VB3-01841

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 : VB3-01841/2/3/4/5 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX XXXX Personne(s) en cause the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Appeal considered / heard at Appel instruit à Date of decision March 18, 2016 Date de la décision Panel Philip MacAulay Tribunal Counsel for the person(s) who is(are) David Matas Conseil(s) du (de la/des) the subject of the appeal personne(s) en cause Bashir Khan Barrister and Solicitor Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) for XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the wife), XXXX XXXX XXXX (the husband), XXXX XXXX XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX, (collectively referred to as the minor appellants) citizens of Nigeria, appeal the decision of the Refugee Protection Division (the RPD) rejecting their claims for refugee protection. As is set out in the RPD Notice of Decision dated July 26, 2013, the appellants' claims were heard by the RPD on July 15, 2013 with an oral decision being rendered on that date. The RPD determined that the appellants were neither Convention1 refugees pursuant to section 96 of the Immigration and Refugee Protection Act (IRPA or the Act)2 nor persons in need of protection pursuant to section 97 of the Act. DETERMINATION [2] Pursuant to Rule 41 of the Refugee Appeal Division Rules (the RAD Rules)3 the Refugee Appeal Division (the RAD) severs the claims of the appellants such that the claim of the appellant XXXX XXXX XXXX will be heard separately from that of the other appellants whose claims will all be heard together. As well, pursuant to paragraph 111(1)(c) of IRPA, the RAD sets aside the determination of the RPD and refers the two separate matters to the RPD for redetermination by a different RPD Member(s). The appeals are accepted. BACKGROUND [3] This is the third time these claims have been heard on appeal by the RAD. Accordingly, reference as appropriate will be made to RAD Record 1, RAD Record 2 and, with regard to this appeal, RAD Record 3. More detail with respect to those RAD proceedings will be discussed below. [4] As noted earlier, the RPD heard this matter and rendered its negative decision on July 26, 2013.4 At that time, the appellants were self-represented with the wife serving as the principal appellant. As well, she was the Designated Representative for the minor appellants, XXXX XXXX XXXX XXXX XXXX. She still is. The Minister intervened "by documents only" and did not appear at the RPD hearing. [5] No transcript of the RPD proceeding has been included in the initial RAD Appellants' Record (AR) or thereafter. However, a compact disc (CD) of the RPD hearing is included in the RPD Record (RPDR)5 and is found at the back of that Exhibit.6 I have listened to the entirety of the CD and reviewed the RPDR. Basis of claim [6] As initially presented, the appellants alleged a fear of returning to Nigeria due to the rising level of violence in that country perpetrated by, in the south, criminal gangs such as the Bad Boys and, in the north, terrorists or militant groups such as Boko Haram. This led to the family moving from their home in Port Harcourt to Lagos. However, violence there was also increasing, affecting people close to the family such as friends, neighbours and extended family members. The family decided to come to Canada to make claims for refugee protection. It was alleged that adequate state protection was not available anywhere in Nigeria. The claims were commenced in May 2013. RPD decision [7] The RPD found that the appellants were credible. However, the RPD concluded that the appellants' fear was tied to their perceived wealth and criminality such that there was no nexus established with a Convention ground. Further, the RPD found that the appellants did not face a personalized risk or danger in Nigeria but, rather, risks or danger of a generalized nature faced by others in that country. Accordingly, the RPD rejected the appellants' claims for protection with respect to both section 96 and 97 of IRPA. Post RPD proceedings [8] Subsequent to the negative RPD determination, the appellants retained counsel (not involved in the current appeal) and appealed that determination to the RAD. In the result, on November 20, 2013 RAD Member Fortney confirmed the RPD determination and dismissed the appeal.7 [9] The appellants' then retained Mr. Matas as counsel and sought judicial review. On January 20, 2015, the Federal Court (the Court) allowed the application and the appeal was "remitted back (to the RAD) to be determined by a differently constituted Panel".8 In so doing, Justice Zinn found that the RAD had applied the incorrect standard of review of "reasonableness" in conducting its appeal of the RPD decision and that, even if the RAD had applied the standard of review as was later set out in decisions such as Huruglica,9 it could not be said that the result would have been the same. Huruglica had been decided approximately one year after Member Fortney had made his determination. The Justice concluded: "Although the applicants did not have the strongest case on the facts, I am not persuaded that it would be impossible for a differently constituted RAD to reach a different conclusion. Therefore, this application will be allowed."10 [10] The second RAD appeal was heard by RAD Member McRae. His determination of May 20, 2015 also confirmed the original RPD determination. Prior to that time, but subsequent to the first Court decision, the wife and husband's marriage broke down and the husband lived separate from the wife and the appellants' children. The husband retained Mr. Khan as his counsel while the others continued to be represented by Mr. Matas. Application was made by Mr. Matas to the RAD that the claims of his clients be severed from that of the husband. [11] In a Supplemental Appellant's Record11 filed by Mr. Matas, the wife relates12 how she happened upon a number of emails13 to and from the husband with others in Nigeria which led her to conclude that her husband had kept from her the fact that he was being threatened in that country by people who felt he had defrauded them through his business dealings. These threats extended to the whole family. When the wife confronted the husband about these matters he became abusive such that, ultimately, the wife and the minor appellants obtained a judicial protection order against the husband. The wife related how there had been a long history of domestic violence by the husband against the wife from the first year of their marriage, which abuse continued after they moved to Canada. She alleged he abused her over the years physically, sexually, financially, verbally, emotionally and psychologically. [12] Pursuant to section 110(4) of IRPA, Mr. Matas had sought to introduce before the RAD a number of documents, including the wife's statement referred to above and the subject threatening emails inasmuch as the wife was not fully aware of the existence of the emails and the threats set out in them prior to the initial determination of the RPD on July 15, 2013. [13] The wife fears that if she and the children return to Nigeria they will be at risk of harm from those who seek retribution and repayment from her husband. As well, she fears that if she and the children return and the husband returns as well, they would also face risk and danger from the husband's domestic violence in a situation where, unlike in Canada, police protection is inadequate. The wife alleges that the husband wants to orchestrate such a scenario. The wife also continued to maintain her claims based on her original Basis of Claim (BOC) narrative. [14] In addition, the appellant husband also sought to present new evidence in the RAD appeal.14 This evidence consisted of a two-page statement dated March 20, 2015 from the appellant's older brother as well as a one page police report dated March 3, 2015.15 Both documents relate to the appellant's father having been, first extorted, and then kidnapped by armed men. The husband alleges that these events happened in February 2015. The appellant alleged that his father was targeted after the appellant had shipped a motor vehicle from North America to ease his parents' transportation requirements. It is further alleged that the group that ended up extorting and then kidnapping his father were motivated by the belief that the husband was a man of means who could be forced to pay significant money in exchange for his father's release. Finally, the husband alleged that if he returns to Nigeria he would be directly targeted by the same people. The father's whereabouts remained unknown during the course of the second RAD appeal. The husband too continues to assert his original claim. [15] Although the husband consented to the severance application, on April 8, 2015 Member McRae denied the application to sever. On May 20, 2015, Member McRae dismissed the appeals of all of the claims of all the appellants and confirmed the original RPD determination. The appellants then once again sought judicial review. They did so under two separate Court docket numbers. In each case, Justice Boswell, on August 26, 2015 (IMM-2647-15) and August 27, 2015 (IMM-2835-15), quashed Member McRae's decision and returned the matters to the RAD for redetermination by a different Member. The current RAD appeal arises from that action. [16] The orders of Justice Boswell were made with the consent of the Minister. The Justice provided no further reason for his decision other than that it was "by consent". However, in both of the Motion Records filed in the Court actions leading to the Justice's decision, all parties agreed that the determinations of Member McRae should be quashed due to unspecified breaches of procedural fairness. Typical in such matters where the Court returns a matter to either the RPD or the RAD (as the case may be) for a breach of natural justice or procedural fairness, the reasons of the body whose determination has been quashed do not form part of the Record for the subsequent Member hearing the redetermination. Accordingly, I do not have the benefit of Member McRae's full rationale for making the determinations he has made nor the specifics of his decision relating to the allowance of new evidence pursuant to subparagraph 110(4) of the Act. [17] Inasmuch as Justice Boswell did not order otherwise, my interpretation of his decision is that all of Member McRae's decisions were quashed; not only his decision on the merits of all of the appellants' claims but also his decision to refuse to sever them. Accordingly, all of those matters remain issues in this appeal as does a determination on the application by the appellants to introduce new evidence as noted above. [18] Finally, the appellant husband presents additional new documents for acceptance at this RAD appeal that were not presented at the second RAD appeal.16 These consist of a September 20, 2015 police report which refers to the kidnapped father's body having been found in the forest, as well as a June 24, 2015 newspaper report relating to the same allegation. GROUNDS OF APPEAL [19] Neither counsel filed new ARs for this RAD appeal. They continue to rely on the ARs filed with respect to the second RAD appeal.17 The wife's grounds [20] The wife's position18 is that the proposed new email documentation which reveals evidence that, in addition to the original basis of claim concerning threats from criminal gangs and other local violence, she and the children also face threats emanating from former business associates of the husband giving rise to an additional basis of claim. Moreover, she alleges that, subsequent to her receiving a court protection order in Canada against her husband in March 2014, she was finally in a position where she could also advance a third claim relating to his historical and ongoing domestic abuse of her. Until that time, she alleges her husband compelled her to keep silent about such a claim. [21] While the wife's AR does include submissions about why the original RPD decision was made in error, my rulings in this decision that the new documentation be considered by the RAD and that the joined claims of the wife and husband now be separated, it is no longer necessary to review the RPD decision in any detail given that subsequent events (i.e., the new documentation and the dis-joinder) have led to my conclusion that the basis of the claims have been expanded and that two separate RPD redeterminations must be made. The husband's grounds [22] The husband's position19 is similar to that of the wife in that, he alleges that the new documentation he had presented in the second RAD appeal confirming the kidnapping of his father and the resultant extortion of the husband (which evidence did not exist at the time of the original RPD determination) gives rise to an additional more specified basis of claim which must now be considered. Additional new documentation he has presented to this RAD Panel carries that story further in that it allegedly confirms that, ultimately, the father was killed.20 [23] Prior to the second RAD appeal, the husband had presented yet another basis of claim that had not been advanced before the RPD. The second claim was based on an alleged risk he would face because of his political affiliation with the former governing regime in the state in which he lived in Nigeria. [24] In the original RPD proceedings the husband had merely adopted the BOC narrative of his wife which, at that time, consisted only of the fear, risk and danger associated with general political and criminal violence and mentioned nothing about the husband's specific political affiliation with a governing party and problems arising therefrom. [25] There is nothing apparent in the RPD Record, including the husband's testimony,21 that he advanced this latter specific political claim at all during the first RPD proceedings. Were this the only new claim, I would reject it on the basis that there is no good reason why he could not have presented this historically based claim from the outset. However, as I am returning the husband's claim for redetermination based on the events surrounding his father's kidnapping and ultimate murder, the new RPD hearing will be de novo in any event. I leave it to the RPD's consideration as to whether or not this additional claim should be given any credence at all in light of the husband's apparently inexplicable failure to advance it from the beginning. [26] Like the wife, the husband also provided some submissions as to why he considers the original RPD determination concerning the original generalized claim to be flawed. As was the case with the wife, I find it unnecessary to review that first determination in any detail given that, in the case of both the wife and the husband, their original claims have been over-ridden by subsequent events resulting in the new RPD hearings being ordered by the RAD. ORDER SOUGHT [27] The appellant wife represented by Mr. Matas, seeks an order severing her and the children's' claims from that of the appellant husband, represented by Mr. Khan. All appellants seek an order that the new evidence they earlier sought to present to RAD Member McRae pursuant to subsection 110(4) of the IRPA be considered by the current RAD and that the current RAD hold a hearing pursuant to subsection 110(6) of the Act. The appellant husband seeks a similar order with respect to the additional documentation he has presented to this RAD Panel. All of the appellants seek an order that the determination of the RPD be set aside and that it be determined that they are Convention refugees or persons in need of protection. Alternatively, all of the appellants seek an order that the matter of their claims be referred to the RPD for redetermination by a different RPD Member. THE ROLE OF THE RAD AND THE CRITERIA FOR INTERVENTION [28] Aside from submissions concerning the introduction of new evidence pursuant to subsection 110(4) of IRPA, neither the wife nor the husband provide any detailed submissions on the general role of the RAD or the criteria upon which it should intervene concerning an RPD determination. Given that the rationale by which these claims are being returned to the RPD for a new hearing concerns far more "new evidence" than it does errors in the original RPD determination, the standard by which the RAD considers that determination is of reduced impact in these particular circumstances. [29] By way of general comment, the RAD commenced its operations in December 2012, following amendments being made to IRPA. The first Court review of a RAD decision was in May 2014.22 [30] In a previous decision,23 I considered in depth and in detail the chronology of the various views of the Court's jurisprudence concerning the proper role of the RAD as it has developed. These views have not always been consistent and a number of nuances have emerged. Fundamental questions have been certified, two of which were heard by the Federal Court of Appeal in late September and early October 2015 with judgment currently reserved. In the meantime and in light of the case law I referenced in my earlier decision, I have concluded that a practical and pragmatic approach24 to the matters in question is appropriate and will take that approach in this case as I had concluded in my previously cited decision which, itself, largely relied on the Court's decision in Huruglica:25 Bearing always in mind that an appeal to the RAD is not in the nature of a judicial review, I am to undertake a comprehensive review of the RPD decision and the RPD Record in light of, and sufficient to, resolve the issues raised and assess the errors alleged in submissions by the parties in the RAD appeal. As well, I am to make an independent assessment of any new documentary evidence provided to the RAD pursuant to subsection 110(4) of IRPA or evidence arising from a hearing under section 110(6) of IRPA.26 I am to come to an independent determination of these questions, subject to deference being given to the findings of the RPD with respect to credibility and those matters about which the RPD was in a better position to make an assessment than is the RAD. Without any common specific standard of deference being provided by the Court, I will measure the RPD findings in light of the examples provided by the Court to date. Of course, all of this is to be accomplished in view of the objectives of the Act with respect to refugees set out in subsection 3(2) of IRPA. [31] In addition, the standard of correctness should be used regarding an alleged error of law, including a breach of natural justice.27 ANALYSIS OF THE MERITS OF THE APPEAL Wife - Admission of documents pursuant to subsection 110(4) [32] As noted earlier, after the matter was returned to the RAD the first time, the appellant wife then raised an additional basis of claim. This related to her discovery that her husband was being pursued by Nigerian businessmen who believe he had defrauded them in a series of transactions. This claim was primarily based on the wife happening across a voluminous series of emails between the husband and those who felt he had defrauded them. There are approximately 40 pages of such communications.28 [33] The circumstances under which the wife discovered the documentation are set out in her 11 page written statement.29 The highlights of this statement indicate that she first stumbled upon the emails on October 25, 2013, over three months after the RPD hearing. She forwarded copies of these documents to her own email account. Given the historical abuse she had suffered at her husband's hand, she was very reluctant to confront him with this information. She consulted an official at her church who advised that she wait until she felt safe before doing so. The wife also forwarded the emails to this official for safekeeping should something happen to her after speaking with her husband. [34] The wife spoke to her husband on October 30, 2013. He was extremely upset with her for "prying into his business affairs". He told her he had already made arrangements to reimburse one of the people in Nigeria by installment payments. The wife remained very concerned because she knew from the emails that there were other disgruntled former clients, customers and business partners looking for her husband. Thereafter, she persisted in asking him for updates on the situation. The wife's newly found courage to press the husband further aggravated the marital situation. Later in November 2013 the husband temporarily moved to another town for employment purposes and returned in January 2014. The domestic violence against the wife and the children escalated. [35] In a telephone conversation around Christmas 2014 with her sister who lives in Nigeria, the wife learned that there were rumors that the wife and her family had fled the country because they had been stealing money. This conversation led her to decide to try to make direct contact with those people disaffected in Nigeria to find out about the situation. However, somehow the husband learned of this plan and, on two occasions, cut off the home's Shaw communication accounts. On February 1, 2015 the wife made her first direct contact with one of the primary people involved in sending the threatening emails to her husband through a friend's email account. The man she contacted confirmed that, not only had her husband been directly involved in defrauding people but also, on some occasions he did so through the use of his Nigerian company of which the wife was a company officer. He made it clear that those responsible for the theft would face retribution. [36] As the domestic violence situation continued in Canada the wife sought counseling at a local women's shelter. The husband learned of this and became even more violent. Ultimately, the wife and the children left their home and moved into the shelter. At the same time, the wife sought and received a judicial protection order on March 21, 2014. In addition, the husband was removed from the family home to which the wife then returned. The wife fears that if she and the children, along with the husband, are returned to Nigeria he will have free reign to continue and increase his abuse of them, without their having the safety of state protection which they enjoy in Canada. [37] In addition to the above, in her statement the wife also raised the perilous situation that arose from her husband's involvement with the former government of Rivers State. She maintains that he had carried out some "fraudulent assignments" on behalf of the Governor of the government treasury. She did not learn full details of this until October 2013. She was aware that her husband was being beaten and pursued by people who opposed the government he had worked for even before they left the country. In her statement she writes that she did not include anything about what she knew about this topic at the time in the original joined BOC narrative because her husband forbid her from doing so. She was to write "only what he wanted me to write". [38] I have considered the proposed new email evidence and the written statement of the wife in connection with the circumstances under which she obtained these documents. Some of the documents date from the months just prior to the July 2013 RPD hearing but most are dated thereafter. They contain detailed allegations and the husband's responses concerning a number of matters. They do contain threats against the husband and extend to those made against the family. Clearly, some of the documents were in existence prior to the determination of the RPD. However, they were not discovered by the wife until some months after that determination had been made. In that regard, the RAD could not expect that they would have been presented to the RPD. [39] The first RAD appeal confirming the RPD decision was determined on November 20, 2013. The wife did not discover the documents until less than one month before that RAD decision was written. Theoretically, if the circumstances had been otherwise, the wife might possibly have been able to have the family's then counsel provide the documents to the RAD by means of a RAD Rule 29 application. However, given the newness of the information, the lack of an opportunity to follow up with those living back in Nigeria to confirm the veracity, the abusive domestic situation the wife found herself in at the time, I find it overmuch to reasonably expect that, in all the circumstances, the wife would have able to accomplish that disclosure task and the amendment of her appeal in such a short timeframe. [40] I also find that these documents are material and relevant to her claim based on the threats that the husband's former business associates have raised against him and the family. While it will be a matter left for the RPD's ultimate determination, the number, form and content of the emails and their variety all are supportive of the conclusion that they are credible. [41] In the result, I find that the documents are admissible and should be fully canvassed by the RPD upon the redetermination. As will be further discussed in the Remedy portion of this decision, the appeal before me is not one by which the entire matter could be resolved by a subsection 110(6) RAD hearing. The RPD as well will have the opportunity to consider the wife's allegation of future domestic abuse. Husband - Admission of documents pursuant to subsection 110(4) [42] As noted earlier, the husband has submitted two sets of new documents for admission before the RAD pursuant to subsection 110(4). The first set was presented to the second RAD Member. One document consisted of the husband's brother's notarized statement dated March 20, 2015 relating how it was that the father of the husband came to be kidnapped and subsequent extortion attempts. The kidnapping occurred in February 2015, long after the RPD determination and after the first RAD appeal. It describes a ransom demand of 40 million Naira (approximately C$280,000) which, if it were not paid, the father would be killed. Time was sought from the kidnappers in order to give the husband the opportunity to sell his Nigerian home in order to pay. In the meantime, the husband made three small periodic payments. The primary focus of the kidnappers is said to be on the husband as they believe he is the one who is the source of the family's wealth. The police were contacted by the husband's relatives. They advised that the family meet the ransom demand. The police also opened an investigation which fact is recorded in the second document, a March 3, 2015 Interim Police Report. Both documents refer to a February 2015 kidnapping of the father. [43] I find that the two documents mentioned above meet the criteria of subsection 110(4) in that both the documents themselves and the events described in them did not arise until after the RPD had made its determination. They are clearly relevant and material to the allegations concerning the husband's new claim that, upon any return to Nigeria, he would be personally pursued with his life and well-being at risk from the same individuals that extorted him with regard to his father. Inasmuch as I have ordered two separate redeterminations in this matter, the RPD will have the final word on whether or not these documents are credible. [44] The second set of new documents presented to this third RAD Panel is more problematic than the first set. The documents consist of the first page of a September 20, 2015 police investigation report. It refers to a body being discovered in the forest on September 19, 2015, later identified to be that of the husband's father. There is no explanation provided as to why only the first page of the police report was disclosed. The second document is a newspaper article from the "Metro" newspaper titled, "Recent Abduction, Murders not unsolvable, says police Commissioner". It is dated June 24, 2015. This document too refers to the husband's father's body being discovered in the forest. It also notes that the father's remains had been taken to the morgue. The obvious discrepancy between the two documents is that the June 2015 newspaper records the finding of the father's body months before the time of its discovery noted in the police report, i.e., September 2015. Both documents cannot be accurate. [45] The documents found in the second set are each dated after the RPD determination and after the second RAD appeal. In that sense they both meet the criteria set out in subsection 110(4) of the Act. Like the first set, they are also material and relevant to the husband's new claim. Their credibility however is in serious doubt. If it were appropriate for the RAD in the particular circumstances of this case to conduct a hearing under subsection 110(6), the obvious inconsistencies between the documents would be explored in an effort to establish the credibility of the husband's claim. However, as I will discuss more fully in the Remedy portion of this decision, I am of the view that I should not hold such a hearing in this matter and that a rehearing and redetermination by the RPD is the more prudent course to resolve these claims. Joinder [46] As noted earlier, the wife and the minor appellants sought to separate their claims from that of the father. This application was made to the second RAD Member. The Member refused the severance application with written reasons and in subsequent written reasons rejected all of the appeals on the merits concerning the substantive claims for protection of all of the appellants. [47] On judicial review, the Court quashed the second Member's determinations and referred the matter once again to the RAD for redetermination by a different RAD Member. As mentioned earlier, inasmuch as a breach of procedural fairness was the basis for the Court's order, none of the second RAD Member's written reasons regarding severance or his broader reasons regarding the merits of the claims and the admissibility of new documents were included in the Record before me. [48] In any event, my task is not to review the reasoning of either of the proceeding RAD Members but, rather, to conduct an appeal of the original RPD decision, in addition to making fresh rulings on the application to separate the joined claims as well as the admissibility of subsection 110(4) new documents. [49] With respect to joining and separating claims, the RAD Rules provide: 40. The Division must join any appeals of decisions on claims that were joined at the time that the Refugee Protection Division decided the claims. 41. (1) A party may make an application to the Division to join appeals. (2) A party may make an application to the Division to separate appeals that are joined. [. . .] (5) In deciding the application, the Division must consider any relevant factors, including whether (a) the appeals involve similar questions of fact or law; (b) allowing the application would promote the efficient administration of the Division's work; and (c) allowing the application would likely cause an injustice [50] Rule 55(1) of the RPD Rules sets out the mandatory nature of the joinder of claims advanced by related persons:30 55(1) The Division must join the claim of a claimant to a claim made by the claimant's spouse or common-law partner, child, parent, legal guardian, brother, sister, grandchild or grandparent, unless it is not practicable to do so. [51] Given the familial relationship between the appellants and the commonality of their original BOC narrative it was correct and in compliance with RPD Rule 55(1) that all of their claims were joined from the outset. However, in light of my earlier conclusions that the new documentation should be considered in this appeal, I conclude that it would be an error to not separate the claims as proposed by Mr. Matas on behalf of the appellant wife and that, if the joinder is maintained, that result would be in violation of the appellant wife's procedural fairness rights. [52] In this regard, I place considerable reliance on the 2013 Court decision of Justice Gleason in Rezmuves.31 The decision concerned the RPD but I find it is equally instructive for the situation I must address at the RAD. [53] In Rezmuves the original claim was that of a Roma woman from Hungary and her children who alleged discrimination and victimization by reason of their ethnicity in that country. Their claims were joined with that of the woman's estranged spouse. The woman's lawyer sought dis-joinder from the spouse's claim due to a conflict of interest which had developed between the spouses. The application was refused and the case proceeded. In its ultimate decision, the RPD found the woman's claims that she had been harassed, assaulted and raped by members of the Hungarian Guard was not credible. This conclusion was premised in large part on the fact that the woman's spouse did not believe that the rape had occurred. [54] Justice Gleason found that the standard of review she should apply to the RPD's decision not to separate the claims was that of correctness and that the RPD Member was not entitled to deference in respect of his ruling on the joinder issue, even if it did involve the application of a provision in the RPD Rules.32 [55] The primary basis upon which the court found that the failure to separate the claims amounted to a breach of procedural fairness was that, so long as the claims were joined, there is no provision under the RPD Rules for one claimant to cross examine another claimant. In the case before Justice Gleason, the RPD Member had followed the typical inquisitorial approach taken by the RPD whereby the woman was first questioned by the Member about the alleged rape. The Member then questioned the man during the course of which he testified that he did not believe the rape allegations. The woman had acknowledged that she knew that her spouse held that belief. In coming to her conclusion that the failure to separate claims was a breach of procedural fairness Justice Gleason found: [26] In the circumstances, the refusal of the disjoinder motion amounted to a violation of procedural fairness because Mr. and Ms. Resmuves were opposed in interest, Mr. Resmuves was questioned about his views on Ms. Resmuves' claim, Ms. Resmuves was not afforded the opportunity to cross-examine Mr. Resmuves and his views about her truthfulness were used by the Member as the primary reason to reject her claim. This is fundamentally unfair as Ms. Resmuves had no ability to test the unfavourable evidence of her estranged spouse nor to point out the rather obvious reasons why, following their separation, he might be pre-disposed against her. [56] And: [28] Here, the Rules did not provide for the right of Ms. Resmuves to cross-examine her co-applicant ex-spouse. In this regard, the Rules contemplate that co-applicants will share a common interest in the proceeding because no provision is made for a co-applicant to cross-examine another applicant. Such a provision would be expected if co-applicants with opposing interests were anticipated because cross-examination is available under the Rules in other instances where an adverse party may testify. For example, if as opposed to being a co-applicant, Mr. Resmuves had been called as a witness, Ms. Resmuves' counsel would have been entitled to cross-examine him under Rule 57(3). Likewise, the Rules provide that counsel may question (but not cross-examine) their own clients (Rule 57(2)). However, no provision is made for cross-examination of an unrepresented co-applicant. Thus, the Rules, themselves, appear to contemplate that claims will not be joined if the co-applicants are adverse in interest. [29] More importantly, procedural fairness requires that the right of cross-examination be afforded to a refugee claimant when confronted with testimony that is adverse to the claimant's position. Cross-examination is fundamental to the truth seeking function of a court; in Wigmore on Evidence (Chadbourne Rev 1970) vol 3 at §1367 cross-examination is stated to be "beyond any doubt the greatest legal engine ever invented for the discovery of truth". In many instances, cross-examination has been found to be no less important in the administrative context (see e.g. Innisfil at 166-167 and Armstrong v Canada (Commissioner of the Royal Canadian Mounted Police), 1994 CanLII 3459 (FC), [1994] 2 FC 356 at para 26, 73 FTR 81), affd 1998 CanLII 9041 (FCA), [1998] 2 FC 666, 156 DLR (4th) 670 (FCA). [30] The recent decision of this Court in Nagalingam v Canada (Minister of Citizenship and Immigration), 2012 FC 176, 405 FTR 62 [Nagalingam] likewise supports the conclusion that the applicants ought to have been afforded the right to cross-examine Mr. Resmuves. In Nagalingam, this Court considered the refusal of the Minister's Delegate to permit the applicant to cross-examine a witness who filed affidavit evidence that was adverse to the applicant's position. In finding that the Delegate had erred, my colleague, Justice Russell, stated at para 165: Given the important interests at stake in the Applicant's case, including freedom from persecution and torture and the rights to life, liberty and security of the person, it is my view that both section 7 of the Charter of Rights and Freedoms and the common-law principles of natural justice required that he be given an opportunity to test the evidence given by Detective Fernandes [by cross examination]. Similar logic applies in this case (although section 7 of the Charter is not engaged). [31] The Member thus erred in relying on the evidence of Mr. Resmuves to deny Ms. Resmuves' claim without providing her an opportunity to test his evidence. Such cross-examination is envisaged under the Rules only if the claims had been disjoined. The Member's refusal of the disjoinder request and consequent denial of the right of the applicants to cross-examine Mr. Resmuves therefore violated the applicants' procedural fairness rights and must result in the decision's being set aside. (RAD emphasis) [57] Applying the above principles to the case before me, I find that it would be inappropriate for the claims of the wife and the husband to continue to be joined. If they remained joined, presumably the Member hearing the case would receive evidence from the wife as to her historical and ongoing abuse at the hands of her husband. As well, she would testify as to his failure to advise her of the additional threats she and the children could face from those allegedly defrauded associates of the husband who allegedly expanded the target of the retribution to the entire family. The Member would then elicit testimony from the husband which, I find likely, would include his exculpatory denials of abuse and explanations concerning his business dealings which might minimize the threats to the family. [58] In the above scenario where the claims remain joined, there is no provision for the wife to cross-examine the husband. His evidence would not be tested. As Justice Gleason found, this would amount to a denial of the wife's right to challenge the evidence of someone whose interests are adverse to hers. I find that this would cause an injustice and not promote the efficient administration of the RPD's work. [59] Accordingly, I order that the claims of the wife and children be separated from those of the husband. As noted at the outset, the ultimate result of this RAD appeal is that the matters are being returned to the RPD for redetermination. They are to be re-determined separately by a Member other than the Member who conducted the original joined RPD hearing. I leave it to the RPD to decide whether or not the two separate re-determinations are to be conducted by one Member or two different RPD Members. REMEDY [60] The result of the original RPD determination was that, with regard to the initial narrative set out in the BOC, the RPD Member found the story to be credible. However, the Member also concluded that no nexus had been established to a Convention ground and that, with regard to the section 97 claim, the risks faced by the appellants were not personally targeted and were those faced generally by others in Nigeria. Typically, to the extent that credibility was established through the direct testimony of the appellants provided to the RPD, the majority of the legal authorities have found that I would owe deference to those credibility findings. However, the claims have now expanded dramatically such that I find it would be imprudent for me to extend such deference generally from the limited exploration conducted by the RPD on what was then a very simple claim. I find that that positive credibility finding is not reliably transferable to the considerably broader scope of the claims as they are now constituted. [61] The wife now alleges that she has faced ongoing abuse from her husband for many years prior to leaving Nigeria and maintains that, if all of the appellants are returned to Nigeria, he would continue with the abuse in circumstances where she could not avail herself of effective state protection as she has been able to do here in Canada. As well, she now maintains that disgruntled former business associates of the husband may harm her and the appellant minors as part of their plan to seek retribution against the husband. Complicating matters further, she also alleges that a political element has arisen from threats made against her husband, and through him, the rest of the family, arising from his involvement in corrupt activities when working for a former Governor of Rivers State. [62] The husband's claim has expanded to include his allegation that he fears persecution through the additional threats of those who have accused him of political corruption. In addition, he also advances a claim alleging a risk to his life or of cruel and unusual treatment or punishment from those who were involved in the kidnapping, extortion and murder of his father. [63] Given that the husband, like the wife, has also maintained the original claim set out in the RPD BOC, in developing a context within which I could assess the overall credibility of both the husband and the wife for all of the claims, I am of the view that it would be necessary for me to re-question them on issues already dealt with by the RPD. Paragraph 111(2)(b) of IRPA provides that the RAD may only refer a matter back to the RPD for redetermination where it could not make a determination to either confirm the RPD decision or substitute it with one the RAD, in its opinion, believes should have been made without hearing evidence that was presented to the RPD. I find that such a situation pertains in this case. Moreover, these claims have followed a lengthy and convoluted course since their inception. Having each of the matters heard independently by the RPD, covering every basis of claim would, in my estimation, be more likely to provide an efficient and fairly based result than to attempt to do so with partial hearings at the RAD coupled to previous credibility findings of the RPD based on a limited story. [64] Given the extent to which the claims have become so complex, as well as the ramifications of 111(2)(b), these now severed claims are to be redetermined by the RPD by a Member or Members different from the one who conducted the original RPD hearing. I leave it to the RPD to determine if the claims should be heard by the same new Member or different Members. CONCLUSION [65] For the foregoing reasons, the RAD sets aside the determination of the RPD. Further, the RAD orders that the claim of the appellant, XXXX XXXX XXXX, be separated from the claims of the appellants, XXXX XXXX XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX. In addition, the RAD orders that the two now severed claims be referred to the RPD for redetermination by RPD Member(s) different than the Member who determined the original RPD decision. The appeals are allowed. (signed) "Philip MacAulay" March 18, 2016 Date 1 UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137 (the "Convention"). 2 Immigration and Refugee Protection Act ("IRPA" or the "Act"), S. C. 2001, c. 27. 3 Refugee Appeal Division Rules (the "RPD Rules") SOR/2012-257. 4 Refugee Appeal Division (RAD) - Appeal Record (AR) 3, Exhibit 1, RAD-AR 1, Exhibit 3, Refugee Protection Division Record (RPDR) pp.3-5. 5 RAD-AR 3, Exhibit 1; RAD-AR 1, Exhibit 3; RPDR, pp. 1-427. 6 RAD-AR 3; RAD-AR 1, Exhibit 3; RPDR, p. 427. 7 X (Re), 2013 CanLII 88065 (CA IRB). 8 Nnah v. Canada (Minister of Citizenship and Immigration), 2015 FC 77. 9 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 10 Ibid. p. 2, paras. 2-3. 11 RAD-AR 2, Exhibit 4. 12 RAD-AR 2, Exhibit 4, pp. 3-8E. 13 RAD-AR 2, Exhibit 4. Pp. 9-32. 14 RAD-AR 2, Exhibit 5, pp. 18-29. 15 RAD-AR 2, Exhibit 5, pp. 27-29. 16 RAD-AR 3, Exhibit 3. 17 RPDR 3, Exhibit 2; RAD-AR 2, Exhibit 4 with respect to the wife and Exhibit 5 with respect to the husband. 18 RAD-AR 3, Exhibit 2; RAD-AR 2, Exhibit 4, pp. 80-83. 19 RAD-AR 3, Exhibit 2; RAD-AR 2, Exhibit 5, pp. 31-38. 20 RAD-AR 3, Exhibit 3. 21 RAD-AR 3, Exhibit 1; RAD-AR 1, Exhibit 3; RPDR, p.427, CD, 00:32:50 to 00:47:30. 22 Iyamuremye v Canada (Minister of Citizenship and Immigration), 2014 FC 494. 23 X (Re), 2015 CanLII 30384 (CA IRB) at paras. 47-80; errata note: the first two references to "RPD" in para 51 correctly should read "RAD". 24 Alyafi v. Canada (Minister of Citizenship and Immigration), 2014 FC 952 at paras. 46-52; Tota v. Canada (Minister of Citizenship and Immigration), 2015 FC 890, at paras. 18-19. 25 Huruglica v Canada (Minister of Citizenship and Immigration), 2014 FC 799 (at paras 54-55) 26 Dhillon v. Canada (Minister of Citizenship and Immigration), 2015 FC 321, at paras.14-24; Spasoja v Canada (Minister of Citizenship and Immigration), 2014 FC 913, at paras. 42-43: Siliya v. Canada (Minister of Citizenship and Immigration), 2015 FC 120, at paras. 24-25. 27 Basran v. Canada (Minister of Citizenship and Immigration), 2015 FC 1221 at para. 20. 28 RAD-AR 3, Exhibit 2; RAD-AR 2, Exhibit 4, pp. 9-53. 29 RAD-AR 3, Exhibit 2; RAD-AR 2, Exhibit 4, pp. 3- 8E. 30 Refugee Protection Division Rules SOR/2012-256 (RPD Rules) 31 Rezmuves v. Canada (Minister of Citizenship and Immigration), 2013 FC 973. 32 Rezmuves v. Canada (Minister of Citizenship and Immigration), 2013 FC 973, at para. 7. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR: VB5-02010