MB6-01238

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. / No de dossier de la SAR : MB6-01238 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Date of hearing November 24, 2016 Date de l'audience Appeal heard at Montréal, Quebec Appel entendu à Date of decision November 29, 2016 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Ronald Schacter Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION I. INTRODUCTION [1] XXXX XXXX, the appellant, is a citizen of Burundi who is appealing against the decision of the Refugee Protection Division (RPD). She submits that the RPD erred by overlooking the evidence about her place of residence in XXXX, a commune that is perceived as supporting the opposition in Burundi. She also states that new evidence establishes that Tutsi women are now being targeted and that she therefore fears being persecuted as a Tutsi woman who has lived in the commune of XXXX. II. DETERMINATION OF THE APPEAL [2] Pursuant to section 111 of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) allows the appeal, sets aside the RPD determination and substitutes the determination that, in its opinion, should have been made, namely that XXXX XXXX is a "Convention refugee" under section 96 of the IRPA. III. BACKGROUND A. Summary of alleged facts [3] In her Basis of Claim Form (BOC Form), the appellant states that she was in Canada when the tensions increased in her country the night before the highly disputed election, but that she fears that, if she were to return to Burundi, she would be targeted by the XXXX militia, who have killed young men who did not go to vote and who raped young girls. She also states that her neighbourhood of XXXX is targeted by those in the government camp, that most youths have fled to neighbouring countries for fear of reprisals and that the members of her own family are trying to figure out how to leave the country.1 [4] In addition to her BOC Form, the appellant, then known as the claimant, submitted other documents into evidence before the RPD.2 B. Refugee Protection Division decision [5] The hearing before the RPD was held on October 20, 2015, and the decision rejecting the refugee protection claim was rendered on December 8, 2015.3 The RPD found that the claimant's testimony contained a large number of contradictions and inconsistencies, and it was of the opinion that the evidence submitted by the claimant was neither credible nor trustworthy.4 C. Grounds of appeal and decision sought [6] In her memorandum, the appellant submits that the RPD erred in its assessment of her risk as a Tutsi woman and that it ignored the evidence establishing that her place of residence is XXXX, a commune that is perceived in Burundi as supporting the opposition.5 She also submits that new evidence establishes her fear of being persecuted as a Tutsi woman in the neighbourhood of XXXX in Burundi.6 [7] In her memorandum, the appellant is asking the RAD to allow the appeal and grant her refugee status or refer the matter to a differently constituted RPD panel.7 IV. ADMISSIBILITY OF DOCUMENT PRESENTED ON APPEAL A. The appellant filed documents on appeal [8] In her appeal record, the appellant included a sworn statement that she signed on January 22, 2016,8 and news articles along with a report of the UN High Commissioner for Human Rights published after the RPD had rendered its decision.9 B. Test for admissibility [9] Subsection 110(4) of the IRPA provides that the person who is the subject of the appeal may present to the RAD only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. It should be noted that the time limit referred to in subsection 110(4) refers to the rejection of the appellant's claim for refugee protection as the time limit, not the hearing before the RPD. After the hearing before the RPD, but before a decision takes effect, a party wishing to provide a document as evidence may make an application to that effect.10 [10] In a much-anticipated decision, the Federal Court of Appeal finds that the explicit conditions set out in subsection 110(4) of the IRPA are inescapable, must be met, and leave no room for discretion on the part of the RAD.11 It also finds that the criteria set out in case law with respect to the credibility and relevance of evidence arise implicitly from the wording of the subsection in question.12 In short, there is clear legislative intention to not authorize any new evidence on appeal before the RAD other than in very specific and carefully defined circumstances, as the role of the RAD is not to provide the opportunity to complete a deficient record submitted before the RPD, but to allow for errors of fact, errors in law or mixed errors of fact and law to be corrected.13 [11] Lastly, the Refugee Appeal Division Rules state that the appeal record must contain, among other things, a written statement indicating whether the appellant is relying on any evidence referred to in subsection 110(4) of the IRPA, as well as a memorandum that includes full and detailed submissions regarding how that evidence meets the requirements of that subsection and how it relates to the appellant.14 C. Refugee Appeal Division decision on the admissibility of the documents in question (a) Sworn statement [12] This sworn statement is dated January 22, 2016. Here are the parts I consider most important: 3. On or about XXXX XXXX XXXX 2015 I received a phone call from a friend, XXXX XXXX, in Burundi informing me that my parents were in the process of leaving Burundi for Rwanda. She was our neighbour in the area of XXXX in XXXX where I lived with my parents before coming to Canada. 4. The same friend informed me by telephone in the beginning of XXXX, 2016 that my parents had recently arrived in Rwanda. I requested proof from Ms XXXX during this conversation of their arrival in Rwanda. She advised me then that she would arrange with a contact whom she had in Rwanda to send me copies of their passports. I subsequently received scanned copies of their passports, attached hereto as Exhibit "A". 5. She also advised me during this conversation that my parents left Burundi because of the increasing insecurity in our neighbourhood and that she also was planning to leave for this reason.15 [13] In her memorandum, the appellant submits that the statement is admissible given that it was made after the RPD rendered its decision.16 [14] In my view, it is not sufficient for a document to be dated after the date of the RPD decision to conclude that it is in fact new evidence. The facts in the document must also have taken place after the date of the RPD decision. The appellant's sworn statement refers to facts that did actually occur after the date of the RPD decision. I am also of the opinion that those facts are relevant to the appellant's alleged fear as a Tutsi woman who has lived in a neighbourhood in XXXX. Finally, I am of the opinion that, at this stage of the proceedings, the facts are credible or trustworthy. [15] Consequently, in light of the wording of subsection 110(4) of the IRPA and the relevant case law, I am of the opinion that the sworn statement is admissible in this appeal. It is listed as A-1. (b) Newspaper articles [16] These newspaper articles were all published after the RPD rendered its decision.17 The articles refer to facts that took place after the date of the RPD decision, showing that the situation is worsening, particularly in terms of rapes committed during an attack against political opponents. I am of the opinion that those facts are relevant to the appellant's alleged fear as a Tutsi woman who has lived in a neighbourhood in XXXX. Finally, I am of the opinion that, at this stage of the proceedings, the facts are credible or trustworthy. [17] Consequently, in light of the wording of subsection 110(4) of the IRPA and the relevant case law, I am of the opinion that these newspaper articles are admissible in this appeal. They are listed as A-2. (c) Report of the UN High Commissioner for Human Rights [18] This report was published after the RPD rendered its decision.18 The report refers to facts that took place after the date of the RPD decision, showing that the situation is worsening, particularly with respect to the sexual violence committed by members of the security forces and to an increase in enforced disappearances and torture. I am of the opinion that those facts are relevant to the appellant's alleged fear as a Tutsi woman who has lived in a neighbourhood in XXXX. Finally, I am of the opinion that, at this stage of the proceedings, the facts are credible or trustworthy. [19] Consequently, in light of the wording of subsection 110(4) of the IRPA and the relevant case law, I am of the opinion that this report is admissible in this appeal. It is listed as A-3. D. Latest version of the National Documentation Package on Burundi [20] In this case, I am of the opinion that it is important to know the how the situation has changed in Burundi. Consequently, I asked that the most recent version of the National Documentation Package on Burundi be disclosed19 and that it be analyzed in the context of this appeal. It is listed as SAR-1. V. HOLDING A HEARING BEFORE THE REFUGEE APPEAL DIVISION A. The appellant requested a hearing before the Refugee Appeal Division [21] In her memorandum, the appellant is requesting a hearing in order to analyze the evidence and how it relates to her fear of being persecuted if she were to return to Burundi, should the RAD determine that it cannot allow her appeal and grant her refugee status by simply analyzing the record.20 B. Test under subsection 110(6) [22] Pursuant to subsection 110(6) of the IRPA, when evidence presented on appeal is found to be admissible, it should be determined whether it raises a serious issue with respect to the credibility of the person who is the subject of the appeal, whether it is central to the decision with respect to the refugee protection claim, and whether it would justify allowing or rejecting the refugee protection claim. If the answer is yes, the RAD may then hold a hearing. C. Refugee Appeal Division decision on whether to hold a hearing [23] Whether or not the appellant requests that a hearing be held, the RAD bears the burden of determining whether or not the criteria set out in subsection 110(6) of the IRPA have been met.21 [24] One of the determinative factors in this regard is whether evidence presented on appeal has been found to be admissible.22 In this case, I find that the documents presented by the appellant on appeal are admissible according to the test in subsection 110(4) of the IRPA and the case law. In my view, these documents raise an issue with respect to the appellant's credibility, they are central to the decision, and they could justify allowing the refugee protection claim. Consequently, I find it useful and necessary to hold a hearing. [25] On October 25, 2016, the appellant was notified that a hearing would be held on November 24, 2016, to address the following issues: i) Is the information in the sworn statement (A-1) reliable or credible? ii) What is the impact of the information in the documentary evidence (A-2, A-3 and SAR-1) on the appellant's fear of returning to live in her country? iii) What is the impact of the information in the documentary evidence (A-2, A-3 and SAR-1) on the internal flight alternative (IFA), if the appellant were to return to live in her country? iv) Any other issue raised by the appellant's statements at that hearing.23 VI. APPROACH TO BE TAKEN IN THIS APPEAL A. The appellant's position [26] In her memorandum, the appellant submits that the RAD must not minimize the weight to be attributed to new evidence by relying on the deference owed to the RPD's assessment of the evidence. She also submits that the RAD must, rather, conduct an independent assessment of all the evidence, including the new evidence.24 B. A brief summary of the Federal Court of Appeal decision in Huruglica [27] Following an exhaustive analysis of the legislative history and various arguments used to date, in a recent, long-awaited decision, the Federal Court of Appeal held that the role of the RAD is to intervene when the RPD has erred in law, in fact or in fact and law.25 It also states that an appeal before the RAD is not a true de novo proceeding.26 Moreover, it clearly specifies the approach to be taken by the RAD: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable.27 C. An independent assessment to correct the errors identified by the appellant [28] Based on the Federal Court of Appeal decision, it is clear that I must fully exercise the role of the RAD, that is, to correct any error that, according to the appellant, might have been made by the RPD and to render the determination that should have been made or that must be made in light of the most recent evidence on the record.28 Since a hearing was held before the RAD, a hearing during which I heard oral evidence from the appellant, I am clearly not at a disadvantage compared with the RPD in terms of the issues addressed. VII. ANALYSIS OF THE MERITS OF THE APPEAL [29] Having conducted an independent assessment of the record and having considered the new evidence that I found to be admissible on appeal and the testimony I heard during the RAD hearing, I am of the opinion that the appellant has established a well-founded fear of being persecuted if she were to return to live in Burundi. Here is why. A. Oral testimony before the Refugee Appeal Division [30] The case law establishes that RPD members must consider Guideline 429 in appropriate cases. It is incumbent on RPD members to exhibit the knowledge required, and to apply it in an understanding and sensitive manner when deciding issues of violence against women.30 Although the RPD, like the RAD, must be particularly sensitive to the difficulty that certain women who are victims of or who fear becoming victims of violence have when giving testimony, Guideline 4 is not intended to serve as a cure for all deficiencies in the refugee protection claim or in the documents submitted in evidence,31 and it does not oblige Immigration and Refugee Board of Canada decision-makers to overlook inconsistent evidence.32 [31] Although refugee protection claimants must establish their case on a balance of probabilities, they do not have to establish that it is more likely than not that they would be persecuted. In other words, refugee protection claimants do not need to show that they have suffered or will suffer persecution. In fact, based on my understanding of the case law, what the evidence must establish is that the refugee protection claimant has a well-founded fear of persecution on one of the grounds set out in the IRPA.33 Moreover, in order to conclude that there is a reasonable fear of persecution or, in other words, a reasonable chance or serious possibility of persecution, there need not be more than a 50% chance (namely, a probability), but there must be a more than minimal possibility,34 given that there is no intermediate ground between these two limits.35 [32] Persecution is generally defined as the serious interference with a basic human right,36 and the word "persecute" means to harass or afflict with repeated acts of cruelty or annoyance; to afflict persistently.37 While it is true that the dividing line between persecution and discrimination or harassment is difficult to establish, the case law shows that discrimination will only amount to persecution when it is serious or systematic enough to be characterized as persecution.38 Relying on two decisions of the Supreme Court of Canada, Justice Bédard states that before concluding that persecution exists, it is necessary to consider whether a basic right has been violated and then verify whether the violation was repetitive or systematic.39 [33] A subjective fear of persecution is based on the assessment of the person's credibility while an objective fear is usually established by documentary evidence regarding the country conditions.40 [34] To meet the burden of establishing that they satisfy the definition of refugee, refugee protection claimants must establish, on a balance of probabilities, that they have a well-founded subjective fear of persecution. A subjective fear of persecution is based on the assessment of the person's credibility while an objective fear is usually established by documentary evidence regarding the country conditions.41 [35] During the hearing before the RAD on November 24, 2016, I heard the appellant's oral testimony. I had no reason to doubt her credibility when she stated that she fears returning to live in Burundi, when with the help of one of their daughters, one of the appellant's sisters, her parents left the country to take refuge in Rwanda in XXXX 2016, for health and safety reasons. In this context, the appellant testified that she would have no resources or family in Burundi, that she could not find work there or a doctor with the skills needed to care for her, and that, being a woman who could be identified as belonging to the Tutsi ethnic group and who is from a neighbourhood where attacks targeted individuals who were or were deemed to be part of the opposition, she, too, fears being targeted by the militia or the police, who attack anyone they identify as being part of the opposition, and possibly being raped. In my opinion, this testimony leads me to find that the appellant has established her subjective fear of persecution, if she were to return to live in Burundi. B. The appellant's fear of persecution in light of the documentary evidence [36] In this case, I find that the documentary evidence establishes the appellant's objective fear. [37] The documents in the record include the analysis of the International Crisis Group, dated May 29, 2015. The following is an excerpt from that analysis: Despite the failed coup attempt on 13 May, popular mobilisation against outgoing President Pierre Nkurunziza's third term has not abated, and confrontation between the government and the "Halte au troisième mandat" (Stop the Third Mandate) street movement is intensifying. Over 90,000 Burundians have fled and a cholera outbreak has been declared in the most populous place of refuge in western Tanzania. As international pressure on the president continues to fall on deaf ears and the government reiterates its intent to hold municipal and legislative polls on 5 June, and the presidential election on 26 June, all elements of an open conflict have fallen into place.... The week following the attempted coup saw the government's radicalisation and attempted arrests of journalists and politicians. Protesters responded to the "Halte au troisième mandat" movement's call for a resumption of protests in Bujumbura on 18 May with fervour. Diplomatic initiatives meanwhile have not yielded any progress. The dialogue between the government and the opposition established by the UN special representative, which was suspended a few days after the assassination of opposition figure Zedi Feruzi in the Ngagara neighbourhood of Bujumbura on 23 May, remains fragile. The opposition has just announced that it will not participate in the elections.42 [38] This same analysis indicates that the rise in tensions has been accompanied by ethnically charged rhetoric framing the "Halte au troisième mandat" movement as a Tutsi construction. It also indicates that these ethnic narratives explicitly refer to the civil war era and that it risks stirring up ethnic antagonisms the Arusha accords had managed to calm.43 [39] The report of the U.S. Department of State and the Report of the Secretary-General on the United Nations Office in Burundi, in January and June 2015, indicate that before the presidential, legislative and communal elections, the political situation was tense, with government disregard for the freedoms of speech and association, a judicial system that lacked independence, rampant corruption, and the Imbonerakure, the youth wing of Burundi's ruling CNDD-FDD, committing acts of political violence.44 It was all part of a specific historical context, namely, the fact that the civil war that followed the assassination in 1993 of the first democratically elected president of Burundi, Melchior Ndadaye, ravaged the country for over a decade, killing some 300,000 Burundians.45 [40] The documents on the record include an Amnesty International analysis that indicates that the Service National de Renseignement (SNR) [national intelligence service], commonly referred to as the "Documentation," is one of the country's most feared institutions and that the institution used local members of the Imbonerakure, the youth wing of the Conseil national pour la défense de la démocratie - Forces pour la défense de la démocratie (CNDD-FDD) [National Council for the Defence of Democracy - Forces for the Defence of Democracy], to identify the houses of demonstrators living in the same neighbourhoods and arrest them. This same analysis reports several cases of torture and abuse by SNR members, with the victims having been arrested previously by people in civilian clothes, including the Imbonerakure, or by police officers, and being accused of participating in a rebellion or distributing weapons.46 [41] The documentary evidence also indicates that, in the context of this crisis, which does not yet seem to be completely over, the authorities treated largely peaceful demonstrators and entire residential areas as part of an insurrection. In XXXX, the appellant's neighbourhood, not only were the XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, but a XXXX XXXX XXXX XXXX XXXX XXXX was also killed.47 [42] In a report published in February 2016, Human Rights Watch indicates that, while dead bodies on the streets of Bujumbura were a daily occurrence in the second half of 2015, many abuses are now taking place under the radar, with security forces secretly taking people away and refusing to account for them. According to one of their directors, the government forces and the ruling party are treating suspected opponents with extreme cruelty and viciousness. The report also indicates that Bujumbura residents stated that they often saw Imbonerakure wearing police or military uniforms, carrying weapons and operating side by side with the police. Police and the intelligence services frequently round up groups of mostly young men and arrest them, accusing them of being part of the "rebellion." The sweeping and arbitrary nature of these arrests means that any young man in neighbourhoods such as Musaga, Nyakabiga, Cibitoke, Mutakura or Ngagara-where there were widespread demonstrations against Pierre Nkurunziza's third term in 2015-could be picked up, regardless of whether or not he has committed an offence, not to mention being tortured, killed or taken to unknown destinations.48 [43] The following is an analysis of the ethnic aspect of the crisis in the Human Rights Watch report: In contrast with Burundi's armed conflicts in previous decades, which were largely fought along ethnic lines, the current tensions in Burundi are primarily political, with the government targeting anyone suspected of opposing it. Victims of abuses include members of the Hutu and Tutsi ethnic groups. However, in some cases, members of the security forces, intelligence services, or Imbonerakure have hurled ethnic insults at Tutsi as they arrested, or ill-treated them. While there are many Tutsi in the government, many of the powerful positions in the ruling party and the security forces are held by Hutu. The government seeks to portray the opposition as predominantly Tutsi, even though it includes many Hutu.49 [44] Although she belongs to the Tutsi ethnic group, the appellant is obviously not a young man who expressed opposition to the president's third term during demonstrations in Burundi. [45] In any event, the information included in the documentary evidence indicates that this crisis also includes cases of sexual violence. As noted by counsel for the appellant in her submissions before the RAD, the United Nations High Commissioner for Human Rights documented 13 cases of sexual violence against women, which began during the search-and-arrest operations that took place after the December 2015 events in the neighbourhoods perceived as supportive of the opposition. The pattern was similar in all cases: the women were separated from their families and then raped-in some cases gang-raped.50 When Burundi has had political crises in the past (1965, 1969, 1972, 1988, 1991, 1993-2003), sexual violence was widespread and systematic.51 [46] In light of this situation, I find that the appellant has established that she objectively fears persecution, given that she is a woman who belongs to the Tutsi ethnic group and who lived in the XXXX neighbourhood in XXXX, Burundi, a neighbourhood perceived by the authorities to include several people who demonstrated their opposition to the president's third term. C. State protection and internal flight alternative [47] Given the serious human rights violations in Burundi, I am of the opinion that I do not need to provide a lengthy analysis of the presumption that the state is willing and able to adequately protect its citizens. In my opinion, the documentary evidence clearly establishes that this presumption is now reversed in Burundi. Not only were the 2015 elections in Burundi deeply flawed, they were also not free, fair, transparent, or credible. Furthermore, the SRN and the police tended to be influenced directly by, and responsive to, the CNDD-FDD. These two institutions responded with disproportionate use of force to peaceful protests against the president's bid for a third term. Government agents shut all independent media outlets in May 2015, and only a few outlets reopened by year's end. The principal human rights abuses included extrajudicial killings, arbitrary and politicized detention, and widespread government disregard for the freedoms of speech, press and media, assembly, and association. Furthermore, the judicial system was highly politicized and lacked independence from the executive branch. Lastly, the reluctance of police and public prosecutors to investigate and prosecute, and of judges to hear, cases of government corruption and human rights abuse in a timely manner resulted in widespread impunity for government and CNDD-FDD officials.52 [48] This situation easily explains that, in January 2016, 645,000 Burundians had fled their country and 14,800 were internally displaced inside their country.53 [49] In this context, I find that an IFA is not an option, since the state is participating in that which amounts to persecution.54 D. Refugee Protection Division decision [50] In this context, I find it unnecessary to conduct a comprehensive analysis of the reasons for the decision of the RPD. Indeed, with the hearing on November 24, 2016, I ensured that I covered all the facts that, according to the appellant's allegations, arose after the decision was rendered, and that mean that she now has a well-founded fear of persecution if she were to return to live in Burundi. [51] That being said, I would like to note that, during the RPD hearing to which I listened attentively,55 the member sometimes seemed impatient because the claimant had not managed to correctly answer some questions, including those on some forms and those asked by the member himself. With all due respect, if the member had taken the time to become better informed by reading all the documentary evidence available to him, I believe that he would have better understood the statements made by the claimant and would have been more lenient about certain gaps in her written and oral testimony. [52] In any event, I find that the RPD drew conclusions about the claimant's credibility that were not justified and, above all, failed to consider important elements included in the documentary evidence before it. It therefore made errors in its analysis of the facts. VIII. CONCLUSION [53] For these reasons, I set aside the determination of the RPD and substitute the determination that, in my opinion, should have been made in light of the most recent evidence on the record, namely, that XXXX XXXX is a "Convention refugee" under section 96 of the IRPA. [54] The appeal is allowed. Alain Bissonnette Me Alain Bissonnette November 29, 2016 Date IRB translation Original language: French 1 The Basis of Claim Form is reproduced at pages 10 to 21 of the Refugee Protection Division (RPD) record. The detailed account is found at pages 20 and 21 of the RPD record. 2 The list of documents is reproduced at pages 146 and 266 of the RPD record. The actual documents are reproduced at pages 147 to 262 and 267 to 289 of the RPD record. 3 RPD reasons and decision, pages 3 to 9 of the RPD record. 4 Idem, paragraph 18, page 8 of the RPD record. 5 Appellant's memorandum, January 25, 2016, paragraphs 8, 9 and 10, page 59 of the appeal record. 6 Idem, paragraphs 11 and 12, pages 60, 61 and 62 of the appeal record. 7 Idem, paragraph 18, page 64 of the appeal record. 8 The sworn statement is reproduced on pages 41 and 42 of the appeal record. 9 These articles are reproduced on pages 46 to 55 of the appeal record. 10 Refugee Protection Division Rules, SOR/2012-256, rule 43. 11 Minister of Citizenship and Immigration v. Parminder Singh, No. A-512-14, de Montigny, Gauthier and Nadon, March 29, 2016; 2016 FCA 96, paragraphs 38 to 51. 12 Idem, paragraphs 34 and 35. 13 Idem, paragraph 54. 14 Refugee Appeal Division Rules, SOR/2012-257, subrule 3(3). 15 The sworn statement is reproduced at pages 41 and 42 of the appeal record. 16 Appellant's memorandum, paragraph 14, page 62 of the appeal record. 17 These articles are reproduced at pages 46 to 53 of the appeal record. 18 This report is reproduced at pages 54 to 55 of the appeal record. 19 Immigration and Refugee Board of Canada (IRB), National Documentation Package on Burundi, May 31, 2016. 20 Appellant's memorandum, paragraph 18, page 64 of the appeal record. 21 Zhuo v. Canada (Minister of Citizenship and Immigration), No. IMM-2693-14, O'Reilly, July 27, 2015; 2015 FC 911, paragraph 11. 22 Parminder Singh, supra, footnote 11, paragraph 51: "...[T]he basic rule is that the RAD 'must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division...' (s. 110(3)). The new evidence must meet the admissibility criteria set out in subsection 110(4), and a new hearing can be held only if the new evidence fulfils the conditions set out in subsection 110(6)." 23 Claude Mousseau, Case Management Officer, Refugee Appeal Division, List of issues for the hearing set for November 24, 2016, at 8:45 a.m., October 25, 2016. 24 Appellant's memorandum, paragraphs 15, 16 and 17, pages 62, 63 and 64 of the appeal record. 25 Minister of Citizenship and Immigration v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93, paragraphs 36 to 103. 26 Idem, paragraph 79. 27 Idem, paragraph 103. 28 Idem, paragraphs 96, 97 and 98. 29 IRB, Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, effective November 13, 1996. The Guideline is available on the IRB website. 30 Aziza Mahamat Nour v. Canada (Minister of Citizenship and Immigration), No. IMM-8278-11, Scott, June 25, 2012; 2012 FC 805, paragraph 37. Higbogun v. Canada (Minister of Citizenship and Immigration), No. IMM-2921-09, Russell, April 23, 2010; 2010 FC 445, paragraphs 55 to 58. 31 Manege v. Canada (Minister of Citizenship and Immigration), No. IMM-4966-13, Kane, April 17, 2014; 2014 FC 374, paragraphs 29 to 32. 32 Kaniz v. Canada (Minister of Citizenship and Immigration), No. IMM-2644-12, O'Reilly, January 25, 2013; 2013 FC 63, paragraph 15. 33 Parampsothy v. Canada (Minister of Citizenship and Immigration), No. IMM-421-12, Mandamin, August 16, 2012; 2012 FC 1000, paragraph 24. See also: Mugadza v. Canada (Minister of Citizenship and Immigration), No. IMM-1324-07, Mandamin, January 30, 2008; 2008 FC 122, paragraphs 20 to 22. 34 Idem. 35 Florea v. Canada (Minister of Citizenship and Immigration), No. IMM-5443-04, Lemieux, November 3, 2005; 2005 FC 1472, paragraphs 21 to 24. Arrinaj v. Canada (Minister of Citizenship and Immigration), No. IMM-224-04, O'Keefe, May 31, 2005; 2005 FC 773, paragraph 43. 36 Sadeghi-Pari v. Canada (Minister of Citizenship and Immigration), Mosley, [2004] A.V.F. No. 316, 2004 FC 282, paragraph 29, as cited by the Honourable Justice Zinn in Warner v. Canada (Minister of Citizenship and Immigration), March 23, 2011, No. IMM-4283-10; 2011 FC 363, paragraph 7. 37 Rajudeen v. Canada (Minister of Employment and Immigration), (1984), 55 NRF 129 (FCA), as cited by the Honourable Justice Zinn in Warner v. Canada (Minister of Citizenship and Immigration), March 23, 2011, No. IMM-4283-10; 2011 FC 363, paragraph 7. 38 Ramirez v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1888, 88 F.T.R. 208, at paragraph 8, as cited by the Honourable Justice Zinn in Warner v. Canada (Minister of Citizenship and Immigration), March 23, 2011, No. IMM-4283-10; 2011 FC 363, paragraph 7. See also the analysis of the Honourable Justice Near on the same issue in Mallampally v. Canada (Minister of Citizenship and Immigration), February 27, 2012, No. IMM-5626-11; 2012 FC 267, paragraphs 22 to 24. 39 Portuondo Vasallo v. Canada (Minister of Citizenship and Immigration), Bédard, May 31, 2012, No. IMM-8526-11; 2012 FC 673, paragraph 15. 40 Alvarez Contreras v. Canada (Minister of Citizenship and Immigration), No. IMM4087-08, Beaudry, April 23, 2009; 2009 FC 398, paragraph 16. 41 Alvarez Contreras v. Canada (Minister of Citizenship and Immigration), No. IMM4087-08, Beaudry, April 23, 2009; 2009 FC 398, paragraph 16. 42 International Crisis Group, Burundi: Peace Sacrificed?, May 29, 2015, pages 176 to 183 of the RPD record, at page 176. 43 Idem, at page 178. 44 IRB, National Documentation Package on Burundi, July 17, 2015, Document 2.1: United States, Department of State, Burundi. Country Reports on Human Rights Practices for 2014, June 25, 2015, not paginated, under Executive Summary. This report does not seem to have been part of the version of the National Documentation Package on Burundi used by the RPD during its hearing on October 20, 2015. In fact, according to the information in the RPD record, the March 31, 2015, version of the package was used. On that matter, see pages 67 to 93 of the RPD record. And Document 2.8: United Nations, Security Council, Report of the Secretary-General on the United Nations Office in Burundi, S/2015/36, January 19, 2015, 30 pages, paragraphs 9 to 18, pages 3 to 6. This document is in the national documentation package used by the RPD. 45 Idem, Document 2.8, paragraph 2, page 1. 46 IRB, National Documentation Package on Burundi, May 31, 2016, Document 10.4: Amnesty International, Burundi: Just Tell Me What To Confess To: Torture by Police and Intelligence Services Since April 2015, AFR 16/2298/2015, August 24, 2015, 15 pages. The claimant submitted the English version of this document into evidence before the RPD, see pages 209 to 222 of the RPD record. 47 Idem, Document 10.5, Amnesty International, Braving Bullets. Excessive Force in Policing Demonstrations in Burundi, AFR 16/2100/2015, 48 pages, at pages 18, 19 and 20. 48 Idem, Document 10.10, Human Rights Watch, Burundi: Abductions, Killings, Spread Fear, February 25, 2016, not paginated. See also Document 2.1: United States, State Department, Burundi. Country Reports on Human Rights Practices for 2015, April 13, 2016, not paginated, subsection 1. Respect for the Integrity of the Person, Including Freedom from: a. Arbitrary or Unlawful Deprivation of Life and g. Use of Excessive Force and Other Abuses in Internal Conflicts. 49 Idem. See also Document 13.6: Research Directorate, IRB, Burundi: Treatment of Tutsis, in particular, young Tutsis, by the authorities; their treatment at the ports of entry (April 2015-November 2015), BDI105363.FE, not paginated. 50 A-3: UN High Commissioner for Human Rights, Alarming new patterns of violations emerging in Burundi: Zeid Ra'ad Al Hussein, January 15, 2016, 3 pages. This report is reproduced at pages 54 to 55 of the appeal record. 51 IRB, National Documentation Package on Burundi, May 31, 2016, Document 5.3: Impunity Watch, La prise en compte des violences basées sur le genre au Burundi : Analyse des perceptions et obstacles [report on gender-based violence in Burundi: analysis of perceptions and obstacles], July 2014, 76 pages, at page 51. 52 Idem, Document 2.1: United States, State Department, Burundi. Country Reports on Human Rights Practices for 2015, April 13, 2016, not paginated, under Executive Summary. 53 Idem, Document 1.6: United Nations. Office for the Coordination of Humanitarian Affairs, Burundi: Humanitarian Snapshot (as of 14 January 2016), January 15, 2016, 1 page. 54 Li v. Canada (Minister of Citizenship and Immigration), Shore, August 20, 2014, No. IMM-6180-13; 2014 FC 811, paragraph 27. 55 Hearing before the RPD on October 20, 2015, 00:01 to 02:19:38. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB4-02904 RAD.28.07 (2015.06.02) Disponible en français RAD File No. / No de dossier de la SAR : MB6-01238 18