MB9-21919

RAD File / Dossier de la SAR : MB9-21919 MB9-21920 / MB9-21921 / MB9-21922 MB9-21923 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision March 6, 2020 Date de la décision Panel L. Krajcovic Tribunal Counsel for the persons who are the subject of the appeal David Berger 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(Principal Appellant)XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXand XXXX XXXX XXXX (Minor Appellants) are citizens of Nigeria. They appeal a decision of the Refugee Protection Division (RPD) rejecting their claim for refugee protection. The Appellants request that the Refugee Appeal Division (RAD) allow the appeal and substitute a positive determination or, in the alternative, refer the matter back to the RPD for redetermination. DETERMINATION [2] The RAD allows the appeal and refers the matter back to the RPD for redetermination by a differently constituted panel, pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (the IRPA). BACKGROUND [3] According to their Basis of Claim (BOC) forms, the Appellants fear the Principal Appellant's husband (the Minor Appellants' father) and men in their village because they want the elder daughters to undergo female genital mutilation (FGM). The Principal Appellant indicates that the elder daughters were to undergo FGM at an annual festival in XXXX 2018. The Appellants fled Nigeria to the United States on XXXX XXXX XXXX 2018 and travelled to Canada on XXXX XXXX XXXX 2018. [4] The RPD rejected the claims on the basis of credibility. The Appellants submit that the RPD erred in its credibility assessment, was overzealous in its search for inconsistencies, violated the Chairperson's Guidelines on Women facing gender-based persecution and the principles of natural justice. [5] The Appellants have not submitted new evidence and do not request an oral hearing. CONSIDERATION OF UPDATED NDP FOR NIGERIA [6] The RAD gave notice to the Appellants that the most updated version of the National Documentation Package (NDP) for Nigeria dated November 29, 20191 may be considered in this appeal. The Appellants were invited to make submissions regarding new NDP items and their attention was directed to items 5.9 and 13.1. The notice was sent to counsel on January 6, 2020. Submissions were received January 23, 2020.2 After a detailed review of the Internal Flight Alternative (IFA) submissions, I find the issue of IFA not determinative of this appeal. ROLE OF THE RAD [7] The RAD applies a standard of correctness for questions of fact, mixed fact and law, and law. I may defer to the RPD in assessing findings involving the credibility of oral testimony if I find that it had a meaningful advantage in the circumstances.3 In this case, I find that the RPD did not have a meaningful advantage. ANALYSIS The RPD misinterpreted the evidence and made peripheral credibility findings [8] The RPD Member found that the Principal Appellant's evidence was inconsistent regarding going to Kano state to fight Boko Haram when she worked for XXXX XXXX. The RPD found that this information was included in her Schedule A form but was not referred to in her testimony or narrative. The Appellants submit that the RPD misinterpreted the Principal Appellant's evidence. [9] I accept the Appellants' argument and find that the RPD erred. The Principal Appellant's BOC narrative indicates that she attended compulsory XXXX XXXX in Kano for six months in 2017.4 Section 11 of the Principal Appellant's Schedule A form, entitled Military and Paramilitary Service indicates the "reason for end of service" was that she was "posted to the North-East to fight Boko Haram."5 Contrary to the RPD finding, the Principal Appellant's Schedule A form does not state that she spent six months fighting Boko Haram, but rather that this posting was the reason she ended her service. As a result, this was not an inconsistency in the Principal Appellant's evidence. In addition, I find this to be peripheral to the claim for refugee protection. [10] The RPD Member found that the Principal Appellant was inconsistent regarding the date that she separated from her husband. The Appellants submit that the RPD Member confused the Principal Appellant, which resulted in her providing an incorrect date. They point out that the Principal Appellant had provided the proper date earlier in her testimony. My review of the record confirms that the Principal Appellant provided the proper date earlier in her testimony. Further, I find the Appellant's date of separation from her husband is peripheral to the claim for refugee protection. [11] After conducting my own analysis of the entire record, and in light of my findings above, I find the two remaining credibility findings cannot maintain the determination that the Appellants are not Convention refugees or persons in need of protection. [12] However, I am not in a position to substitute a positive determination. After my review of the record, credibility issues remain outstanding on evidence presented to the RPD, some of which were not put to the Appellants at the hearing, and I am unable to do so in this proceeding. Further, as there is no new evidence, I cannot hold an oral hearing. [13] The Appellants have made a number of other submissions; however, I find it unnecessary to comment on these in light of my findings above. [14] As I am unable to confirm the RPD decision or set it aside and substitute my own decision without hearing evidence that was presented to the RPD, I refer the matter to the RPD for redetermination by a differently constituted panel pursuant to paragraph 111(2)(b) of the IRPA. DISPOSITION [15] The RAD allows the appeal and refers the matter to the RPD for redetermination by a differently constituted panel pursuant to paragraph 111(1)(c) of the IRPA. (signed) "L. Krajcovic" L. Krajcovic March 6, 2020 Date 1 Exhibit RAD-1, Member's Directions, January 6, 2020. 2 Exhibit P-3, Response to Member's Directions, January 23, 2020. 3 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157, paras. 70 and 103. 4 Exhibit RPD-1, RPD Record, Exhibit 2.1, at p. 35. 5 Exhibit RPD-1, RPD Record, Exhibit 1, at p. 226. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-21919 MB9-21920 / MB9-21921 / MB9-21922 MB9-21923 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