TB7-09813

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 File No. / N° de dossier de la SAR : TB7-09813 TB7-09814 TB7-09815 TB7-09816 TB7-09817 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXXXXXX XXXX XXXX XXXXXXXXXXXX XXXX XXXX (A.K.A. XXXX XXXX XXXX) XXXX XXXX XXXX XXXXXXXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision January 8, 2017 Date de la décision Panel Christine Houde Tribunal Counsel for the person(s) who is(are)the subject of the appeal Johnson Babalola Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX and her children, all citizens of Nigeria, and appeal a decision of the Refugee Protection Division (RPD) made on May 3, 2017 denying their refugee claims on the basis of finding a viable internal flight alternative (IFA) within that country. They have submitted an affidavit, relating to being sought by police for forced submission to cleansing rituals, as new evidence pursuant to subsection 110(4) of the Immigration and Refugee Protection Act (IRPA)1 in support of the appeal and have requested an oral hearing pursuant to subsection 110(6) of the IRPA. The Appellants ask the Refugee Appeal Division (RAD) to set aside the decision of the RPD and find them to be Convention Refugees or persons in need of protection, or, in the alternative, refer their claims back to the RPD for redetermination. The principal Appellant was appointed the designated representative (DR) for the minor Appellants. DETERMINATION OF THE APPEAL [2] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD dismisses the appeal and confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection.2 An assessment of the issues raised by the Appellants and review of the evidence did not reveal error in the RPD's credibility or IFA findings. BACKGROUND [3] The Appellants' identities as a nationals of Nigeria were established by their passports, copies of which are on record. They are of Ijaw ethnicity and lived in Lagos prior to coming to Canada. The principal Appellant is alleging that she is accused of witchcraft, outcast since the early 1990's by her family, and later by her husband's family. Mrs. XXXX claims her husband's family members are looking to kill her for failing to submit to female genital mutilation (FGM) cleansing rites, and hold her responsible for the separate deaths of her husband's parents. Her daughters, XXXX, XXXX, and XXXX XXXX XXXX allege they fear FGM by the same people, and XXXX has also been accused of witchcraft by her mother's family. Their brother, XXXX, did not advance an independent ground for his claim before the RPD. It is now claimed that he is at risk from the same agents of persecution and that he cannot be cared for by his father. [4] Mrs. XXXX left Nigeria with her children in 2016 after her mother-in-law's death. After losing that family support, her husband's sister XXXX XXXX XXXX, whom she had had problems with since marrying into the family in 2001, was making her life a "living hell."3 She and her husband lived in Lagos since marriage and he has returned there after accompanying the Appellants to Canada in 2016.4 [5] The RPD's assessment centred on the credibility of the principal Appellant's testimony and viability of the Appellants' relocation to Port Harcourt, finding this to be safe and reasonable. ROLE OF THE RAD [6] The RAD's role is to carry out its own analysis of the record to determine whether, as submitted by the Appellants, the RPD erred. The RAD applies the standard of correctness to questions of fact, mixed fact and law, and law, in accordance with the Federal Court of Appeal's decision in Huruglica.5 In assessing findings of credibility of oral testimony, the RAD will apply the standard of reasonableness, modified for the RAD context, in situations where the RPD enjoys a meaningful advantage.6 The extent of the deference to be shown will be assessed depending upon the particular circumstances of the matter and in conjunction with the RAD's own analysis of the record as a whole. Unless otherwise stated, the RAD uses the correctness standard on all findings and will make the overall refugee determination on a standard of correctness. ISSUES ON APPEAL [7] The RPD decided this matter solely on the issue of IFA and I find that this is also determinative of the appeal. The Appellants allege that the RPD erred in its assessment that they have a viable IFA in Port Harcourt and also raise arguments related to other issues which are neither determinative nor related to the RPD's decision. ADMISSIBILTY OF EVIDENCE SUBMITTED ON APPEAL [8] In support of the appeal, Mrs. XXXX proposes an affidavit7 authored by her husband, dated XXXX XXXX 2017, as new evidence. It is meant to corroborate the Appellants' risk in Nigeria and that they are currently being sought out by Mr. XXXX sister, recently assisted by local authorities. [9] XXXX XXXX XXXX writes that, on XXXX XXXX 2017 he was approached and threatened at home by his sister XXXX XXXX and two village chief priests, who were looking for the Appellants. He states that they intended to remove his wife and daughters by force, to kill Mrs. XXXX and have the children return to their family, against his wishes.8 He recounts how, despite asking them never to return, on XXXX XXXX, his sister, the village priests and two police officers, came back to interrogate him and accused him of preventing the performance of traditional cleansing rites and of sending his family out of the country without Ms XXXX, the head of the family's, consent. Mr. XXXX claims he was harassed and beaten by police on this occasion.9 [10] Mr. XXXX also addresses the fear basing this claim, that his wife and daughters lives are at risk from Ms XXXX, extending it to his son, claiming: "his life would be in danger if he returns as I would not be able to care for him and he would not be safe if he attends school because my sister would go and kidnap him as a way to deal with me and my family."10 [11] Subsection 110(4) of the IRPA provides that Appellants "...may present only evidence that arose after the rejection of their claim[s] or that was not reasonably available, or that the person could not reasonably have been expected11 in the circumstances to have presented, at the time of the rejection."12 It is for the Appellants to make full and detailed submissions in their memorandum about how any proposed new evidence meets the requirements of subsection 110(4) and how that evidence relates to the Appellants.13 If one of these conditions is met, the RAD will also consider if the evidence is credible, relevant, and new as per the factors endorsed in Singh.14 Materiality is a consideration for subsection 110(6), and the request for an oral hearing.15 [12] The affidavit submitted as new evidence is dated post rejection of the claim. It adds that Ms XXXX engaged police to locate the female Appellants and the police assaulted Mr. XXXX.16 The explanation statement by Mrs. XXXX seeks to provide additions to submissions and testimony in regard to XXXX risk and the safety and reasonableness of the IFA, which were or could have been made prior to the RPD's decision, and these are not accepted into evidence.17 [13] I have canvassed this new affidavit evidence and find that it is relevant to the fear alleged, the Appellants being sought out for harm by Mr. XXXX family. On this basis, I find that it is new with respect to the s. 110(4) criteria and satisfies the Singh factors. Request for an Oral Hearing [14] The RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in section 110(3) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal, is central to the decision with respect to the refugee protection claim, and, if accepted, would justify allowing or rejecting the refugee protection claim.18 [15] In this case, I find the document above admissible, however, it is not central to the decision with respect to the refugee protection claim, and, if accepted, would not justify allowing or rejecting the refugee protection claim. The RPD accepted the allegations of threats from the Appellants' family members, with notable credibility concerns, but found that they would be safe in Port Harcourt. Therefore, I cannot hold a hearing based on evidence relating to the alleged threat in Lagos and deny the request. ANALYSIS OF THE MERITS OF THE APPEAL [16] The submissions in appeal allege that the RPD's finding of an IFA in Port Harcourt is wrong and that the RPD panel also incorrectly found that the male Appellant did not face a serious possibility of risk in Nigeria. I agree, having considered the new evidence, that the IFA conclusion in this case is correct and determinative of the refugee claims. [17] The Chairperson's Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution19 as well as the Guidelines for Child Refugee Claimants20 were taken into consideration in reviewing the process of the hearing and the facts in this case. XXXX XXXX XXXX risk [18] The RPD found that XXXX did not face persecution on return to Nigeria as his claim was based on the harm to his mother and sisters and his representative testified she did not fear anyone would harm him when directly asked. She stated: "nobody will harm my son."21 The panel further noted that he has a good relationship with his father and, until this recent move to Canada, they had always lived together as a family, in Lagos.22 [19] The Appellants have submitted that the panel erred in not being guided by the "best interest of the child" and taking into the account the impact of separation of XXXX from his mother and sisters. Firstly, the best interest of the child is not an independent factor is assessing whether a minor faces a serious possibility of persecution or risk to life.23 Secondly, this argument is based on the unfounded assumption that the female Appellants have been found to be refugees and on the related fact that XXXX would be living apart from both of his parents.24 [20] The original hearing testimony from the principal Appellant about the absence of risk was clear and the new submissions and evidence indicating that XXXX could be abducted by his aunt and that his father is unable to care for him alone is not relevant in light of the IFA analysis to follow, or supported by more than Mr. XXXX assertion without explanation. In the alternative, if XXXX were assumed to be sought after for harm by his father's family, he has a viable IFA with his parents and sisters in Port Harcourt, as shown below. Internal Flight Alternative [21] The focus in this appeal is whether the Appellants have an accessible and viable IFA in Port Harcourt, taking into account their personal circumstances, and counsel's submissions referencing Abuja25 are disregarded, as this was not a location mentioned as a possible IFA in the RPD's decision. [22] In order to determine whether a viable IFA exists, I have considered the two-pronged test outlined in the Federal Court of Appeal decisions of Rasaratnam26 and Thirunavukkarasu.27 The criteria for establishing the existence of an IFA were reviewed and the submissions about the ability of the principal Appellant's sister-in-law to locate the Appellants and persecute them there considered.The Appellants bear the burden of proof to show that they face a serious possibility or reasonable chance of persecution in the entire country and specifically in the potential IFA area. The IFA must also be reasonable in the circumstance for the Appellants. For the following reasons, they have not met that burden and Port Harcourt would provide an appropriate IFA for these Appellants. Port Harcourt is a safe internal flight alternative for the Appellants [23] The RPD decided that there was no serious risk to the female Appellants in Port Harcourt from Mr. XXXX five sisters or Mrs. XXXX uncles' XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX. The testifying Appellant listed them, after thorough prompting, as the only people she feared and that they lived in Lagos, Abeokuta, and Ukwuani, all in Lagos and Delta states in the south west of Nigeria.28 When asked who she was afraid of, Mrs. XXXX initially stated of XXXX XXXX: "she is the only problem I have."29 The panel found it speculative and unsupported by the evidence that the main agent of persecution, Ms XXXX, would discover Mrs. XXXX working and being in public places because she does business in various parts of Nigeria.30 [24] The Appellants submit that the RPD erred in not finding that Mrs. XXXX, working at a hospital, would be easily detected by Ms XXXX or a common acquaintance. Ms XXXX sells cassava flour in different states. This argument presupposes that being in the same state equates with being detected by the agent of harm and I cannot agree, especially as the Appellant must establish that likelihood on a balance of probabilities. Though the Appellant is not restricted to working in a hospital in Port Harcourt, she argues that she would be discovered there by unexplained means and unidentified persons.31 [25] No evidence was presented as to the influence of the agents of persecution inside or outside Port Harcourt. Only Ms XXXX and an uncle XXXX were referred to in the Appellants' narrative.32 There is no evidence suggesting that the XXXX family are linked to a group with means and capability of searching for and locating the Appellants, or that they would know of the relocation, and there is no connection whatsoever between her line of work and that of her feared sister in law. The testimony does not refer to any ability of the principal Appellant's family to seek them out.33 Mr. XXXX has not felt threatened to the extent that he has felt the need to relocate from Lagos, where he alleges threats from his family have occurred, or reported any incidents of police corruption to higher authorities. All that remains is the credible assertion that because Ms XXXX travels for her XXXX selling business, she may find herself in the same state at the same time as the Appellants, and this, without more, cannot be the basis of a finding that the agents of harm will locate the Appellants and that consequently they face a serious possibility of persecution for the alleged reasons. [26] The RAD must be satisfied, on a balance of probabilities, that there is no serious possibility of the Appellants being persecuted in the part of the country to which it finds an IFA exists.34The RAD finds that, the minor female Appellants will not face a serious possibility of being subjected to FGM in Port Harcourt, and Mrs. XXXX and XXXX will not face a serious possibility of being forced to undergo cleansing rituals, as suspected witches, upon relocation there. Parents' objection to ritual practices [27] Mrs. XXXX testified that her husband's family is pressuring him to circumcise her and her daughters, and that "he does not want us to be circumcised."35 It was not found credible by the RPD that Mrs. XXXX and her daughters would be pursued upon relocation to Port Harcourt for performance of FGM, as the objective evidence shows that where, as in this case, both parents object to the practice it can be refused with only relationship consequences. The practice is not legal in the Rivers state and surrounding areas. In general, effective state protection is available, making it further unlikely police would assist the alleged agents of persecution in forced FGM of the Appellants.36 [28] Counsel for the Appellants points to evidence and testimony which does not support his contention that FGM is a risk where both parents refuse it.37 The NDP documents referred to in appeal discuss a situation where only the mother opposes FGM and prevalence statistics. The testimony cited confirms both parents do not agree to FGM for their daughters and vaguely addresses the beliefs of Mrs. XXXX family in practicing FGM as a tradition. [29] When questioned by her counsel at the RPD hearing about the NDP documentation, Mrs. XXXX clarified that the consequence of both parents not agreeing to FGM for their daughters would be that a curse will be laid on them and future generations by "the deity." She believes this has happened, as evidenced by the downturn in her husband's business activity.38 I find this and the new evidence from Mr. XXXX indicating an attempt at removal of the Appellants for forced FGM to be at odds with the alleged fears of being murdered for not undergoing FGM as a cleansing ritual. [30] The RPD found, and I agree, that it is open to the family to simply refuse FGM for Mrs. XXXX and their daughters without the severe consequences alleged. The principal Appellant testified that both she and her husband are against and have refused the practice of FGM, and that they have been cursed as a result. She has stated variably that because of their families' traditions, their daughters will be forced to undergo FGM and that they will all be killed. XXXX testified she understands that the reason she fled Nigeria is because she will be killed for not undergoing FGM.39 I agree with the RPD in finding this testimony to be speculative and not supported by the objective evidence. [31] A Response to an Information Request (RIR) on whether parents can refuse FGM for their daughters, notes that several sources indicated that they can, especially where both agree, and that "..."nobody will walk into [somebody else's] home" to perform FGM on their daughters and that "parents are free to refuse it."40 As the parents are the ones responsible for this practice. While this document does indicate that some less educated couples will obey to the authority of the extended family, this is not relevant in the present circumstances, as the adult Appellants are both educated and independent people and refused the practice over time, after also marrying in the context of strong family opposition.41 [32] A second NDP document, referring to the consequences for refusing to undergo this procedure, also indicates that if husbands support their wives there is no forcing of a woman to undergo FGM.42 A third source, a women's rights Nongovernmental Organization (NGO), indicates that while cleansing rituals do occur, especially in rural areas of southern Nigeria, cleansing rites are for women to pass through before marriage and it is "extremely rare" for circumcision to be part of cleansing rituals. Women, especially older widowed women, may, in some ethnic groups, particularly in rural areas, be accused of being witches where unexplained deaths occur. Expulsion from the village and the community, exclusion or forced seclusion, and in extreme cases death might be carried out.43 [33] Recognizing that, depending on the area and cultural practices, cleansing rites can include circumcision, I note that the majority of sources in the documentary evidence indicate that consequences for refusal of traditional FGM would be limited to ostracism and peer pressure.44 I have not found mention in the documentary evidence available that children are taken by force to undergo FGM in cases where both parents refuse. Further, Mrs. XXXX describes that she and XXXX are wanted to undergo FGM as a cleansing rite for reason of witchcraft accusations, however, no serious harm has come to Mrs. XXXX since her accusation in XXXX 1993 or following the deaths of her in-laws 2011 and 2016, though she has been accessible to both her uncles and her husband's family in Lagos. She testified that Ms XXXX had come to fight her on several occasions over the years, however, she did not feel a risk to her life for this reason and doesn't mention such a fear for her daughter.45 [34] Country Information and Guidance from the UK Home Office indicates that in general, effective state protection is available against forced FGM and that laws are more easily enforced in urban areas. In the Rivers state, it is reported in a Demographic and Health Survey that 13% of women have undergone some form of FGM, after the passing of the Female Circumcision Law of 2001. The survey also indicates that among Ijaw women in Nigeria, aged 15-49, 11% had undergone the practice.46 On a balance of probabilities, I find that as both parents are against FGM and given that it is more common than not for Ijaw women and girls and those living in Port Harcourt to not be involved in the procedure, there is less than a mere possibility that it would occur upon the Appellants return. Further, there is no credible evidence that anyone in the family would be murdered as a result of the refusal. I do not find any independent evidence to support this allegation. Port Harcourt is a reasonable internal flight alternative for the Appellants [35] Conditions in that part of the country considered to be an IFA must be such that it would not be unreasonable, in all circumstances, including those particular to the Appellants, for them to seek refuge there.47 The RPD found that an IFA in Port Harcourt was reasonable based on Mrs. XXXX personal and familial profile. The reasons provided for it not being reasonable were not accepted. They included the financial cost, being non-indigene, and psychotherapist evidence that Mrs. XXXX would have difficulty in returning to Nigeria.48 [36] I am of the view that there is no evidence that the principal Appellant and her children would be living apart from her husband; to the contrary, Mr. XXXX has been in continuous contact with his children and states recently that he is afraid to lose his family as he loves them very dearly49, and so this reunion is assumed, as it was by the RPD, in the analysis to follow. [37] Mrs. XXXX is a XXXX XXXX and XXXX XXXX XXXX and has worked as such for over ten years in Nigeria. She is married to a business owner, educated with a master's degree, in Lagos. 50 While she insisted her husband could not do business there for lack of a sea port, which he needs access to in conducting his particular form of trading, I find that Port Harcourt is among the six main ports in the country, while Lagos is not named as a main port.51 As a result, the XXXX appear to have good prospects of employment in their current fields of work. Needing to "start from scratch"52 is not sufficient to make this unreasonable. Mrs. XXXX has relocated to Jos, Kaduna and Abuja before marrying her husband and living in Lagos. She has much experience being a non-indigene in Nigeria and has had employment success, including promotion. 53 On a balance of probabities, I find that Mrs. XXXX background and place of origin will not render relocation unreasonable. [38] Based on the Appellant's testimony that her husband's business has taken a downturn, she was asked by her counsel if she and Mr. XXXX were to move to Port Harcourt, if they would be able to afford to rent a house. She simply responded "no." Mrs. XXXX clearly testified that among the reasons she cannot live in Port Harcourt is that she doesn't have anybody there to accommodate her and her children, and it is expensive.54 Taking into account the recent international travel within Africa, Europe and Canada, as well as the decision to send some of her children to private school, and the employment prospects of Mrs. XXXX and her husband discussed above, I do not find that the financial cost of relocation has been shown to be unreasonable in the circumstances. [39] There is "a very high threshold for the unreasonable test. It requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in travelling or temporarily relocating to a safe area. In addition, it requires actual and concrete evidence of such conditions."55 While I am mindful of the fact that relocation is inherently difficult, the Appellants have not provided such evidence. [40] The Nigerian constitution provides for freedom of movement within Nigeria. The objective documentary evidence also states that internal relocation to escape from localized threats from family members is not unduly harsh.56 The Appellants provided no persuasive evidence that they would not be familiar with cultural issues, including language and norms in Port Harcourt. It is reasonable to believe that Nigeria's official language, English, is widely spoken such that the Appellants would be able to communicate. Mrs. XXXX has testified she speaks Ukwuani, Hausa, and English and that she has been living in Lagos since 2001, with an understanding of Yoruba and Ebo. She testified that she was able to live there and work in a Lagos hospital without speaking the most common dialect.57 Further, the Appellants are Christian and in the southeastern states, where Port Harcourt is located, Catholics, Anglicans, and Methodists constitute the majority.58 It appears reasonable for the Appellants to adapt to life there. [41] It is notable that the Appellants have received and continue to receive strong support from Mr. XXXX, who has resided with them and in particular defended his wife and daughters by refusing the FGM practice and by supporting them through relocation. There is no reason to believe that he will not continue to provide them with ongoing support. Any hardship encountered by the female Appellants arising from their gender will be mitigated by the fact that they will most likely be accompanied by him in Port Harcourt. [42] Mrs. XXXX also testified that a reason she cannot live in Port Harcourt is the militancy there.59 The unreasonableness alleged based on militancy in the capital city was found by the RPD to be speculative.60 Country condition evidence in regard to kidnappings increasing across the country in 2011 by gangs for economic gain, particularly in Lagos, where the Appellants have lived for some time, is the only argument put forward on appeal in this respect.61 [43] The Appellants' point to a 2014 Responses to Information Request stating that kidnapping for ransom has become "fluid, diffuse, unpredictable, and widespread in southern Nigeria." Reports describe the crime as "opportunistic" and show that kidnapping is done by criminal organizations for ransom and economic gain. The main targets have been political figures, the wealthy, and foreigners, though targeting of average or "middle class" Nigerians increased in 2013, especially in Lagos. People targeted for ransom kidnapping include: high-profile Nigerians, and their family members; foreign nationals; wealthy families or "perceived high-value targets"; politicians and their family members; government officials; relatives of celebrities; foreign businessmen or staff of "influential" companies; doctors, teachers, foreign residents; and religious leaders. Sources report that in the Niger Delta region, oil and gas workers are the primary targets of such kidnappings, particularly expatriate oil workers.62 Given that the Appellants would be returning to Port Harcourt, not Lagos, and they do not fit the profile of those most at risk of kidnapping, the RAD finds the Appellants have not established that the IFA is not reasonable in their particular circumstances. Conclusion [44] Based on the totality of the evidence, I find that the record contained sufficient evidence to support the RPD's finding that an IFA in Port Harcourt is safe for these Appellants, as there is insufficient evidence to show effective influence of feared family members to locate them there. I find, on a balance of probabilities, that there is not a serious possibility that they would be discovered in Port Harcourt by persons wanting to subject them to harmful traditional practices or that it is unreasonable to relocate in their circumstances for fear of being targeted for kidnapping. As such, they have a safe and reasonable internal flight alternative in Nigeria. Disposition [45] Accordingly, pursuant to paragraph 111(1)(a) of the IRPA, the RAD dismisses the appeal and confirms the decision of the RPD that, as IFA is a determinative issue, the Appellants are neither Convention refugees nor persons in need of protection. (signed) "Christine Houde" Christine Houde January 8, 2017 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on February 6, 2014. 2 Ibid. 3 Exhibit P-2, Appellant's Record, RPD hearing transcript, at p. 99. 4 Ibid., at p. 109. 5 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para 103. 6 X (Re), 2017 CanLII 33034 (CA IRB). 7 Exhibit P-2, Appellant's Record, at pp. 75-76. 8 Exhibit P-2, Appellant's Record, at p. 75, paras. 4-6. 9 Exhibit P-2, Appellant's Record, at pp. 75-76, paras. 6-8. 10 Exhibit P-2, Appellant's Record, at p. 76, para. 9. 11 Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, para 51. 12 Section 110(4), Immigration and Refugee Protection Act, (S.C. 2001. C. 27). 13 Section 3(3)(g)(iii), Refugee Appeal Division Rules, SOR/2012-257. 14 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, cited in Singh, 2016 FCA 96, at para. 64. 15 Singh, 2016 FCA 96, at para. 64. 16 Exhibit P-2, Appellant's Record, at pp. 75-76, at paras. 4-9. 17 Exhibit P-2, Appellant's Record, at pp. 15-17, at paras. 5-13. 18 Section 110(6), Immigration and Refugee Protection Act, S.C. 2001, c.27. 19 Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act. 20 Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, September 10, 1996 as continued in effect by the Chairperson on June 28, 2002 in section 159(1)(h) of the Immigration and Refugee Protection Act. 21 Exhibit P-2, Appellant's Record, RPD hearing transcript, at p. 104. 22 Exhibit RPD-1, RPD's Record, at p. 7, at para. 7; Exhibit P-2, Appellant's Record, RPD hearing transcript, at p. 117. 23 Although there are several areas where IRPA mandates a consideration of a child's best interests in certain immigration decisions, there are no overriding best interests' considerations in Canadian refugee law. The Guidelines for Child Refugee Claimants (Chairperson's Guidelines Refugee Protection Division. Guideline 3: Child Refugee Claimants effective September 30, 1996) direct the IRB to take the best interest of the child into consideration in a procedural, not a substantive, manner. 24 Exhibit RPD-2, Appellant's Record, at pp. 136-138, at paras. 16-21, pp. 156-157, at paras. 85-88. 25 Exhibit RPD-2, Appellant's Record, at pp. 144-146, at paras. 44-47. 26 Rasaratnam, Sivaganthan v. M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991. Reported: Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), at 710 [Rasaratnam]. 27 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.) [Thirunavukkarasu]. 28 Exhibit P-2, Appellant's Record, RPD hearing transcript, at pp. 95-97. 29 Exhibit P-2, Appellant's Record, RPD hearing transcript, at p. 95. 30 Exhibit RPD-1, RPD's Record, at p. 7, at para. 17; National Documentation Package (NDP) for Nigeria (30 November, 2017), item 1.2. 31 Exhibit P-2, Appellant's Record, at p. 139, at para. 25. 32 Exhibit RPD-1, RPD's Record, at pp. 18-21. 33 Exhibit P-2, Appellant's Record, RPD hearing transcript, at pp. 101-119. 34 Rasaratnam, supra, footnote 27. 35 Exhibit P-2, Appellant's Record, RPD's Record, RPD hearing transcript, at p. 104. 36 Exhibit RPD-1, RPD's Record, at pp. 9-11, at paras. 19-22; Exhibit RPD-1, RPD's Record, Exhibit 7, NDP for Nigeria (30 November 2017), item 5.30, Country policy and information note: female genital mutilation (FGM), Nigeria (28 February 2017), at paras. 2.3.8, 2.4.6 and 3.1.2. 37 Exhibit P-2, Appellant's Record, RPD hearing transcript, at pp. 141-143, at paras. 35-39. 38 Exhibit P-2, Appellant's Record, RPD hearing transcript, at p. 114. 39 Exhibit P-2, Appellant's Record, RPD hearing transcript, at p. 81. 40 Exhibit RPD-1, RPD's Record, Exhibit 7, NDP for Nigeria (30 November 2017), item 5.12, NGA104220.E (21 November 2012). 41 Exhibit P-2, Appellant's Record, at p. 27. 42 Exhibit RPD-1, RPD's Record, Exhibit 7, NDP for Nigeria (30 November 2017), item 5.17, RIR, NGA105120.E (19 March 2015). 43 Exhibit RPD-1, RPD's Record, Exhibit 7, NDP for Nigeria (30 November 2017), item 5.13, RIR, NGA104392.E (29 April 2013). 44 Exhibit RPD-1, RPD's Record, Exhibit 7, NDP for Nigeria (30 November 2017), item 5.28, RIR, NGA105628.E (13 September 2016). 45 Exhibit P-2, Appellant's Record, RPD hearing transcript, at pp. 112-113. 46 Exhibit RPD-1, RPD's Record, Exhibit 7, NDP for Nigeria (30 November 2017), item 5.30 (28 February 2017), at paras. 2.4.2, 2.4.6, 3.1.2, 7.4.2 and 7.6.2. 47 Thirunavukkarasu, supra, footnote 28. 48 Exhibit RPD-1, RPD's Record, at pp. 11-12, at paras. 24-28. 49 Exhibit P-2, Appellant's Record, at p. 26, at para. 11. 50 Exhibit P-2, Appellant's Record, RPD hearing transcript, at pp. 91-93. 51 Exhibit P-2, Appellant's Record, RPD hearing transcript, at p. 115; Exhibit RPD-1, RPD's Record, Exhibit 7 , NDP for Nigeria (30 November 2017), item 1.7 (August 2016), at para. 6.3.1. 52 Exhibit P-2, Appellant's Record, RPD hearing transcript, at p. 115. 53 Exhibit RPD-1, RPD's Record, at p. 11, at paras. 24-25. 54Exhibit P-2, Appellant's Record, RPD hearing transcript, at pp. 102-103, 116-117. 55 Ranganathan, supra, footnote 27. 56 Exhibit RPD-1, RPD's Record, Exhibit 7, NDP for Nigeria (30 November 2017), item 5.30 (28 February 2017), at paras. 2.5.2, 2.5.3 and 3.1.3; item 2.1 (3 March 2017); and item 5.9 (19 November 2012). 57 Exhibit RPD-1, RPD's Record, RPD hearing transcript, at p. 102. 58 Exhibit RPD-1, RPD's Record, Exhibit 7, NDP for Nigeria (30 November 2017), item 12.1 (15 August 2017). 59 Exhibit P-2, Appellant's Record, RPD hearing transcript, at pp. 102-103, 116-117. 60 Exhibit RPD-1, RPD's Record, at pp. 10-11, at paras. 21-22. 61 Exhibit RPD-2, Appellant's Record, at pp. 143-144, at paras. 40-42. 62 NDP for Nigeria (30 November 2017), item 7.3 (31 July 2014). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : TB7-09813 TB7-09814 TB7-09815 TB7-09816 TB7-09817