not credible and because they would have an internal flight alternative in Nigeria. I agree with the RPD that these claims are not credible, so I am rejecting these appeals. Allegations [2] The Appellants' allegations as originally set out in their Basis of Claim forms were well summarized in the RPD reasons as follows, with my bracketed addition: [3] The principal claimant is XXXX XXXX XXXX and the claims of his wife and daughters are based on his narrative. The principal claimant made the following allegations in his Basis of Claim (BOC) form. [4] The principal claimant, 35 years old, was born in Omu Aran, Nigeria. His wife, 35 years old, and his Nigerian-born daughters, 6 years old and 4 years old, were born and resided in Lagos, Nigeria. The claimant's youngest daughter was born in the USA in XXXX 2017. The claimants are members of the Yoruba ethnic group. The principal claimant alleges that his family is accusing his wife of being a witch because she did not bear any male children. An oracle informed his family that his daughters would inherit witchcraft from her. [5] In 2010, the principal claimant and his wife were married. His family is very traditional, believes in spirits and is devout to an oracle. After their first daughter was born in 2011, the principal claimant's wife underwent some rituals to ensure that the second child would be male. [6] In XXXX 2014, another female child was born. They were summoned to the principal claimant's village and were told that they would be required to perform rituals in order to remove the witch spirit. They were told that the principal claimant's wife and two daughters must undergo female genital mutilation (FGM) before the eldest daughter turned six years old, which would be before XXXX 2017. They were also told that his wife would be required to dance naked in an open market and undergo FGM in public. The children would also be required to undergo tribal marks on their faces. The principal claimant refused and returned to Lagos. [7] In XXXX 2015, members of the principal claimant's family went to see them in Lagos in order to confirm a date. There was a fight and the claimant's wife ran into the street and was hit by a motorcycle and was injured. The next day the principal claimant reported the event to the police. Three days later, the principal claimant returned to the police station with his wife. They were advised by the police officer to comply with family traditions. The police officer took photos of the claimant's wife and children in order to notify the public in case they escaped. [8] The claimant sought the assistance of an uncle and was also told by his uncle that his eldest daughter would be required to marry the head priest at the age of 10 years old. The principal claimant decided that his wife would apply for a US visa. [9] On XXXX XXXX, 2015, while returning from the US embassy, the principal claimant's wife, Ms. XXXX, was kidnapped [when she took a taxi which was contained "adversaries"] and was missing until XXXX XXXX, 2015. She was found walking on a road with incisions over her body and bleeding in her groin area. She had been subjected to forced FGM. When she was found, she did not recognize the principal claimant nor her mother and had no recollection of any of the events. [10] The principal claimant's wife subsequently went to stay with a maternal aunt who is a traditional medicine practitioner living in Osun State. In XXXX 2016, the principal claimant's wife travelled to the USA and returned a few weeks later and applied for US visas for the children. The children obtained US visas in XXXX 2016, and the principal claimant obtained his US visa in XXXX 2016. [11] In XXXX 2017, the principal claimant's wife was five months pregnant and when she went for an ultrasound it was discovered that she was carrying another female child. Ms. XXXX travelled to the USA on XXXX XXXX, 2017. The principal claimant joined her on XXXX XXXX, 2017. On XXXX XXXX, 2017, their third daughter was born in Texas. Ms. XXXX returned to Nigeria with their third daughter in order for her daughter to undergo rituals. In XXXX 2017, she returned to the US with all three children. The claimants travelled to Canada on September 20, 2017. Their BOC forms were received on October 12, 2017. RPD decision [12] The RPD rejected these claims because it found them not credible and also because it held that, even were they credible, the Appellants have a viable internal flight alternative in Abuja or Port Harcourt. Role of the RAD [13] When reviewing the RPD decision, I am required independently to assess the evidence 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.1 ANALYSIS Credibility [14] The RPD made at least ten negative credibility findings. In light of my determinative findings below, I have only analyzed some of them in these reasons. XXXX 2015 report to police-inconsistency: day of relatives' visit or next day-RPD correct [15] In the BOC, Mr. XXXX described the acrimonious visit by his relatives to the Appellants' home in Lagos, which led to Ms. XXXX running out and being hit by a motorcycle, as having happened "in the mid of the month of XXXX 2015". He also wrote that he went to report to the police station, "the day after [the visit] it was on XXXX XXXX XXXX 2015."2 [16] Mr. XXXX testified that after the relatives' visit, and after bringing Ms. XXXX to the hospital, he went to the police station to lodge a complaint.3 Asked if he went to the police station "the same day that it happened", he replied that it had been the same day.4 Asked again when he first went to the station, he hesitated for several seconds. Was it after he left Ms. XXXX at the hospital, he was then asked? "Yes." So, it was the same day the relatives came? Again "yes".5 [17] Asked to explain why the BOC said it had been the next day, Mr. XXXX said that he had gone to the police station after he brought Ms. XXXX to the hospital. When the apparent inconsistency was again pointed out to him, he answered that he "would go with" what he wrote, the following day. When what he wrote, including the XXXX XXXX date, was summarized to him, he said yes, [it had been] the day after.6 [18] The RPD member asked why he had earlier testified it [the police station visit] had been the same day. Mr. XXXX responded that he was confused, that's all, and apologized.7 [19] The RPD member found this explanation unreasonable. She emphasized that it was a "relatively recent" event. She held that she would not expect Mr. XXXX to be confused or inconsistent whether he went to the police after he brought Ms. XXXX to the hospital or the next day. She concluded that the credibility "of this alleged event"8 was undermined.9 [20] Appeal counsel submits that Mr. XXXX confusion was a reasonable explanation. She also points to a police report the Appellants filed, which she contends corroborates the BOC statement that Mr. XXXX went to the police station the day after the motorcycle hit Ms. XXXX.10 [21] The alleged events would have occurred 3.3 years before the RPD hearing. That is enough time to allow a measure of imprecision. Yet what is striking here is the contrast between one spouse taking the other one, just injured, to the hospital and then going the same day to the police, versus doing so the next day. That, to my mind, is a qualitative difference important enough to be unlikely to be so confused. [22] As for the police report document, while it states that Mr. XXXX reported the alleged events to the station on XXXX XXXX, 2015, it does not say whether the relatives' visit and the accident Ms. XXXX suffered happened the same or the previous day. It thus does not clear up Mr. XXXX inconsistency. [23] But is this document sufficient to corroborate that in any event Mr. XXXX reported to the police as he alleged on XXXX XXXX, 2015? The RPD member gave it no probative value for two reasons. The first was Mr. XXXX inconsistency discussed above. That by itself would merely beg the question (unless the inconsistency alone settled the question beyond reasonable doubt, which I do not find). The second reason was that the police document, not a copy of the alleged XXXX 2015 report but rather a purported summary of it by a named inspector, had been prepared in XXXX 2017, months after the Appellants left Nigeria. The RPD member, noting that the adult Appellants are well-educated with extensive world travel experience, found it unreasonable that they hadn't tried to document their problems before leaving the country to seek protection.11 [24] Asked why the report, and the medical report discussed below, were dated and obtained in XXXX 2017, Ms. XXXX explained that the Appellants "never knew a case like this would come up", and they had asked for the reports after their then-refugee counsel asked if they had proof.12 While I would not lightly find that obtaining corroborating documents shortly after claiming protection in Canada seriously undercuts their authenticity or weight, in the particular circumstances of this case I do so. The quote from Ms. XXXX indicates why. The Appellants' eventual final exit from Nigeria was the last of a series of exits between XXXX 2016 and XXXX 2017, which followed alleged mounting harmful and alarming events and threats. According to the BOCs, Mr. and Ms. XXXX had in fact concluded by mid-2015, shortly after the alleged event described in the report that the only way out was to leave Nigeria.13 Given the extensive build-up to their eventual last departure and their protection claim, and the numerous dry runs at leaving due to the alleged grave situation, I find it compelling that these sophisticated adult Appellants failed to request these documents before they left Nigeria. That is because, contrary to Ms. XXXX assertion, they clearly did know by then that a protection claim like this was coming up. I thus find that the RPD member was correct in her treatment of the police document. Medical report [25] The Appellants also filed a brief medical report, dated XXXX XXXX, 2017, from a physician medical officer at the XXXX XXXX Hospital.14 It certifies that Ms. XXXX was brought to the emergency unit on XXXX XXXX, 2015, having said to have been hit by a motorcycle. It lists her injuries and discharge three days later. [26] The RPD member gave the report no probative value for the same reasons as the police document. Addressing the RPD's finding about the Appellants not attempting to document their problems before leaving Nigeria, Counsel submits that there should be no expectation whatsoever to document problems.15 That is correct as a starting point,16 but is subject to important exceptions, including where, as here, there is reason to doubt the Appellants' own written or oral evidence. [27] In any event, the report at best could corroborate only that Ms. XXXX was in a pedestrian-motorcycle accident. In the result, the report has very little probative value. Kidnap and forced FGM-inconsistency in dates-RPD correct [28] Ms. XXXX was issued a visa by the American consulate in Lagos on XXXX XXXX XXXX 2015.17 The adult Appellants testified that she would have gone there several days earlier to apply for it.18 Their BOC stated inaccurately that Ms. XXXX visa was granted XXXX XXXX, 2015.19 It says in the same paragraph that she was kidnapped while returning, the context strongly implying that she had just left the US Consulate. She, in fact, testified that she was kidnapped immediately after leaving the US Consulate in Lagos right after her visa interview.20 She said this happened XXXX XXXX XXXX 2015, and that she had been held for a week;21 the BOC said the same, specifying that she was found XXXX XXXX XXXX 2015.22 [29] In the RPD reasons, the Member noted that Ms. XXXX US visa was granted on XXXX XXXX, 2015, which was some twenty days before the Appellants said she was kidnapped right after her visa interview. The member found the visa issuance date contradicted the date and circumstances surrounding the alleged kidnapping. She found that there is no reasonable explanation for this.23 This implicitly formed part of the RPD's negative credibility findings about the alleged kidnapping and its consequences. Counsel submits that this is an instance where the RPD lost focus of the big picture, at least when read together with its finding about what happened to Ms. XXXX while she was allegedly in the kidnappers' custody,24 which I will discuss later. [30] Though the RPD repeatedly asked the adult Appellants about the date of the kidnapping, and the testimony was that it happened right after the visa interview, the Member did not point out during the hearing that the visa had in fact been issued XXXX XXXX rather than XXXX XXXX XXXX 2015. The Appellants were not confronted with this. Does that mean that the RPD finding here is incorrect? In my opinion, in the circumstances of this case it does not. First, the inconsistency was between the Appellants' BOC and testimony versus information in Ms. XXXX passport, a document they themselves brought to Canada and filed25 and with whose contents they would be familiar. In such circumstances, there is no obligation on the part of the RPD or the RAD to confront the Appellants regarding their own inconsistencies.26 Second, the Appellants were specific about the dates of this event in their BOC and repeatedly gave the same dates in their testimony when asked about them at various points in the RPD hearing. [31] I note that both the affidavits from Ms. XXXX mother27 and her aunt28, as well as the affidavit from Mr. XXXX uncle,29 do not say when her alleged kidnapping occurred. They thus do not provide any counterweight to this defect in the Appellants' own evidence. [32] Taking all this into account, I find the RPD was correct in this finding. Kidnap and forced FGM-Ms. XXXX able or not to recall events-RPD [33] In the BOC narrative, Mr. XXXX wrote that after Ms. XXXX had been kidnapped on XXXX XXXX, 2015, he received a call warning that she would be killed were he to report the matter. On XXXX XXXX, 2015, he continued, Ms. XXXX was discovered along an express road, bleeding due to her forced FGM. She could recognize neither him nor her mother, "she had lost her memories and could not recall any of the events." Her mother and Mr. XXXX took her to the home of her aunt, a traditional medical practitioner,30 where she regained consciousness. The BOC narrative contained no other details of what allegedly happened between Ms. XXXX alleged abduction and her release.31 [34] In her RPD testimony, Ms. XXXX described in some detail what she said had happened to her during her first three days in captivity: Until the third day, she had not been beaten. She had been offered food and water, but took only the latter. On probably the third day, after her captors told her that her husband did not want to co-operate, she began shouting for help. She was slapped, then hit with a stick. She began shouting again. She was then beaten terribly. This eventually caused her to pass out. When she came to (several days later), she was with her aunt.32 [35] (Later, Mr. XXXX testified that the kidnappers never collected any ransom because, Ms. XXXX told him, she had almost died in their custody and they did not want that, so they had to abandon her.)33 [36] The RPD member told Ms. XXXX that the apparent difference between "could not recall" and her testimony was confusing. She answered that she had been beaten terribly, but that "of course, after a period of time the memory is going to come."34 [37] The RPD member found that if the kidnapping had happened, she would have expected that the BOC would have mentioned more details of the abduction outside the consulate, including the number of kidnappers (of which Ms. XXXX testified there were three) and the subsequent beatings. The member took the BOC statement that Ms. XXXX had had no recollection to be an explanation why there were no details in the written narrative. If, in fact, the events were true but Ms. XXXX had no recollection of them, the RPD would have expected her not to have recalled at the hearing the details to which she testified.35 [38] Counsel submits that the RPD imposed unwarranted expectations on Ms. XXXX. In addition, credibility cannot be impugned, she argues, simply because Ms. XXXX displayed some capacity of recollection at the hearing.36 [39] As the RPD member indicted in paragraph 9 of her reasons,37 the BOC words are unquestionably a statement that Ms. XXXX could not recall at the time she was found the alleged events of her time in captivity. Whether her lack of recollection lasted longer than that, and if so whether until after the BOC was written, was not made clear there. [40] I do not have the benefit of psychological expert evidence or specialized knowledge to assist me. In my lay opinion, it is not implausible that someone in the state Ms. XXXX allegedly was in when she was found, may have been unable to recall the alleged events right then but could do so later. [41] Assuming that to have been so, it is highly unlikely, nor did the Appellants state, that memory of the events returned only after the BOC was signed two years later. So, the ultimate question is whether the lack of detail in the BOC justifies the RPD conclusion here. In my opinion, it does. The details in question are of obvious importance. It is difficult to understand how such well-educated and sophisticated claimants, also represented by a lawyer when the BOC was prepared, could have failed to include them were they true. I thus find that the RPD did not err here, Call(s) from kidnappers-RPD correct [42] In the BOC narrative, Mr. XXXX wrote that he received a call from one of the kidnappers, warning that Ms. XXXX would be killed were he to report her missing.38 He testified that he received that call, from a number not already stored on his phone, the day after she went missing.39 He added that the kidnappers called again four days later, from a different number, and asked for XXXX XXXX naira ransom. He arranged that afternoon to obtain about XXXX XXXX XXXX XXXX cash. The kidnappers called again and declined that amount, demanding the full XXXX XXXX. He pleaded for time and that they not harm his wife. Later his mother-in-law phoned to say they had found Ms. XXXX by the express road.40 [43] Mr. XXXX testified that the kidnappers never collected any ransom because, Ms. XXXX told him, she had almost died in their custody and they did not want that, so they had to abandon her.41 [44] The RPD member asked Mr. XXXX why he had not mentioned in the BOC the phone calls, the ransom and the threat not to go to the police. That question was inaccurate about the threat omission and the first phone call, which conveyed it; they were in the BOC. Mr. XXXX answered that it was because the time that the Appellants had been given to prepare the form was fairly short and they hadn't had time to put everything in. He added that they had "explained everything" during "the interrogation", however.42 [45] The RPD member found the absence from the BOC of the phone calls other than the first one, and of the ransom demands, was a very important inconsistency and omission. She was not satisfied with Mr. XXXX explanation of having been short of time. As he had mentioned one threatening call, she would have expected him to mention the other calls and ransom demand if in fact this is what had occurred. The RPD found that lack of time could not reasonably explain these omissions.43 [46] Counsel submits that this was a glaring error of unwarranted expectations, and that lack of time to mention everything was reasonable in Mr. XXXX circumstances. She adds that the RPD denied him any reasonable margin of error.44 I disagree. The omitted alleged facts were not mere details, for which a margin of error may be appropriate in analyzing their significance in complying with the BOC instructions to include everything that is important. They were dramatic and important events. Mr. XXXX testified that the Appellants had mentioned them when they were asked about their refugee claims after coming to Canada. Including them would have added only minutes to the form preparation time. In these circumstances, I find that the RPD was correct to hold that these omissions further undermined the credibility of the alleged event of which they formed part. Stay with aunt-continuous or intermittent-RPD incorrect [47] The BOC said that after being found on XXXX XXXX, 2015, Ms. XXXX was treated and healed at her aunt's place (in Osun State). Meanwhile, it adds, their daughters (who Ms. XXXX testified were brought to her by her mother) stopped going to school due to fear of the "unknown adversaries". The BOC continues that Ms. XXXX travelled to the USA in XXXX 2016 and returned weeks later to apply [for visas] for the children, which were granted in XXXX 2016.45 [48] The RPD member, who later explained that she had taken the BOC to mean that Ms. XXXX was with her aunt for four months,46 asked her how long she had stayed with her aunt. She replied that she had done so for all of the first week. Then she had started "moving out", though she was at her aunt's for about four months or more.47 After that first week, she had resumed working at her job in Lagos (about a 3-1/2 hour drive each way from her aunt's). She had done so until she resigned in XXXX 2015 because she couldn't concentrate. Asked about her travel to work in Lagos, Ms. XXXX said she used to go to Lagos on and off, because she had been missing work.48 Asked to elaborate, she said she would sometimes stay over with friends in Lagos, then go back to Osun State to see her children. Asked how soon after her kidnapping she was able to work, she said a week. When the RPD member expressed surprise, Ms. XXXX explained that she had been afraid of losing her job, but she later had to resign when the trouble became too much.49 [49] The RPD member then said her impression from reading the BOC had been that Ms. XXXX had just stayed at her aunt's, under her care, until she travelled to the USA in XXXX 2016. Ms. XXXX said yes, reiterating that she had come and gone, her children still with the aunt, until she travelled in XXXX.50 [50] The RPD member then referred to an affidavit from the aunt.51 It states that Ms. XXXX "was in my custody for about four months where she was resuscitated" before she travelled to the USA out of fear of being killed. The RPD member said that when she read the affidavit and the BOC, it sounded to her like Ms. XXXX had just stayed with her aunt. Ms. XXXX responded that her aunt had written the affidavit from "her own mind" and that it was the aunt's own statement. She repeated that she stayed with the aunt, but she had come and gone.52 [51] The RPD member found that the above showed confusion and inconsistency in the evidence. She wrote that Ms. XXXX testified that she stayed with her aunt for four months, and later changed her testimony to state that she had continued working. That is incorrect, at least as far as the testimony is concerned. The first time the Member asked how long she stayed with her aunt, Ms. XXXX answered that "Consistently, I was there for about a week before I started moving out. So I was there for about four months and over."53 The next question put to Ms. XXXX was whether she had been able to continue working. She answered yes, she had continued till XXXX [2015].54 There was never any testimony about staying with the aunt for four solid months. I also note that in Ms. XXXX Schedule A immigration form, signed about 2-1/2 weeks before the BOC, Ms. XXXX wrote that she had worked at her then-job in Lagos up till XXXX 2015,55 consistent with her testimony. [52] That leaves the BOC statement and the aunt's affidavit. The former says that Ms. XXXX was taken to her aunt's, that there she had her wounds treated and healed, and that she travelled to the USA in XXXX 2016. It neither mentions nor contradicts her having returned to work in the interim. The affidavit says she was in the aunt's custody for four months where she was resuscitated before travelling to the USA. That does give an impression of continuity, as do the two documents read together. Given, however, the RPD's factual error, the moderate ambiguity in the documents' wording, and the immigration form work entry, I find that the RPD was incorrect in this particular finding.56 Trip to Spain XXXX XXXX to XXXX XXXX 2015-RPD correct [53] Shortly thereafter, the RPD member asked Ms. XXXX whether she had left Nigeria at any other time after the kidnapping but before her XXXX 2016 trip to the USA. She replied that she had done so in XXXX. She explained that she had gone to Spain for an office training course that lasted about a week, later insisting she had been there for only three days, not two weeks as the Member suggested. The RPD member pointed out that her passport stamps showed she in fact had been in Spain from XXXX XXXX to XXXX, 2015.57 Ms. XXXX repeated those dates as a question, then said she couldn't really remember.58 [54] The RPD member found that, along with the above matter of the continuity of the stay with the aunt, this was also an inconsistency in Ms. XXXX evidence about her state following the alleged kidnapping, torture and forced FGM that undermined the credibility of those allegations.59 Counsel made no submission on this finding. [55] Ms. XXXX never testified that she had not travelled out of Nigeria in XXXX 2015. Yet there was no indication of this in the BOC, nor did she mention the course in Spain in her immigration forms, in contrast to the XXXX 2016 USA course and previous foreign courses that she did list.60 Together with her marked error in the length of time she had been out of the country in XXXX 2015, I find this omission to be significant and not adequately explained. Given that Ms. XXXX did at least testify to some XXXX 2015 trip, however, this finding would not have been determinative or of highly serious importance. The Appellants' key allegation, even if charitably adjusted, cannot be true [56] More important, however, is a highly significant, in fact determinative, inconsistency, which I have just come upon at this point in drafting my reasons: Ms. XXXX travelled outside Nigeria to Spain from XXXX XXXX to XXXX, 2015.61 [57] While the BOC said she was kidnapped on XXXX XXXX XXXX 2015, right after leaving the US Consulate the day her US visa was granted, and released XXXX XXXX, 2015, recall that the visa was in fact issued XXXX XXXX XXXX 2015.62 While I have already found that the RPD was correct to find this a significant and unexplained inaccuracy in the Appellants' chronology, it arguably might have left open the question whether it may have been just an error in the Appellants' recollection, i.e. whether the alleged kidnapping happened XXXX XXXX rather than XXXX XXXX, 2015.63 [58] The mid-XXXX trip, however, seals the issue. The Appellants alleged that Ms. XXXX was a captive for eight days immediately after the US visa was issued,64 and then spent a solid week recovering at her aunt's place in Osun State. Using the correct US visa issuance date as a starting point, that would have kept Ms. XXXX in Nigeria until at least about XXXX XXXX, 2015. Yet for four days of that period, she was in Spain. [59] In fact, the departure date for Spain would have been only two days after Ms. XXXX alleged rescue. She even testified that she only regained consciousness after the third day of that period.65 [60] What is more, the Appellants alleged that Ms. XXXX, except for a partially acknowledged trip to Spain in XXXX 2015, remained in Nigeria after her US visa was granted until XXXX 2016. [61] The Appellants were not confronted with this inconsistency before the RPD, nor am I doing so. First, the inconsistency was between the Appellants' allegations, even taken in their most charitable light, and information in Ms. XXXX passport. That is a document they themselves brought to Canada and filed66 and with whose contents they would be familiar. In such circumstances, there is no obligation on the part of the RPD or the RAD to confront the Appellants regarding their own inconsistencies.67 Second, the facts are incontestable. The question is whether, not why, Ms. XXXX travelled out of Nigeria ten days after her US visa was issued. That she did is irrefutable. [62] On the basis of this credibility finding alone, the RPD conclusion that the Appellants were not credible generally was correct. The RPD findings that I have found correct above reinforce this conclusion. In these circumstances, I will not analyze the RPD's other negative credibility findings or its finding that the Appellants also have an IFA. [63] I acknowledge that Ms. XXXX filed Canadian medical evidence confirming that she has suffered FGM.68 The examining physician expressed no opinion on when that happened. In light of my finding above, it cannot have happened in, or approximately in, the circumstances the Appellants alleged. [64] I have also considered the Chairperson's Guidelines on Women Refugee Claimants Fearing Gender-related Persecution and on Child Refugee Claimants, including their guidance on assessing the testimony of or the risks to such claimants. In light of the objective impossibility of the key allegation in these claims, this does not change my conclusion. [65] XXXX XXXX XXXX, who is two years old, is a citizen of the USA. No evidence was presented that she might be persecuted, or would risk any of the harms set out in IRPA section 97. CONCLUSION [12] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellants XXXX XXXX XXXX, 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 November 18, 2019 Date MW/lp 1 M.C.I. v. Huruglica, 2016 FCA 93, paras. 70 and 103. Suggest to also cite Rozas del Solar. 2 RPD record, page 30, first full paragraph 3 Audio recording 0:38 4 Audio recording 0:39 5 Audio recording 0:39 to 0:40 6 Audio recording 0:43 to 0:44 7 Audio recording 0:45 8 Apparently meaning the relatives' visit and the report to police, and the connection to, though not necessarily the occurrence of, the motorcycle collision. 9 RPD reasons, paragraph 14 10 Appellants' record, pages 20 to 21, paragraph 5 11 RPD reasons, paragraph 15 12 Audio recording 0:50 to 0:52 13 RPD record, page 30, last paragraph 14 RPD record, page 279 15 Appellants' record, page 21, paragraph 6 16 Ahortor v Canada (Minister of Employment & Immigration, 65 FTR 137, at para 46, 41 ACWS (3d) 863; Molnar v. Canada (Citizenship and Immigration), 2016 FC 635, at paragraph 21 17 RPD record, page 209 18 Audio recording 0:56 to 0:57 19 RPD record, page 30, last paragraph 20 Audio recording 0:52 to 0:53 21 Audio recording 0:55 to 0:56 and 1:04 22 RPD record, page 30, last paragraph to page 31, top paragraph 23 RPD reasons, paragraph 16 24 Appellants' record, page 21, paragraph 7 25 RPD record, pages 71, 171 and 193 26 Konare v. Canada (Citizenship and Immigration) 2016 FC 985 at paragraph 16 27 RPD record, pages 291 to 292 28 RPD record, page 274 29 RPD record, pages 276 to 277 30 Who is also a professional nurse, Ms. XXXX added in testimony. 31 RPD record, page 30, last paragraph to page 31, first two paragraphs 32 Audio recording 1:04 to 1:08 and 1:11 to 1:12 33 Audio recording 1:18 to 1:19 34 Audio recording 1:06 35 RPD reasons, paragraph 17 36 Appellants' record, page 21, paragraph 7 37 "When she was found she ... had no recollection of any of the events." 38 RPD record, page 30, last paragraph 39 Audio recording 1:16 to 1:17 40 Audio recording 1:15 to 1:18 41 Audio recording 1:18 to 1:19 42 Audio recording 1:19 to 1:20 43 RPD reasons, paragraph 18 44 Appellant's record, page 21, paragraph 8 45 RPD record, page 31, first full paragraph 46 Audio recording 1 :24 47 Audio recording 1:23 48 Audio recording 1:23 49 Audio recording 1:23 to 1:24 50 Audio recording 1:24 51 RPD record, page 274 52 Audio recording 1:24 to 1:25 53 Audio recording 1:23 54 Audio recording 1:23 55 RPD record, page 89, question 8. While there is no indication in the form of absence, the alleged period off work would have been two weeks and the form asks only for months of work. 56 I share the RPD's surprise that Ms. XXXXX would have been able to return to work, commuting long distance, only a week after allegedly being kidnapped, beaten into unconsciousness and suffered a forced FGM that left her bleeding. I do not, however, have medical evidence or specialized knowledge to find this implausible. 57 RPD record, pages 205 to 206 58 Audio recording 1:26 to 1:28 59 RPD reasons, paragraph 19 60 RPD record, page 90 61 RPD record, pages 204, 205 and 207 62 RPD record, page 209 63 The converse, that the kidnapping happened as alleged on XXXXX, 2015, cannot be credible, as the Appellants definitively placed it on the same day the U.S. visa was approved. In addition to the BOC statement and other testimony so stating, Mr. XXXXeven testified that his last contact with Ms. XXXXX, right before she was abducted, was her calling him from the consulate with the good news that the visa had been approved. 64 i.e. excluding the day of her abduction 65 Audio recording 1:12 66 RPD record, pages 71, 171 and 193 67 Konare v. Canada (Citizenship and Immigration) 2016 FC 985 at paragraph 16 68 RPD record, page 286 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB8-26041 MB8-26042 / MB8-26043 / MB8-26044 MB8-26045 RAD.25.02 (April 04, 2019) 16 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