MB7-05613

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 : MB7-05613 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person(s) who is(are) the subject(s) of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision October 3, 2018 Date de la décision Panel Me Julie Corry Tribunal Counsel for the person(s) who is(are) the subject of the appeal Me Anne Castagner Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW OF THE APPEAL [1] XXXX XXXX XXXX, a citizen of Burundi, is appealing against a negative decision rendered by the Refugee Protection Division (RPD).1 [2] I am allowing the appeal and am substituting the determination that, in my opinion, should have been made, namely, that the appellant is a "Convention refugee."2 [3] Based on my independent analysis of all the evidence on the record, and for the reasons that follow, my conclusion is that the RPD erred in its assessment of the appellant's credibility with respect to her fear of the authorities in Burundi. I am of the opinion that the appellant has established, on a balance of probabilities, that if she were to return to Burundi, there is a serious possibility that she would be persecuted by reason of her Tutsi ethnicity. ALLEGED FACTS [4] The appellant alleges that she was threatened in Burundi by government agents and by the Imbonerakure because of her imputed political opinion. She was also persecuted because of her ethnic group, specifically as a young Tutsi woman from XXXX, XXXX. She alleges that she was targeted because she fits a certain profile, that of young Tutsis travelling to Rwanda, where they could join rebel forces. [5] The appellant had been studying medicine in Rwanda since October 2014 and she returned to Burundi for her summer vacation in 2016. On August XXXX, 2016, she tried to return to Rwanda by crossing the land border at XXXX XXXX XXXX by bus. A national intelligence service (SNR) officer and some Imbonerakure boarded the bus in order to arrest Tutsis. [6] She was interrogated violently and was released at around 4:00 a.m. She returned home and then went into hiding, first at the home of a family friend, and then with an aunt in XXXX, in the interior of the country. [7] In early September 2016, a man who was obviously Hutu showed up at her parents' house claiming to be a friend. He returned some time later. [8] In XXXX, the census was beginning, which worried the appellant because she is not from that region. On September XXXX, 2016, she told her parents that she wanted to leave Burundi and go to Canada. Two weeks later, her parents told her that she had been admitted to the Université de XXXX XXXX XXXX, in Canada. [9] On December XXXX, 2016, she left Burundi with a Canadian student visa. On December XXXX, 2016, a wanted notice was issued against her. On January 10, 2017, she claimed refugee protection. RPD DECISION [10] The determinative issue in this case is credibility. The RPD did not believe that the appellant was a credible witness with respect to the allegations at the heart of her claim. The RPD noted contradictions, omissions and plausibility issues, and was of the opinion that the appellant's testimony was vague and imprecise. [11] The RPD's non-credibility findings include the following: * The application to the Université de XXXX XXXX XXXX was made before the telephone conversation with her parents on September 16, 2016, which contradicts the appellant's testimony. * The RPD found it implausible that the appellant would cross the border to Rwanda by bus at the XXXX XXXX XXXX border crossing. * The appellant's father's position in the army implies that he was loyal to the government. * The residual risk to the appellant as a young Tutsi woman, and her family's neighbourhood in XXXX: XXXX rather than XXXX. [12] The RPD concluded that there were so many contradictions and inconsistencies with respect to key aspects of the claim for refugee protection that none of the appellant's allegations were credible, and it did not believe her story at all. [13] Consequently, the RPD attached no probative value to the documents the appellant produced because it did not believe the basis for these documents, which included letters of support from a woman who was on the bus on August 21, 2016, from the family friend she stayed with, from the cousin she stayed with in XXXX, and from her father, as well as a wanted notice from the judicial police in XXXX.3 [14] Finally, the RPD concluded that, despite the fact that the appellant is a young Tutsi woman, her family situation is such that she would not face a reasonable chance of persecution on one of the Convention grounds should she return to Burundi. APPELLANT'S ARGUMENTS [15] The appellant argues that the RPD erred in law by failing to consider all the evidence and by systematically rejecting evidence with no explanation. [16] The appellant adds that the RPD made erroneous findings of fact about the appellant's credibility based on conjecture, hypotheses and extrapolated cultural biases. Furthermore, she argues that the negative credibility findings were based on factors that are not material or determinative in the claim. [17] Finally, the appellant argues that the RPD violated the principles of natural justice by failing to question her on points that go to the heart of its negative determination. She adds that it seemed that the member was trying to rationalize her negative impression, which was not supported by the evidence, by the appellant's testimony before the RPD, or by the results of the additional research requested or conducted by the RPD. SCOPE OF THE APPEAL [18] The Refugee Appeal Division (RAD) intervenes when it concludes that the RPD has erred in fact, in law, or in mixed fact and law.4 Accordingly, it must establish whether the RPD's decision is correct.5 [19] With respect to the credibility of the oral evidence, the RAD may show deference to the RPD's analysis when the latter enjoyed a meaningful advantage in making a particular finding.6 If that is the case, the RAD must also explain in what way the RPD enjoyed a meaningful advantage and assess each of its findings on a standard of reasonableness, as set out in the decision in X (Re).7 It then makes an overall credibility finding to determine whether the RPD's assessment is correct. [20] Thus, having carefully considered the RPD's decision, the RAD carries out its own analysis and considers all the evidence on the record8 in light of the appellant's arguments in the memorandum.9 NEW EVIDENCE ON APPEAL AND REQUEST FOR AN ORAL HEARING [21] The appellant is presenting new evidence on appeal and is requesting an oral hearing under subsections 110(4) and 110(6) of the IRPA.10 The evidence is a statement from the appellant's father, written after the RPD's decision. I have numbered it as shown: APP-1: Statement of XXXX XXXX, dated June 5, 2017, with supporting documents. [22] The appellant argues that this evidence was not available earlier and that it was not reasonable for her to submit it sooner because it addresses issues the appellant had not anticipated, such as * the matter of her father's rank in the army, the importance of his responsibilities, whether he could be considered loyal to the government, the fact that he allowed his daughter to travel, and the RPD's assumption regarding her university enrolment.11 Test for admissibility [23] The admissibility of new evidence before the RAD is governed by subsection 110(4) of the IRPA and jurisprudential tests. [24] Subsection 110(4) of the IRPA states 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. [25] In Singh,12 the Federal Court of Appeal insists on a narrow interpretation of subsection 110(4) of the IRPA. It states that the explicit conditions it sets out must be met and leave no room for discretion on the part of the RAD, whose role is not to provide an opportunity to complete a deficient record, but to allow for errors of fact, errors in law, or mixed errors of fact and law to be corrected. However, the Court adds that the RAD always has the freedom to apply the conditions of subsection 110(4) with more or less flexibility depending on the circumstances of the case.13 [26] The Federal Court of Appeal states that, subject to certain adaptations, the implicit admissibility criteria set out in Raza are also applicable. These are credibility, relevance and newness.14 [27] It is well established that the onus is on the appellant to make full and detailed submissions regarding how the new evidence meets the requirements of subsection 110(4) of the IRPA and how it relates to the appellant.15 RAD's decision regarding the admissibility of the new evidence [28] Exhibit APP-1 is a statement signed by the appellant's father in response to the RPD's decision. It is accompanied by excerpts of Burundian legislation, news articles confirming certain facts in his statement, and a decree from the office of the President of Burundi. He explains aspects of the appellant's story and, in particular, facts and observations about himself, both concerning his military career and the choices he has made for his daughter, the appellant. [29] It is clear that the statement was prepared after the claim was rejected, but it is also clear that it talks about circumstances that existed before the claim was rejected. That being said, these are factors and details that the appellant could not reasonably have been expected in the circumstances to have presented at the time of the rejection. [30] The appellant argues that she did not present this evidence at the time of the rejection because she could not reasonably have been expected to present it with her initial claim. However, it became necessary, following the member's errors in the initial claim, to produce this new evidence for the record. [31] The matter of her father's rank in the army, the importance of his responsibilities, whether he could be considered loyal to the government, the fact that he allowed his daughter to travel to Rwanda on public transportation, and the precise timing of the university application were all raised at the hearing and in the decision. In my opinion, although the information was reasonably available, the appellant could not reasonably have been expected to have presented this evidence in the circumstances of her claim for refugee protection. I am also of the opinion that the source of the document (the appellant's father) and the format of the statement are credible, as are the documents provided in support of the statement. The content is indeed relevant to the appellant's claim for refugee protection and addresses important aspects of her story. Those aspects are also new, because they were raised by the RPD during the hearing, but mainly in its decision. For these reasons, I will accept Exhibit APP-1 as new evidence. Request for an oral hearing [32] The appellant requested an oral hearing. Under subsection 110(6) of the IRPA, when evidence submitted on appeal is deemed admissible, it must 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 hold a hearing. [33] The onus is on the RAD to determine whether or not the criteria in subsection 110(6) of the IRPA have been met.16 [34] With respect to Exhibit APP-1, two of the determining criteria in this respect are whether the new evidence is central to the decision with respect to the refugee protection claim and whether it would justify either allowing or rejecting the refugee protection claim.17 In this case, I am of the opinion that, although the information in Exhibit APP-1 is admissible, it is not central to my decision and would not in itself justify allowing or rejecting the refugee protection claim. In other words, my decision does not depend on the content of this evidence. Consequently, there is no cause to hold a hearing before the RAD. ANALYSIS Did the RPD err in attaching no probative value to the documents produced by the appellant because it did not believe the basis for those documents?18 [35] Since the RPD did not find the appellant's allegations credible, it attached no probative value to the letters of support she produced to corroborate her allegations, namely, a notarized statement, two statements not made under oath but accompanied by identity documents, and a wanted notice from the police in XXXX.19 [36] In her memorandum of appeal, the appellant states that it is difficult to understand why all this evidence was discarded, because it was produced specifically to corroborate her story. The RPD did not analyze this evidence or explain why it was not trustworthy, except to state that it corroborates a story that it did not believe. [37] The appellant quotes Federal Court case law regarding the principle that the grounds for setting aside evidence, or finding it not credible, must be clearly explained and must make specific and clear reference to the evidence. [38] I agree with the appellant that the RPD must give reasons for its conclusions and not simply exclude documents because it does not believe the appellant's story. In my opinion, this is circular reasoning and is incorrect. The RPD must analyze all of the evidence, including the documentary evidence, before reaching a finding of non-credibility, not make non-credibility findings first and then reject the rest of the evidence on the basis of those findings: The Board cannot find the applicant's testimony not credible without consideration of relevant corroborative evidence, and then subsequently reject the supporting evidence because of the credibility finding.20 [39] I am of the opinion that the RPD's decision to attach no probative value to the appellant's documentary evidence is erroneous and incorrect. Did the RPD err in its assessment of the appellant's credibility? A) Application to the Université de XXXX XXXX XXXX21 [40] The appellant alleges that, in a telephone conversation with her parents on September 16, 2016, she told them she wanted to leave Burundi for Canada because she feared for her life. The appellant testified that, after that conversation, her parents submitted an application to the Université de XXXX XXXX XXXX. On September 30, 2016, they contacted her to tell her that the university had accepted her application. [41] The RPD asked for the university application to be submitted in evidence and noted that the application had been made on September 6, 2016, before the appellant spoke with her parents. The appellant had exchanged a series of emails with her father, which she also submitted to the RPD, in which her father explained that he did not want to tell her that he had applied to the university because the final decision had not yet been made and he had stopped the process when he realized that it was necessary to send documents and money to the university. Only after he spoke to the appellant on September 16, 2016, and she told him she wanted to leave Burundi, did he apparently resume the process. [42] The RPD did not accept this explanation and found the appellant not credible, in that the application to the Université de XXXX XXXX XXXX was made by her parents in a situation where she was in hiding in XXXX because she was suspected of joining the rebels when she tried to cross the border at XXXX XXXX XXXX. [43] In her memorandum of appeal, the appellant argues that her evidence and her explanations respond perfectly to the RPD's questions and that, in any event, it is clear that the application was made in the weeks following her detention and as a reaction to the alleged events. This corroborates a central point in her claim for refugee protection. She adds that a difference of a few days should not make a difference to her credibility. Her parents submitted the application, she did not; all she can testify to is that she asked her parents to do it on September 16. [44] The appellant argues that the actual date of the application is a secondary factor, not a central one. What is important is that the application was made after she was detained by the authorities. She submits that rejecting a claim on the basis of secondary factors is a reviewable error. [45] She argues that the RPD violated the principles of natural justice by failing to question her on points that are central to its negative determination, and that it would have been difficult for her to testify as to her father's motivations, even if she had been asked to do so. [46] The appellant has presented new evidence that I have accepted (APP-1), namely, a statement from her father addressing this issue and explaining why he made certain choices for his daughter with respect to the university application. [47] I do not agree with the RPD that the appellant was not credible with respect to this part of her story. In my opinion, the fact that it is not clear when the application was made in relation to when the appellant spoke to her parents is secondary and incidental to the fact that the application was made after she was detained and assaulted. The appellant did not prepare the university application herself, and it is understandable that she would not able to testify as to the exact dates or to her parents' plans or the specific steps they took. [48] The appellant provided a logical and valid explanation, with supporting evidence from her father and from the university's website, which clarifies and corroborates her parents' actions and the dates and circumstances of the application. In addition, I have listened to the recording of the hearing, and I note that the appellant answered the RPD's questions spontaneously, adding details and background in a genuine and credible manner. [49] The RPD's finding that the appellant is not credible regarding the date and the circumstances of the application to the Université de XXXX XXXX XXXX is erroneous and incorrect. B) Implausibility of the bus trip to Rwanda22 [50] The appellant testified that, after her summer vacation in 2016, she tried to return to Rwanda to continue her studies. She travelled by public transportation (by bus) on August XXXX, 2016. [51] The appellant alleges that the bus was stopped and checked at the border and that the Tutsis were taken off the bus. She was bringing supplies with her, as usual, and the authorities and the Imbonerakure suspected her of going to join the rebels. She was reminded that her father was in the military, that he was an ex-FAB, and that she came from the XXXX area, which led them to believe that she had ties to the rebels. [52] The appellant was physically abused during an interrogation: her hair was pulled, her head was hit on the table and she was slapped. She managed to escape from detention by bribing a guard. When she returned home, her parents immediately took steps to hide her in a safe place. [53] The RPD asked the appellant why she had tried to cross the border. She testified that the situation was quieter and that the major demonstrations of December 2015 had not happened again during the summer. Her studies were important and she could not put her life on hold. [54] The RPD was of the opinion that it was implausible for the appellant to have gone by bus to the border crossing at XXXX XXXX XXXX in order to travel to Rwanda, especially because, considering his position in the military, her father should have anticipated the danger, given the situation in the country. The RPD came to this conclusion after analyzing the documentary evidence in the National Documentation Package (NDP) on Burundi and considering the situation in the country in 2016. It concluded that it could not believe, on a balance of probabilities and considering the situation in Burundi at that time, that the appellant's father, a high-ranking member of the army, a state organization also criticized for its abuses,23 would allow his only daughter to travel by public transportation to the critical border with Rwanda with no protection whatsoever. [55] The RPD also criticized the appellant for not specifying in her Basis of Claim Form (BOC Form) that her head was hit against the table more than five times. It found that this omission further undermined her credibility about her detention at the border. [56] During the hearing, the appellant explained that it was perhaps a matter of detail: if they pulled her hair, it was clear that the next stage would be to hit her head on the table. The RPD considered this explanation vague and did not accept it. [57] Finally, the RPD concluded that, on a balance of probabilities, the appellant did not travel alone by bus to Rwanda, where she was seized and detained by the SNR and the Imbonerakure. [58] In her memorandum of appeal, the appellant submits that the evidence shows that this was not her first time travelling between Burundi and Rwanda because she had a visa and was studying there. She travelled back and forth and had never had problems before; neither did her brother, who also used to travel between the two countries. In addition, she submitted evidence in the form of a sworn statement from a woman who was on the bus on August XXXX, 2016, who corroborated a number of details of her account. There was no valid reason to reject this independent evidence or to have doubts about the trip. [59] In addition, the appellant argues that the RPD used its own conjectures and hypotheses as its basis, rather than the evidence, and did not consider the objective situation in Burundi as described by the appellant, who has lived there her entire life. [60] She quotes the IRB's guidelines and Federal Court case law to state that decision-makers must not base decisions on their own hypotheses and that findings of fact cannot be based on purely conjectural or theoretical evidence. [61] She argues once more that the RPD violated the principles of natural justice by failing to question her on points that are central to its negative determination and that it would have been difficult for her to testify about her father's motivations, even if she had been asked to do so. [62] The appellant has submitted new evidence that I have accepted (APP-1), namely, a statement from her father addressing this issue and explaining the choices he made for his daughter. [63] Finally, once more quoting the case law and the established doctrine, the appellant submits that the RPD must proceed with caution in rendering a decision based on a lack of plausibility. Only when the facts are so far outside the realm of what could reasonably be expected can decision-makers reasonably find that the event in question could not have happened. She argues that the evidence must not be distorted in order to justify the RPD's hypotheses, and that the RPD extrapolated on the basis of cultural biases. The RPD used cultural generalizations in order to support its finding of implausibility. [64] As for her failure to mention that her head had been banged on the table five times during the interrogation, the appellant submits that she had mentioned being mistreated, and that she was slapped and had her hair pulled, and that should be enough. She states that, during the hearing, the RPD asked for a lot more details on this point and went into great detail about the violence that took place. [65] She states that the RPD showed no sensitivity and no regard for the difficulty of reliving events of that kind. The omission was not significant enough to conclude that the event did not take place. [66] The appellant quotes case law to state that the BOC Form is intended to be a brief recitation of the claimant's case, not a documentation of the entire case. The discrepancies relied on by the RPD must be real, the RPD must not display a zeal to find instances of contradiction in the testimony, and it should not be over-vigilant in its microscopic examination of the evidence. [67] I am of the opinion that it is possible that the appellant tried to cross the border in order to resume her studies in August 2016, as she had done on several occasions since beginning her studies. [68] Having listened to the recording of the hearing, I am of the opinion that the appellant's testimony was spontaneous and satisfactory regarding the trip she tried to make to Rwanda by bus on August XXXX, 2016, and regarding the conditions of her interrogation and detention. I have also reviewed the new evidence, and I am of the opinion that the appellant has established, on a balance of probabilities, that her journey was as she described. It is possible that appellant and her family felt able to risk the trip at that time of year, even with the crisis in the country and even if, in hindsight, it was a mistake. In addition, a statement sworn before a notary from a woman on the same bus corroborates a number of details of her account. [69] The RPD's finding of implausibility is incorrect because, in my opinion, the events of August XXXX, 2016, have been established on a balance of probabilities. [70] With respect to the omission in the BOC Form of the fact that her head was hit on the table during her interrogation-how many times her head hit the table, the kind of physical damage that could have left, such as her red eyes, and whether she had black eyes or broken teeth-I have listened to the recording of the hearing and I find the RPD's many questions troubling. I agree with the appellant that the RPD showed a lack of sensitivity in this situation. [71] Having listened to the recording of the hearing, I found the appellant's testimony to be genuine, satisfactory and credible. I agree with the appellant that the omission is a minor one that should not undermine her credibility. The RPD conducted a microscopic analysis of the details of the violence alleged by the appellant. [72] I am of the opinion that the RPD's finding that the omission further undermined the appellant's credibility about her detention at the border is incorrect. C) Appellant's father's status in the army24 [73] The appellant wrote in her account and testified during the hearing that she fears for her family members who are still in Burundi, especially her father. Her father is still in the army, but she thinks he was demoted. She fears for him especially because he is an ex-FAB (the term used to identify Tutsis who were soldiers before the Arusha agreements) and because she is now wanted. [74] During the hearing, the RPD filed documentary evidence showing that the appellant's father was promoted from lieutenant colonel to colonel on XXXX XXXX, 2015,25 XXXX XXXX after the military and police attempted a coup d'état on May 13, 2015. This promotion led the RPD to believe that the appellant's father, although she alleges that he is an ex-FAB, was considered loyal to the government rather than an agitator. [75] The evidence filed by the RPD during the hearing also showed that, on XXXX XXXX XXXX 2016, the appellant's father was appointed senior assistant at headquarters, responsible for logistics.26 The appellant thought her father had been demoted because he had lost the privilege of having a driver, but she did not know any more details. The RPD was of the opinion that her father was still a colonel and that losing the privilege of a driver was not equivalent to a demotion for being an ex-FAB whose daughter is wanted. [76] In her memorandum of appeal, the appellant submits that the RPD's conclusion regarding her father's position in the military, and its negative inferences about the appellant's credibility, are unreasonable and that, furthermore, they are not central to her claim for refugee protection. She adds that, once again, this is extrapolation regarding a secondary point and that rejecting a claim based on secondary factors is a reviewable error. [77] She argues that the RPD violated the principles of natural justice by failing to question her about points that are central to its negative determination and that were not explored during the hearing; that the matter of her father's rank was key, even material, in determining the credibility of her allegations. [78] The appellant has submitted new evidence that I have admitted (APP-1), which addresses her father's situation and clearly explains, with supporting Burundian legislation, his army career. [79] In her memorandum of appeal, the appellant also argues that the issue of her father's military rank is not central and that, for a start, he is not the one claiming refugee protection in this case. She explains that the fact that her father was in the military and an ex-FAB is what played against the appellant at the border checkpoint, not the question of his rank. [80] The details of the appellant's father's situation were not examined during the hearing and few questions were asked on this point. The statement admitted as new evidence (APP-1) explains that his advancement to the rank of colonel was simply an administrative decision, not a political reward, as illustrated by the Loi No 1/21 du 31 décembre 2010 sur les officiers de la Force de Défense Nationale du Burundi [law No. 1/21 of December 31, 2010, on officers of the national defence force of Burundi]. [81] Given this evidence, I disagree with the RPD that the appellant's father's military career suggests that he was considered to be loyal to the government rather than an agitator, and in my opinion, this aspect of the RPD's decision is erroneous and incorrect. [82] In my opinion, the RPD was speculating on a secondary factor of the refugee protection claim. D) Residual risk to the appellant and the neighbourhood where her family lives in XXXX27 [83] The RPD concluded that, although the appellant is a young Tutsi woman, it did not believe that she would face a serious possibility of persecution if she returned to Burundi, mainly because of the neighbourhood where her family lives in XXXX and her father's position in the army. [84] Following the second hearing, the RPD received a document from the IRB's documentation centre indicating that the XXXX XXXX neighbourhood, where the appellant lived, is located in XXXX, not in XXXX, as she claimed, according to the RPD.28 The appellant was asked to provide submissions, which she did through her lawyer by submitting documentary evidence that her house is on the street delimiting XXXX XXXX and XXXX, and that the property is located within the XXXX area. [85] The appellant added that, although some sources attach her neighbourhood to the XXXX area because her street marks the boundary and because of the local geography, she routinely had to indicate the XXXX area in making administrative requests, and her evidence shows this. One example is her certificate of residence, which was examined at the border checkpoint on August XXXX, 2016. Another example is a property tax payment receipt for the family home that identifies the commune of XXXX, the XXXX XXXX neighbourhood and the XXXX area.29 [86] The RPD concluded that the appellant was nevertheless the daughter of a colonel, a member of the general staff, and that XXXX XXXX was home to [translation] "executives, merchants, senior army and police officers, doctors and professors."30 The RPD therefore did not believe that she would be associated with the young Tutsis from XXXX who challenged the president's third term, even if her parents' property is on the tax rolls as being in XXXX.31 [87] The RPD also noted that the appellant did not take part in the demonstrations, which showed that she was politically aligned with her family. [88] Therefore, the RPD concluded that, even though the appellant is a young Tutsi woman, because of her family background, she would not face a reasonable chance of persecution on one of the Convention grounds if she were to return to Burundi. [89] In her memorandum of appeal, the appellant reiterates that she submitted evidence showing that her neighbourhood is indeed part of the XXXX administrative area. [90] In my opinion, the documentary evidence provided by the appellant and in the NDP shows that ex-FAB soldiers, such as her father, are currently targeted by the government in power, and that the appellant's family lives in a neighbourhood in XXXX called the XXXX "area."32 [91] As noted above, Burundi has been in crisis since the president announced his decision to run for a third term in April 2015, but the situation does not seem to have improved. According to the evidence, the current conditions in Burundi show that the mere fact of being a Tutsi gives rise to genuine fear, because Tutsis are targeted along with all opponents of the government in power.33 [92] In my opinion, the RPD erred in failing to give proper consideration to the conditions in the country, in particular to the independent documentary evidence cited above that contradicted its findings; the RPD does not appear to have taken into account all the documentary evidence. In my view, having reviewed the same documentary evidence that was before the RPD, I am of the opinion that there is a serious possibility that the appellant would be persecuted by reason of her ethnicity, and that it is only a question of when and how. [93] In addition, by analyzing the risk prospectively, having reviewed the documentary evidence, I am of the opinion that the critical situation in Burundi has deteriorated since 2015, when the political problems began with the president's third term. [94] In a UN report, the Human Rights Council, having studied the situation, reports on human rights violations and abuses committed in Burundi between April 15, 2015, and June 30, 2016: The experts are gravely concerned about the general trend of ethnically divisive rhetoric by the Government, which may lead to the situation spiralling out of control, including beyond Burundi's borders. This is all the more fatal as the integration of ethnicities was one of the main achievements of the Arusha Agreement.34 [95] I will cite a second, more recent, report, which is one of several in the documentary evidence that are along the same lines: At the same time, the authorities continue to use the political crisis by making it appear like an ethnic crisis. In their public speeches or private meetings, they designate the Tutsi, one of the ethnic minorities in Burundi, as responsible for the current destabilization of the country. The authorities accuse them of trying to take power from the Hutu majority, to which President Nkurunziza and his main advisors and henchmen belong. Hence, the Tutsi remain the primary targets of repression, especially in the FDNB (i.e., Forces de défense nationale du Burundi - the National Defence Force of Burundi). Thus, the repression and genocidal dynamics denounced by the FIDH and ITEKA League in November 2016 continue.35 [96] Justice Shore of the Federal Court rendered a decision on November 7, 2017, in a case whose facts are similar to the ones in this case and concluded that the failure to consider all of the objective evidence on the record was a major lapse on the part of the RPD. [97] He states that the situation for the Tutsi population in Burundi is alarming and that "[a]s a signatory of the United Nations Convention Relating to the Status of Refugees, Canada has an obligation under that Convention to address the peril reported by Tutsis in Burundi."36 [98] That decision is also based on numerous sources in the NDP on Burundi, such as Tab 2.11 cited above and Tab 2.13, and I encourage the reading of that decision, including the text in obiter. With that, I conclude that, in this case, the RPD erred and that its determination that the appellant would not face a risk in Burundi, as a young Tutsi woman, is incorrect. Credibility - RAD's conclusions [99] I agree with the appellant and I am of the opinion that the RPD's final credibility finding is erroneous and incorrect. [100] The RPD erred in stating that the appellant was not credible regarding her application to the Université de XXXX XXXX XXXX and her father's status in the army. In my opinion, those findings are peripheral to the basis of this claim for refugee protection. I have concluded that the RPD also erred in its opinion that it is implausible that the appellant travelled by bus to the XXXX XXXX XXXX border crossing in order to resume her studies in Rwanda. That conclusion is incorrect. [101] With respect to the appellant's residual risk and the area of XXXX where her family lives, I am of the opinion that the RPD was mistaken and that its finding was not correct in the current context in Burundi. I am of the opinion that the RPD erred in not properly considering the conditions in the country that ran counter to its findings, and that it does not seem to have considered the documentary evidence in its entirety. [102] After analyzing all the evidence, I find that the appellant's testimony and explanations are credible. [103] As discussed above, the appellant gave a logical and valid explanation, with supporting evidence from her father and from the university's website, to clarify and corroborate her parents' actions and the dates and circumstances of the application. The appellant did not prepare the university application herself, and it is understandable that she would not be able to testify as to the exact dates or to her parents' plans or the specific steps they took. [104] In my opinion, it is possible that the appellant tried to cross the border to resume her studies in August 2016, as she had done on several occasions since beginning her studies. It is plausible that the appellant and her family felt able to risk the trip at that time of year, even given the crisis in the country and even though, in hindsight, it was a mistake. [105] The details of the appellant's father's situation were not examined at the hearing and few questions were asked on this subject. However, the statement admitted as new evidence (APP-1) explains his advancement in the army. I accept that the decision was an administrative one and not based on his loyalty to the government. [106] In my opinion, the documentary evidence provided by the appellant and in the NDP shows that ex-FAB soldiers, such as her father, are currently being targeted by the government in power and that the appellant's family lives in a neighbourhood of XXXX called the XXXX "area." [107] The documentary evidence on conditions in Burundi cited above shows that the simple fact of being a Tutsi gives rise to genuine fear, as Tutsis are targeted along with all opponents of the government in power. [108] In addition, I have reviewed the personal documents submitted by the appellant, and I note that the facts of her story are corroborated on a number of points, such as dates, places, details and people's names, in all of these documents. I am of the opinion that the documents are trustworthy and I see no reason to reject them.37 State protection and internal flight alternative (IFA) [109] There is a presumption that a state is able to adequately protect its citizens. On this subject, the appellant argued at the RPD hearing that no protection is possible, given that her persecutor is the state of Burundi. [110] A research report, which addressed this subject among others, states the following: However, in practice, the government does not provide any credible protection or support services for Tutsis.38 [111] Given the situation as described above, the serious human rights violations and the increasing tensions between the current government and Burundi's Tutsi population, I am of the opinion that it is not necessary to analyze the presumption of state protection in depth. It is clear to me that the appellant would not receive adequate state protection if she were to return to Burundi; given that the agent of persecution is the state, she has rebutted the presumption of adequate state protection. [112] The issue of an IFA was also mentioned briefly in the appellant's final submissions at the RPD hearing to the effect that no IFA was available, as she had tried to take refuge in the interior of the country, but this had not worked out. [113] In my opinion, no IFA exists because I accept the appellant's assertion that the state and its authorities are the persecutors. Therefore, there is no safe location for the appellant in Burundi. [114] In summary, the appellant has established that, if she were to return to Burundi, the state would not provide adequate protection, she would have no IFA, and she would face more than a serious possibility of persecution by reason of her Tutsi ethnicity, as set out in section 96 of the IRPA. CONCLUSION [115] For the foregoing reasons, having reviewed the RPD's reasons for decision, the RPD record and the appellant's record, and having listened to the recording of the hearing and conducted an independent examination of the record, pursuant to paragraph 111(1)(b) of the IRPA, I am setting aside the RPD's determination that XXXX XXXX XXXX is not a "Convention refugee" or a "person in need of protection" under section 96 and subsection 97(1) of the IRPA and I am substituting the determination that, in my opinion, should have been made.39 [116] The RPD erred and its decision is incorrect. [117] The appellant is a "Convention refugee" under section 96 of the IRPA. [118] The appeal is allowed. Julie Corry Me Julie Corry October 3, 2018 Date IRB translation Original language: French 1 RPD Reasons and Decision, pages 3 to 12 of the RPD record. 2 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, s. 96 and para. 111(1)(b). 3 Exhibits P-6, P-7, P-8, P-10 and P-11, pages 202-208 and 211-214 of the RPD record. 4 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, paragraph 103. 5 Idem. In paragraphs 59, 64, 78 and 103, the Honourable Justice Gauthier explains what she means by the "correctness" standard. 6 X (Re), 2017 CanLII 53034 (CA IRB). The three-member panel analyzed the deference the RAD should show to the RPD with respect to findings regarding the credibility of the oral evidence. See, in particular, paragraphs 72 and 116. 7 Idem. 8 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, paragraph 103. 9 Idem. 10 IRPA, subsections 110(4) and 110(6). 11 Appellant's memorandum, paragraphs 42-49. 12 Minister of Citizenship and Immigration v. Parminder Singh, 2016 FCA 96. 13 Idem, paragraph 64. 14 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. 15 Subparagraph 3(3)(g)(iii) of the RAD Rules. 16 Zhuo v. Canada (Minister of Citizenship and Immigration), No. IMM-2693-14, O'Reilly, July 27, 2015; 2015 FC 911, paragraph 11. 17 Minister of Citizenship and Immigration v. Parminder Singh, No. A-512-14, de Montigny, Gauthier, Nadon, March 29, 2016; 2016 FCA 96, paragraph 51: "...the basic rule is that the RAD 'must proceed without a hearing, on the basis of the record of the proceedings of the [RPD] [...]' (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)." 18 See RPD reasons, paragraphs 42-45, and the appellant's memorandum, paragraphs 13-19. 19 Exhibits P-6, P-7, P-8, P-10 and P-11, pages 202-208 and 211-214 of the RPD record. 20 Tshibola Kabongo v. Canada (Citizenship and Immigration), 2012 FC 313, paragraph 11. 21 See RPD reasons, paragraphs 23-29, and the appellant's memorandum, paragraphs 30-31 and 33. 22 See RPD reasons, paragraphs 31-38, and the appellant's memorandum, paragraphs 20-28 and 34-39. 23 National Documentation Package on Burundi, March 31, 2017, Tab 2.2: Burundi. Amnesty International Report 2016/17: The State of the World's Human Rights. Amnesty International, 2017. 24 See RPD reasons, paragraphs 39-41, and the appellant's memorandum, paragraphs 29, 32-33. 25 Document 8 - Décret du XXXX 2015 portant nomination aux grades supérieurs de certains officiers de la Force nationale de Défense [decree of July 1, 2015, respecting promotions to senior military ranks of the national defence force]. 26 Document 9 - Décret du XXXX 2016 portant nomination de certains cadres du ministère de la Défense nationale et des Anciens Combattants de l'État-Major Général de la Force de Défense nationale [decree of October 17, 2016, respecting the promotion of certain officials of the ministry of national defence and veterans of the general staff of the national defence force]. 27 See RPD reasons, paragraphs 46-51, and the appellant's memorandum, paragraph 14. 28 Response to Information Request, Research Directorate, Immigration and Refugee Board of Canada, Ottawa, April 20, 2017. No. BDI105795.FE. 29 Document 5 - P-24: Property tax statement, ministry of the interior and patriotic training, Republic of Burundi, 2017. 30 See footnote 28. 31 Document 5 - P-24: Property tax statement, ministry of the interior and patriotic training, Republic of Burundi, 2017. 32 NDP on Burundi, March 31, 2017, Tab 2.13, Repression and Genocidal Dynamics in Burundi, International Federation for Human Rights; Ligue burundaise des droits de l'homme [Burundian human rights league], November 2016, p. 11/196. See also the appellant's certificate of residence and Exhibit P-24. 33 NDP on Burundi, March 31, 2017, Tab 2.11, Report on the Independent Investigation on Burundi Carried Out Pursuant to Human Rights Council Resolution S-24/1, A/HRC/33/37, October 26, 2016, p. 14, paragraph 75. 34 NDP on Burundi, April 30, 2018, Tab 2.11, Report of the United Nations Independent Investigation on Burundi Established Pursuant to Human Rights Council Resolution S-24/1, A/HRC/33/37, October 26, 2016, p. 13, paragraph 75. 35 NDP on Burundi, April 30, 2018, Tab 2.7, Burundi on the Brink: Looking Back on Two Years of Terror, International Federation for Human Rights; Ligue burundaise des droits de l'homme [Burundian human rights league], June 2017, p. 9/40. 36 Matore v. M.C.I., 2017 FC 1009, November 7, 2017, paragraph 2. 37 Exhibits P-6, P-7, P-8, P-10 and P-11, pages 202-208 and 211-214 of the RPD record. 38 NDP on Burundi, April 30, 2018, Tab 13.1, The situation of the Tutsi, including the Tutsi elite; their treatment by the authorities and by society (December 2015 - February 2017), BDI105750.FE, March 6, 2017, p. 14. 39 IRPA, s. 96, para. 97(1)(b) and para. 111(1)(b). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB7-05613 17 RAD.25.02 (September 11, 2016) Disponible en français