VA8-01967

RPD File No. / No de dossier de SPR : VA8-01967 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Claimant(s) XXXXX XXXXX Demandeur(e)(s) d'asile Date(s) of Hearing 14 April 2009 Date(s) de l'audience Place of Hearing Calgary, AB Lieu de l'audience Date of Decision 24 September 2009 Date de la décision Panel Tribunal Counsel for the Shirzad S. Ahmed Conseil(s) du / de la / des Claimant(s) demandeur(e)(s) d'asile Tribunal Officer N/A Agent(e) des tribunaux Designated N/A Représentant(e)(s) Representative(s) Désigné(e)(s) Counsel for the Minister Daniel Davidson Conseil du ministre Reasons and Decision [1] These are the reasons of the Refugee Protection Division (RPD) in the refugee protection claim of XXXXX XXXXX (the "claimant"), a citizen of Burundi, pursuant to section 96 and sub section 97(1) of the Immigration and Refugee Protection Act (the "Act").1 [2] The Minister in charge of Canada Border Services Agency, through his representative, is opposing the claimant's claim for refugee protection. It is the Minister's position the claimant is a person referred to in Section 98 of the Act (and the Schedule) and should therefore be excluded from the definition of Convention refugee. Further, he should not be found to be a person in need of protection as outlined in section 97(1) of the Act. The Minister is of the opinion the claimant ought to be excluded from refugee protection pursuant to article 1F(a) of the Convention.2 Section 98 of the Act states: 98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection. Article 1F(a) reads as follows: F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes. ALLEGATIONS [3] The claimant's complete allegations are set out in answer to Question 31 of his Personal Information Form3 (PIF) and need not be repeated here in detail. The claimant's PIF narrative forms the basis for the inclusion portion of his claim. [4] The Minister's counsel alleges the claimant ought to be excluded on the basis of sections 1F(a) because of his position with Burundi's UPRONA (Union pour le progres national) party. The Minister's counsel alleges the claimant, through his position and work as a member of UPRONA since XXXXX, its XXXXX from XXXXX and its XXXXX from XXXXX, has perpetrated crimes against humanity. [5] I note that the claimant's "inclusion" case was previously assessed by the Board on an expedited manner and without a hearing before a Member. In a decision reached by the Board, a potential for exclusion was not taken into account. The Minister successfully reviewed that decision at Federal Court and the case was referred back to the Board and was heard by this panel. [6] At the hearing, the parties agreed that the hearing would focus on the claimant's potential exclusion because neither took a position against the conclusion reached by the Board the first time on "inclusion". I also communicated to the parties that in case I find the claimant excluded, I need not deal with the inclusion portion of their claim in my reasons. In other words, because no person within the scope of Article 1F can qualify for refugee protection, the case law has established that it is not necessary to rule on the merits of the claim4. Identity [7] The claimant's identity as a national of Burundi is established by his testimony, and various identity documents filed including his passport.5 The claimant's identity was not an issue during the hearing. DETERMINATION OF EXCLUSION: A Question of Complicity [8] The determinative issue in this case is whether the claimant, through his actions as a XXXXX member of UPRONA, has either committed a crime against humanity, or is complicit in such crimes. [9] The onus is on the Minister to establish there exist "serious reasons to consider" the claimant has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes. The Federal Court has defined "serious reasons to consider" as less than the civil standard of balance of probabilities, but more than mere conjecture or speculation.6 [10] From my review of the evidence, I find that UPRONA is an organization with multiple purposes, including interest in the media, education, etc. It is also an organization that from time to time committed atrocities, such as attacks on Hutu civilians. I therefore find that UPRONA was not an organization with a brutal and limited purpose. [11] Since UPRONA is an organization that has a legitimate purpose but also commits international crimes (including war crimes and crimes against humanity) from time to time, in order for the claimant to be excluded, the Minister must establish either that the claimant committed the atrocities or was complicit. complicity is determined by the following factors, again as identified by the Federal Court in Ramirez:7 * Method of recruitment * Nature of organization * Position and rank in organization * Knowledge of atrocities * Opportunity to leave organization * Length of time in organization DETERMINATION [12] The panel finds the claimant is excluded from all three protection grounds available to refugee claimants, pursuant to Article 1F(a) of the Geneva Convention.8 Having found the exclusion applies, the panel is not obliged to assess the merits of the refugee claim.9 ANALYSIS [13] The claimant is a XXXXX year old man. The panel finds the claimant to be an educated and eloquent individual whose answers were reflective and responsive of the questions asked. This is a complex case, and the lengthy and helpful submissions of both the claimant's counsel and Minister's counsel have been carefully considered, along with the documentary evidence and review of the oral evidence provided during the hearing. [14] It is undisputed fact that the claimant joined UPRONA in XXXXX. UPRONA was the party created to demand independence in 1961and remained the only official political party until 1993 when multiparty politics was introduced. It is also an undisputed fact that the claimant became UPRONA's XXXXX in XXXXX and its XXXXX in XXXXX. [15] In October 1998, the party was split over participation in the Arusha peace negotiations. I note that a number of documents before the panel have considered the UPRONA wing XXXXX which opposed the peace process to have assumed a hard-line position. I find that the XXXXX wing of UPRONA has always rejected the Arusha peace process, formally on the grounds that former President Pierre Buyoya should not have negotiated with people who had conceived and executed a genocide targeting mainly the Tutsis. I find that an undivided UPRONA, with the claimant in it in XXXXX, had failed to practice those principles during its many years in power. [16] XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. [17] I note that the claimant's testimony by and large portrayed the Tutsi as the chief victims of the violence that erupted in October 1993. As a XXXXX, championing the Tutsi cause allowed the claimant to argue that he only took positions on principles. I find that this view glosses over numerous massacres of Hutu civilians by the Tutsi-dominated army since ethnic bloodshed began in October 1993. It also ignores the fact that it was senior Tutsi military officers who sparked the violence in the first place when they murdered the country's first democratically elected president, a Hutu. They then did everything they could to thwart successive coalition governments led by the Hutu. [18] In Burundi, the Tutsi, who were the traditional ruling class, never relinquished power after independence. A Hutu-led Government had just assumed office for the first time when the Tutsi-led coup took place in October 1993, setting off massacres. The killing was on both sides. Not only were thousands of Tutsis massacred by Hutu youth groups in the countryside, but the Tutsi-controlled army massacred thousands of Hutu in retaliation. The claimant however argued that what happened in 1993 was genocide, a state-orchestrated massacre of civilians, just like the one in Rwanda. He argued that immediately after the 1993 coup, high-ranking Hutu members of the deposed government encouraged the Hutu youth groups to massacre Tutsis. XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX.10 UPRONA and crimes against humanity [19] Crimes against humanity in Article 7 of the Rome Statute of the International Criminal Court (the 'Rome Statute')11 is defined as follows: (1)For the purpose of this Statute, 'crime against humanity' means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: A. Murder; B. Extermination; C. Enslavement; D. Deportation or forcible transfer of population; E. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; F. Torture; G. Rape, sexual slavery, enforced prostitution...or any other form of sexual violence of comparable gravity; H. Persecution against any identifiable group or collectively on political, racial, national, ethnic, cultural, religious, gender... I. Enforced disappearance of persons; J. The crime of apartheid K. Other inhumane acts of similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. [20] The Minister submits there are serious reasons for considering that the Burundian government and the military under UPRONA committed crimes against humanity in 197212, 198813, as well as during the events that followed the 1993 coup attempt, and those in 1994, 199514. The crimes against humanity included indiscriminate massacres of Hutus by the military and other security forces in Burundi. [21] The claimant does not dispute there were atrocities committed by the Burundian authorities XXXXX XXXXX. However, he sees it as a reaction against the indiscriminate killings of the Tutsis that the Hutus had already started. At times, the army had to step in to maintain order, and at times, individual members of the army over-reacted to a Hutu offensive. Method of Recruitment [22] The claimant testified that he accepted employment at the state-run XXXXX XXXXX of his free will. He also testified that even before he joined UPRONA officially, he had learnt about atrocities committed by the Government in 1972 (which had occurred during his student years), including the Government's extra-judicial killings of Hutu intellectuals. He also stated that at the time, even though officially and Constitutionally the military could not be part of a political party, it was the military that appointed the president of UPRONA's central committee. He also confirmed that UPRONA was the single party that was ruling Burundi. [23] Knowing all this, the claimant testified that he voluntarily joined the party in XXXXX. The claimant became XXXXX of the XXXXX in XXXXX, and within the party, he became UPRONA's XXXXX in XXXXX and its XXXXX in XXXXX. The claimant admitted that he was not coerced into accepting any of these positions. Nature of the Organization [24] During its power as the sole political party in Burundi, UPRONA and its security forces committed many acts of atrocities that resulted in hundreds of thousands of dead.15 The claimant denied that the XXXXX incited the acts of violence but testified that like in all dictatorships, XXXXX, had to take a pro-government stand. [25] The Minister argues that the claimant's employment at the XXXXX, operated by the government, from XXXXX until XXXXX, constitutes complicity in the government's and the army's actions against the Catholic Church, the Catechists and the murder and displacement of large groups of Hutus. According to the Minister, this is because the XXXXX incited the violence. The claimant was in the position of an XXXXX from XXXXX and that of the XXXXX from XXXXX.16 [26] More significantly than the claimant's role in the XXXXX XXXXX, I find that the nature of his long history with the UPRONA problematic. The claimant has been XXXXX with UPRONA since XXXXX: as a XXXXX from XXXXX and as XXXXX from XXXXX.17 From XXXXX to XXXXX, he had also been a XXXXX. [27] UPRONA was formed in 1957 and was legally recognized in 1960.18 It was virtually the only party in power until Burundi's first multi-party elections in 1993 when it suffered a decisive defeat. At that time: UPRONA and the security forces were unwilling to cede power and were closely associated with violence by the Sans échec ("Without Failure") and other Tutsi militia in the 1993 to 1996 period. Senior members of UPRONA XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX were among the civilians associated with the 1993 coup attempt. XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX.19 [Emphasis as per the original]. [28] XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. [29] Prior to breaking ranks with the other wing of the party, UPRONA was largely responsible for a strike that brought the capital virtually to a halt in the following manner: Grenades were thrown in the streets to stop workers going to work and during the night of the 15th - 16th [ie, February 15-16, 1995] shots were reported in Kamenge district, an almost exclusively Hutu area. Hutus are the ethnic majority in Burundi. Mr. Kanyenkiko's resignation is a new victory for hard-line supporters within UPRONA, who had already secured the earlier resignation of the national assembly President, Mr. Jean Minani. Mr. Minani, who has since become President of the Front for Democracy in Burundi (FRODEBU, main Hutu party), was accused of having links with Hutu extremists. XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX.20 [30] XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX.21 [31] XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX expression against acts of killing only came after 1993 when UPRONA had already lost its dominant position as the only party in power. Even though the claimant had been a XXXXX XXXXX XXXXX XXXXX XXXXX member of UPRONA and a XXXXX XXXXX XXXXX XXXXX XXXXX for a period before that, and that the government was responsible for many acts of atrocities, I have no sufficient credible evidence before me to conclude that he ever aired his disapproval. In fact, the UPRONA-led government through its security forces was engaged in waves of killings in 1965, 1969, 1972, 1988 and 1991 that resulted in hundreds of thousands loosing their lives.22 In other words, for the period that UPRONA had a monopoly of violence, the claimant had no real difficulty with that violence. This was while he had plenty of opportunities to denounce it, both from the XXXXX, and later from the XXXXX XXXXX. Yet, he decided to join the party in XXXXX and moved up the ranks XXXXX XXXXX. I also note that the claimant testified that the XXXXX was like in any military dictatorship where the XXXXX the will of the government. In such a climate, he was promoted to become the XXXXX in XXXXX. Even if I accept the claimant's testimony that the XXXXX never actively called for the extermination of the Hutus, I find that had the claimant taken a critical position on government policy, in a dictatorship, at the very least, he would not have been promoted to XXXXX. I therefore find that the rhetoric of finding Hutu's violence offensive was more consistent with XXXXX XXXXX having to share power with the FRODEBU than because of his stated principles.23 [32] The panel finds the claimant was well aware of the nature of his party all along and when he became XXXXX. Position/Rank in the Organization [33] It is undisputed evidence that the claimant was the XXXXX of the XXXXX from XXXXX to XXXXX, a member of the UPRONA since XXXXX, UPRONA's XXXXX since XXXXX and XXXXX since XXXXX. In XXXXX, the claimant XXXXX XXXXX XXXXX XXXXX XXXXX. [34] The panel finds the claimant's position as a XXXXX XXXXX and XXXXX not to be an insignificant one, but rather one of importance, XXXXX XXXXX. The claimant defends his actions by stating he took a position against massacres, XXXXX XXXXX XXXXX XXXXX XXXXX. For the reasons stated above, I have already found that he only did this once UPRONA was being forced to share power with the other political actors, and not for the period that it had a monopoly on violence. I also note that the claimant had testified that XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. I therefore find that the claimant was in an influential and important position. Based on his evidence, it is not open to the claimant to suggest his role was minor or insignificant.24 Knowledge of the Atrocities [35] The panel finds the claimant was fully aware of the atrocities being committed by the UPRONA-led government and security forces in Burundi. [36] The claimant was aware that UPRONA under the leadership of Bagaza from 1976 to 1987 had committed human rights abuses, including arbitrary arrests, had tortured prisoners and had significantly limited religious freedom. Starting in 1980, he was aware that police officers and other security forces, under the direction of Bagaza, committed human rights abuses. The claimant stated that Bagaza was a real dictator and that he ruled the country as such. The claimant stated that he joined the party in XXXXX, a choice he never regretted which allowed him to obtain the necessary experience to move up the ranks. He also said that his experience with the party taught him about conducting meetings and managing public opinion. [37] In 1993, XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. Melchior Ndadaye (a Hutu) of FRODEBU was elected president. Only months after Ndadaye had assumed office, he was assassinated by the army, a purely Tutsi entity and traditionally loyal to UPRONA.25 While the claimant maintained that UPRONA was quick to condemn Ndadaye's assassination, according to the country documents, it took them three days to do so, and only after the international community had already condemned the act.26 The claimant also stated that what the army had done did not accurately reflect the will of UPRONA, and that the act was committed by a handful of extremist soldiers. The country sank into a civil war, with a Hutu uprising and the army's attempt to suppress it. The claimant did not dispute the fact that the military, as well as the Hutu extremists, committed widespread atrocities as a result. Then: Leaders and allies of UPRONA organized themselves to resist the return of power to FRODEBU control. The Tutsi political opposition, backed by the Tutsi-dominated army, was reluctant to relinquish the power it had enjoyed since independence, and continued to force political concessions from the weakened FRODEBU government which could not consolidate its position. Tutsi youth formed armed groups, with the knowledge and even assistance of Tutsi soldiers... The FRODEBU government continued to be weaken as FRODEBU parliamentarians and officials were assassinated, arrested or fled into exile. The government requested international security assistance, a move violently opposed by UPRONA and the armed forces. In July 1996, Major Pierre Buyoya returned to power in a coup with the support of the armed forces which he claimed to have carried out to prevent further human rights violations and violence; many observers saw it as a completion of the October 1993 coup attempt...27 Regional and international diplomatic initiatives to end the crisis, often violently resisted by Tutsi dominated parties, led by UPRONA and supported by the army, began as early as 1995.28 [38] I find that the claimant, as a XXXXX member of UPRONA, was aware of the above and XXXXX XXXXX UPRONA's policies. During the hearing, when asked about the army's role in the killing, the claimant maintained that the army responded to the crisis at the time. He also stated that the army intervened to stop the atrocities and genocides that were being committed by the supporters of FRODEBU. He also stated the Constitution did not allow the members of the army to join a political party; therefore, it would not be fair to associate them with UPRONA. I find that the claimant made these statements to minimize the atrocities committed by the army. Also, given the traditional link between UPRONA and the army, I find that the claimant's attempt to defend the army, and his further attempt to minimize the relationship between UPRONA and the army, not credible, and not supported by the documentary evidence. I also find that during the civil war, during which time the claimant was XXXXX XXXXX with UPRONA, the documents are silent on what, if any attempts, UPRONA made to condemn the army's actions or to stop it. XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX,29 XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. Opportunity to Leave the Organization [39] The claimant testified that he was never forced to join UPRONA, and that he did so on his own free will. He denied that he had joined for his personal benefit but that this was how he thought he would be useful and helpful to the people. He stated that he took no material advantages for being a party member, but obtained experience that allowed him to move up the ranks. He stated he learnt about how to run meetings and manage public opinion. He also testified that he was never forced to maintain his membership or to move up the ranks. The claimant further said that he never regretted the fact that he joined UPRONA or that he moved up the ranks. He testified that he moved up the echelons and that by XXXXX XXXXX. The claimant stated that in this position, XXXXX XXXXX XXXXX XXXXX. By XXXXX, the claimant became XXXXX XXXXX XXXXX XXXXX. [40] It was also in 1993 that multi-party elections were held and that FRODEBU won the election. There are allegations that there was an attempted coup in 1993 by the UPRONA-backed army. The claimant stated that there was no coup, but that president Ndadaye (who was from the FRODEBU) was assassinated. XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX, some days after it happened, the country documents, including the UNHCR report, indicate that UPRONA was involved in the coup.30 [41] I find that the claimant willingly joined UPRONA, willingly stayed in it, and willingly moved up its ranks, never taking an opportunity to leave the party. XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX.31 For example, by August 1994, as UPRONA's XXXXX XXXXX XXXXX XXXXX XXXXX party had only received XXXXX percent of the votes in the Presidential election and XXXXX percent in the legislative one, was demanding for three-fifth of the government portfolio.32 XXXXX XXXXX XXXXX XXXXX XXXXX the winning party, FRODEBU, had already demonstrated incompetence and therefore did not deserve to maintain the balance of power. This, XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX, is more consistent with the claimant's willingness for UPRONA having a monopoly on power than with humanitarian principles. Length of Time in the Organization [42] The claimant testified that he willingly joined UPRONA in XXXXX, and that he moved up the ranks. By XXXXX, he became the XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. Counsel for the claimant argued that the claimant's principled position XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX should exonerate him from the application of Article 1F(a). For reasons already explained, the panel is not prepared to accept that the claimant's position XXXXX XXXXX XXXXX XXXXX XXXXX was out of principle. Further, even before the civil war that erupted after the coup attempt in 1993, UPRONA was the sole ruling party in Burundi since the country's independence in the 1960s. Even before 1993, the UPRONA-led government and the army had committed several atrocities that killed hundreds of thousands of innocent people.33 Yet, the claimant decided to join UPRONA, stay in it and move up its ranks, even before the split in the party that happened in the 1990s. The panel is not prepared to separate a claimant XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX with the claimant's willingness to join and be promoted within UPRONA when undisputed atrocities were taking place by the government and the army. THE CLAIMANT'S ARGUMENTS [43] XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. The claimant's argument about the atrocities committed prior to the 1993 civil war was that they were committed exclusively by the army, which did not involve UPRONA. Given that UPRONA was the only ruling party for all the period after independence until 1993 and that the documentary evidence establish a close relationship between the army and the party, and that the claimant's testimony also confirmed it, I reject the claimant's argument. [44] To justify his argument that the claimant XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX, the claimant provided several documents.34 These documents included reference letters35 that I find to be biased opinions not borne out of objective evidence. I therefore do not give them any weight. The claimant also included his own letter to XXXXX XXXXX dated XXXXX, 199936 as well as papers presented at conferences.37 I find these letters and papers to be the claimant's opinion and not objective evidence. I also find that his opinion is not borne out by objective evidence. I therefore give them no weight. [45] The claimant also testified that he was a member of a Burundian non-profit civil association against the genocide, XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. [46] XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. For reasons already explained, I have not made the same inferences as the claimant. In contrast, I have found that the claimant had been silent when an UPRONA-led government and army had a monopoly on atrocities, and only took a position against Hutu-led atrocities when any negotiation would include a division of power between UPRONA and the other political parties, mainly FRODEBU. I therefore do not find the claimant's memberships and activities in anti-genocide associations, no matter how colourfully dressed with a humanitarian façade, genuine. [47] The claimant argued that as a XXXXX, his positions against the Hutus who committed atrocities, is based on principle and not on racism. XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. I do not find that only because the claimant is a XXXXX, UPRONA's role in committing atrocities through the army can be ignored. [48] XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. CONCLUSION [49] Based on the claimant's testimony, the evidence filed and submissions of counsel and the Minister's representative, the panel finds there are serious reasons for considering the claimant has committed crimes against humanity, and finds pursuant to section 98 of the Act that the claimant XXXXX XXXXX is a person referred to in Article 1F(a) of the United Nations Convention Relating to the Status of Refugees. The panel finds therefore that the claimant is excluded from all three protection grounds available to refugee claimants. Having found that exclusion applies, the panel declines to make a ruling on the inclusion portion of his refugee claim. (signed) "Negar Azmudeh" 24 September 2009 Date (day/month/year) REFUGEE PROTECTION DIVISION / EXPEDITED PROCESS / JUDICIAL REVIEW / HEARING DE NOVO / MINISTER'S INTERVENTION / EXCLUSION / ART.1F(A) / CRIMES AGAINST HUMANITY / VOLUNTARY REPATRIATION / PERSONAL AND KNOWING PARTICIPATION / FAILURE TO DISASSOCIATE / MALE / NEGATIVE / BURUNDI 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Schedule 1 of the Act, at Sections E and F of Article 1 of the United Nations Convention Relating to the Status of Refugees. (the "Geneva Convention"). 3 Exhibit 1. 4 Gonzalez v. Canada, [1994] 3 F.C. 646 (F.C.A.) 5 Exhibits 3 and 6. 6 Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.); Chiau, Sing Chi Stephen v. M/C.I. (2000) 195 D.L.R. (4th) 422. Leave to S.C.C. denied on August 16, 2001 without reasons. 7 As articulated in Fabela v. M.C.I., 2005 FC 1026. 8 Supra, footnote 2. 9 Xie, Rou Lan v. M.C.I. (F.C.A., no. A-422-03), Decary, Letourneau, Pelletier, June 30, 2004; 2004 FCA 250. 10 Historical facts compiled from Exhibit 12, pp. 51-85. 11 Entered into force July 1, 2002. 12 Exhibit 12, p. 56. 13 Exhibit 12, p. 58. 14 Exhibit 12, p. 34, para. 57, 58. 15 Exhibit 12, p. 55-57. 16 Exhibit 1, Q7 of the PIF. 17 Exhibit 1, PIF, Q7. 18 Exhibit 9, p. 70. 19 Exhibit 9, p. 70. 20 Exhibit 9, p. 84-85. 21 Exhibit 9, p. 85. 22 Exhibit 9, p. 14, and Exhibit 12 p. 55-56. 23 Also see Exhibit 9, p. 12. 24 Sivakumar. v. MEI, [1994] 1 FC 433. 25 Exhibit 12, p. 66. 26 Exhibit 12, p. 64-65, Exhibit 9, p. 12. 27 Exhibit 9, p. 12. 28 Exhibit 9, p. 14. 29 Exhibit 9, page 70. 30 Exhibit 12, page 64. 31 Exhibit 12, p. 68. 32 Exhibit 12, p. 68. 33 Exhibit 12, pages 55-62. 34 Exhibit 10. 35 Exhibit 10, items 1-3. 36 Exhibit 10, item 4. 37 Exhibit 10, items 5-10. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD File No. / N° de dossier de la SPR : 2 RPD.15.7 (October 2007) Disponible en français RPD File No. /Dossier : VA8-01967 RPD File No. /Dossier :VA8-01967 1