Kim v Canada
(MCI) 120111 2 FCR 448 at 467, 469 and 475, in which the CRC was referred to and the point was made that if the children's rights under the CRC were violated in a sustained or systematic manner demonstrative of a failure of state protection that child might qualify for refugee status. 20. Equally in that case the court made the point that to acknowledge that children have distinctive rights was not to graft additional rights on to the definition in the Refugee Convention of persecution but was instead to interpret the definition of persecution in accordance with the distinctive rights that children possessed as recognised in the CRC and it was a denial of the CRC rights that the court believed to be important in deciding whether there was an entitlement to refugee status. 21. It has been submitted essentially by Mr Melvin that we cannot go so far, and we should not go so far, as to recognise that discrimination in Nigeria could amount to persecution because there are a very large number, running into certainly at least, 1,000,000 of albinos in that country who would be entitled if that were right to protection. 22. But that we do not think is the whole answer. We have to consider the facts relating to the individual who appears before us. We have here as we have said, a child born in this country, and brought up in this country, who has not faced any of the discrimination and the basis of that discrimination which he could be at real risk of suffering were he to be returned to Nigeria. 23. Thus he would if returned have to recognise that he is treated as someone who has a real difficulty, inasmuch as to it is considered by many that he has been tainted by some form of witchcraft and that he simply is to be regarded as a second class citizen. That of course in itself might not be enough but it is the effect of that upon him that matters and we have no doubt that there is a real risk of certainly bullying, possibly worse, when he goes to school and that he will feel a pariah in society as a whole. As the previous judges have decided there is not likely to be any protection from the authorities that he can expect from such conduct against him and thus the effect on him is that much more serious than would have been the effect had he lived all 'his life and been brought up in the society in Nigeria. 24. That in our judgment puts him in a different position from the general position of albinos in Nigeria and in our judgment the likely effect on him even short of any real risk of being slaughtered or otherwise his body parts being taken, is sufficient to indicate that there is a real risk of persecution. 25. We must make it clear that we are approaching this on the basis that the position and the particular vulnerability of children must be the starting point. But this is a case which depends upon its facts and the circumstances of the child having been brought up in this country and not having faced the general approach to albinos that exists in Nigeria. Thus we do not regard this as really being appropriate to be a test case for albinos who are due to be returned to Nigeria or who face the turning down of any application made to stay in this country. Those will depend upon the circumstances of their individual positions, their age, no doubt and their background. That is why we say that this is not a case that can be regarded as one which is of general application save for the approach. But the approach is one which is as we understand is not in itself contentious. It is merely that Mr Melvin understandably submits that what he is likely to suffer by way of discrimination is not sufficient to amount to persecution. 26. We must make it clear that in our judgment this was a relatively close run case because it obviously is more usual to find persecution where there is something rather more than that which exists in this case. But bearing in mind all the circumstances and the matters to which we have referred we will allow this appeal and direct that the appellant and her son should be entitled to protection under the Refugee Convention. 27. This will persist only so long as there is a need for it and there can in future if the need arises be a reconsideration because the old approach which this country adopted that once refugee status was accepted there was permanent right of residence has in accordance with the precise terms of the Convention being changed.