TB7-17182

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 / Dossier de la SAR : TB7-17182 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision October 24, 2018 Date de la décision Panel Sasha Kiran Cragg-Gore Tribunal Counsel for the person(s) who is(are) the subject of the appeal Michael F. Loebach Barrister and Solicitor 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 INTRODUCTION [1] XXXX XXXX XXXX (the "Principal Appellant"), a citizen of Burundi, appealed a decision of the Refugee Protection Division (RPD), dated August 4, 2017, rejecting her claim for refugee protection. She is requesting to admit new evidence and to hold an oral hearing. DETERMINATION [2] The appeal is allowed. Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) sets aside the determination of the RPD and substitutes its own determination that the appellant is a Convention refugee. BACKGROUND AND OVERVIEW OF APPEAL [3] The Appellant alleges that her parents owned a XXXX store in XXXX. On XXXX XXXX, 2016, she and her cousin XXXX, who had participated in protests against the Third Mandate of the President, were arrested by three officers and two Imbonerakure. She was 17 at the time. They were taken to an empty house where other people were being detained and XXXX was tortured. She was released three days later after her father paid a bribe while XXXX was never found again. [4] She stayed with a family friend, XXXX, until he was able to organize her departure from Burundi in XXXX 2017. In XXXX 2017, she was informed by XXXX that her parents had gone missing. XXXX also asked her to stop communicating with him as he was scared his phone was being tapped. [5] The Appellant's refugee claim was heard by the RPD on August 4, 2017. A negative oral decision was rendered on the same day. Her claim was rejected for credibility reasons. The most significant RPD findings relate to her efforts to contact her parents, her inability to remember certain details about XXXX residence and family and how she managed to get a passport and flee the country if the state authorities or the Imbonerakure were looking for her. The RPD further found that she had not established her XXXX ethnicity and that her profile did not put her at risk in Burundi despite the current political and humanitarian crisis affecting the country. [6] Since the RPD hearing and decision, the Appellant has re-established contact with her parents as well as XXXX. Together with their help, the Appellant has submitted a significant number of letters and affidavits seeking to corroborate the Appellant's allegations which she wishes to admit as new evidence in the context of this appeal. NEW EVIDENCE [7] Subsection 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of the claim, or that was not reasonably available, or that the Appellant could not reasonably have been expected in the circumstances to have presented at the time of the rejection. It is for the Appellant to make full and detailed submissions in the Memorandum about how any proposed new evidence meets the requirements of subsection 110(4) and how that evidence relates to the Appeal. If the factors in subsection 110(4) are not met, the RAD does not have discretion to admit such evidence. [8] If the submitted new evidence meets the requirements of subsection 110(4), the RAD will consider the criteria as set out by the Federal Court of Appeal in Singh.1 The Federal Court of Appeal held that, in addition to the clear language of the statute, the implicit conditions for the admissibility of new evidence include: credibility, relevance and newness. [9] The Appellant is seeking to admit the following documents as new evidence: a. A letter from XXXX XXXX, a Burundian in Canada, dated October 22, 2017 b. A letter from her parents dated August 21, 2017 c. A letter from XXXX XXXX, her paternal aunt, dated October 13, 2017 d. A notarized letter from XXXX XXXX dated August 15, 2017 e. A notarized letter from XXXX XXXX, the owner of a XXXX XXXX XXXX XXXX from her parents' XXXX store, dated August 19, 2017 f. A notarized letter from XXXX XXXX, a neighbour of her family, dated August 24, 2017 g. A letter from XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX) about the disappearance of the Appellant and XXXX dated June 7, 2017 h. A notarized letter from XXXX XXXX dated August 28, 2017 i. A notarized letter from the person who facilitated the Appellant's airport procedures dated August 25, 2017 j. A notarized letter from XXXX XXXX, a family member with whom the Appellant's parents stayed after fleeing their home dated August 30, 2017 k. The envelopes in which the above pieces of evidence were submitted [10] The Appellant is also seeking to admit the following documents as new evidence which were submitted after this appeal was perfected: l. A second letter from the Appellant's parents dated February 14, 2018 m. A psychological report dated March 14, 2018. n. The envelope in which the further parents' letter was sent. [11] For the reasons that follow, none of the documents submitted after this appeal was perfected as listed in the preceding paragraph are admitted while all of the documents listed in paragraph 9 of this decision are admitted except for the letter from XXXX XXXX. [12] Other than the letter from XXXX XXXX, all of the documents listed in paragraph 9 of this decision are from overseas and required the help of the Appellant's parents or XXXX to obtain. The Appellant testified at her hearing that she had lost touch with her parents and that XXXX had asked her not to contact him anymore due to the security risks. The Appellant also testified that the people she contacted back home were unwilling to assist as it could pose a risk to their own safety. It appears, then, that there was no one back home who could have assisted in preparing and sending evidence before the RPD decision was rendered. I accept this explanation and find it reasonable that only the people closest to the Appellant, such as her parents, would have accepted the risk of sending documents critical of the government by mail. [13] The Appellant has been able to re-establish contact with her parents after her RPD hearing. XXXX explains in his letter that he had a change of heart after realizing the impact that cutting off contact had on the Appellant's claim at the RPD. As will be discussed later on, I also find that the Appellant made reasonable efforts to get in touch with her parents before the RPD hearing and decision. I also note that all the documents post-date the RPD decision except for the letter from XXXX which I could not have expected the Appellant to obtain considering she was not in touch with her parents at this time and this letter was in the possession of her parents. Taking all of this into account, I find that all the documents listed in paragraph 9 except for the letter from XXXX XXXX as discussed below are admissible under s. 110(4). They are also all credible, they are new as they respond to RPD findings and relevant. [14] XXXX XXXX is a Burundian living in Canada who declares that he has known the Appellant since April 2017. There is no explanation as to why a letter from him was not made available before this claim was rejected by the RPD in August 2017. For this reason, it is not admitted as new evidence. [15] The documents listed in paragraph 10 of this decision were submitted after the perfection of this appeal. As such, they must satisfy the requirements of RAD Rule 29. I find that they do not. The Appellant's parents describe in their second letter that they have been forced to flee Burundi and are now in Rwanda. There is no indication as to when the events described took place. I am unable to ascertain whether or not the events described took place before or after the perfection of the Appellant's record in December 2017. It is up to the Appellant to demonstrate how the criteria of RAD Rule 29 are met, and I find in this case, the Appellant has not demonstrated that this letter could not have been prepared before the Appellant's record was perfected. [16] The psychological report describes the impacts of the RPD hearing on the Appellant. The RPD hearing was in August 2017. Again, there is no explanation as to why this report was not prepared before this appeal was perfected in December 2017. I find that it does not satisfy the criteria of Rule 29 and is rejected. REQUEST FOR AN ORAL HEARING [17] The Appellant requests an oral hearing. According to the case law, the onus is on the RAD to determine whether the requirements for an oral hearing set out in subsection 110(6) of the IRPA have been met.2 One of the determining factors is that evidence presented on appeal must have been found to be admissible. I have found much of the new evidence admissible. However, considering that the new evidence that I have admitted is credible, reliable, detailed, probative and extensive, I am able to accept it and grant this appeal without needing to examine it in the context of an oral hearing. The request for an oral hearing is therefore denied. ROLE OF THE RAD [18] The recent Federal Court of Appeal decision in Huruglica,3 provides the RAD with guidance in relation to the appropriate standard that must be applied by the RAD to decisions made by the first-level administrative tribunal. The RAD will conduct its own analysis of the record to determine whether the RPD erred. With respect to findings of fact and mixed fact and law the RAD is to review the RPD's decisions applying the correctness standard. The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment of the credibility and weighing of oral testimony heard, which, in particular cases may require a standard of review of reasonableness modified for the RAD.4 [19] I will apply a standard of correctness throughout this decision unless I specify that a standard of reasonableness is appropriate. ANALYSIS Summary of analysis [20] The Appellant lacked evidence to corroborate her allegations and her explanations for failing to provide that evidence were rejected before the RPD. On appeal, the Appellant has provided a significant amount of credible evidence in support of her allegations. I am also persuaded by the Appellant's explanations as to why she was unable to provide this evidence before the rejection of her claim at the RPD. This evidence is sufficient to establish her allegations on a balance of probabilities and these allegations as accepted establish that she would face a serious possibility of persecution if she were to return to Burundi. Lack of corroborative evidence at the RPD [21] The RPD found that the Appellant had not reasonably explained why she lacked corroborative evidence of her efforts to get in touch with her parents and her efforts to obtain other evidence in support of her claim. She declared both in her Basis of Claim (BOC) form and at the hearing that she attempted to reach her parents and XXXX on multiple occasions after being informed that XXXX no longer wanted to communicate with her because of the risk it posed to him. The RPD expected the Appellant to contact Non-Governmental Organizations (NGOs) or the police to assist in locating the whereabouts of her parents and made a negative inference as to her credibility because she had not done so. [22] I do not find it reasonable to expect an 18 year old to reach out to the police or NGOs in Burundi given the political crisis affecting the country. Many NGOs have been closed by the government5 and considering it was the authorities themselves who detained her and her cousin, the state authorities might have also been responsible for her parents' disappearance. Even if some NGOs operate in Burundi, it is reasonable for the Appellant not to have contacted them, given her age and the circumstances. [23] This finding rehabilitates the credibility of the Appellant and has influenced my decision to admit the majority of documents submitted after the RPD decision as new evidence. As will be discussed below, this new evidence goes a long way in establishing the allegations of the Appellant. Arrest on XXXX XXXX 2016 is established [24] The Appellant alleges that she was arrested and kidnapped together with her cousin XXXX on XXXX XXXX, 2016 while working at her parents' XXXX store by five armed men, three of them police officers and two of them Imbonerakure. She alleges that she was detained for 5 days and released after her father paid a bribe but that the whereabouts of XXXX, who had demonstrated against the Third Mandate of the president, are still unknown. The RPD found that the Appellant failed to reasonably explain why she did not have more evidence to corroborate this incident and that her testimony was not credible due to implausibilities surrounding her escape from detention and the country which will be discussed in further detail below. [25] On appeal, the Appellant has submitted letters of support, many of them notarized and with accompanying identity documents, which corroborate this incident and which I have admitted as new evidence. She has a notarized letter from the owner of the XXXX XXXX XXXX XXXX with his identity document describing the arrest in his own words. She has provided a letter from an NGO which describes the arrest, detention and the efforts her parents undertook after they reported her and XXXX missing. She has provided a letter from XXXX mother and a neighbour, both of which describe the arrest and detention in detail. All of these letters are consistent with the Appellant's allegations as described in her BOC and her testimony. As discussed above, I have accepted these documents as new evidence because there was no way to gather them without the help of her parents and XXXX, something that she did not have before the claim was rejected. [26] The Appellant's allegations are also corroborated by the country documentation. Youth who were suspected of demonstrating against the Third Mandate of the President were arrested, kidnapped and killed by the police and the Imbonerakure around the time the Appellant was arrested with her cousin.6 Some of the people targeted were released after paying a bribe.7 [27] The RPD found it strange that the Appellant was released without injuries while her cousin was severely beaten. Considering he was the one who had participated in the demonstrations, I do not find that this fact rises to the level of an implausibility and there is nothing that contradicts the Appellant's testimony either in her other evidence or the country documentation. A review of the country documentation reveals a pattern of arbitrary and unpredictable treatment of youth perceived to be associated with the opposition by the state authorities and the Imbonerakure.8 [28] Considering the above, I find that the Appellant has established on a balance of probabilities that she was arrested, detained and released by state authorities and the Imbonerakure and that her cousin XXXX is still missing. The Appellant's hiding and escape from Burundi after being released is established [29] The Appellant alleges that she hid at the house of a family friend, XXXX XXXX, for a number of months until she was able to escape the country. The RPD found it implausible that the Appellant lived at XXXX house for months but could not recall the name of XXXX wife or describe the area or landmarks surrounding his house. [30] The Appellant has submitted evidence in this appeal that corroborates her time at XXXX house. XXXX has written a notarized letter and attached an identity document confirming that the Appellant stayed with him. Many of the other letters of support, such as the one from the Appellant's parents, also corroborate this allegation. [31] I also note that during her testimony, the Appellant was able to confirm that XXXX had no children at the time, to name one of his neighbours and to describe the interior of his house. The Appellant also points out that she only left the house twice and that she was only 17 at the time. [32] Taking all of this into account, I find that the Appellant has established on a balance of probabilities that she lived with XXXX in hiding until she was able to exit the country. [33] The Appellant also alleges that she obtained a genuine passport and used it to exit the country and that XXXX facilitated the process with bribes and his contacts. The RPD found it implausible that she would be able to obtain a genuine passport and exit the country with it at an official port of exit if she was wanted by the authorities. [34] On appeal, the Appellant has provided a letter from XXXX which describes in detail how he assisted the Appellant in leaving the country. The agent at the airport who assisted the Appellant has also written a letter of support indicating that he facilitated her exit. [35] I also note, as pointed out by the Appellant, that the country documentation confirms that contacts and bribes are often used to facilitate an exit from the country.9 While the country documentation focusses on the situation faced at land borders, I find it likely that the situation would be similar at other ports of exit such as airports. I also note that there is evidence in Burundi of corrupt state officials that can assist in obtaining identity and residence documents.10 If there are corrupt official who can assist in obtaining documents, it is entirely possible that corrupt state officials are able to issue and scan passports without alerting other officials to the fact that an individual is wanted by state authorities. [36] The RPD discussed an article that describes the ability of the Imbonerakure to locate individuals throughout the country and stop individuals from leaving the country in arriving at its conclusion that the Appellant's exit from Burundi without issues was implausible.11 It is important to note that this article says that the Imbonerakure could stop someone from leaving the country and that a professor quoted in the same article raises a doubt as to the Imbonerakure's ability to stop someone from leaving the country. In these circumstances, especially considering the evidence that has been made available to the RAD, it is not implausible for the events to have happened as alleged by the Appellant. [37] For the reasons above, I find that the Appellant has established on a balance of probabilities that she was assisted by XXXX in obtaining her passport and using it to flee the country without issues at the border. The risks incurred by family members in sending letters of support [38] I note that during the hearing, the Appellant justified the lack of corroborative documents by stating that people were scared to assist or send documents to support her claim as this would put them at risk with the authorities in Burundi. Considering the reach of the state and the Imbonerakure in Burundi,12 this fear is justified. [39] It may therefore seem contradictory that there are now many family members who are willing to write support letters with identity documents about the Appellant who is wanted by Burundian authorities and send them to Canada. First of all, I note that some of the people who have written letters are those who are closest to the Appellant such as her parents and the people who helped her the most before she left. I also note, as pointed out by XXXX in his letter, that the impact of the lack of documents before the RPD is now clear and this might have persuaded people to help who were not originally inclined to assist. [40] This potential issue is also outweighed by the probative value, credibility and level of detail contained in the letters that have been submitted. Both XXXX and the Appellant's mother's notarized letters, for example, contain significant detail and describe the events from the perspective of the person writing. The fact that the Appellant's parents went into hiding is also corroborated by various other letters from family members who have been in touch with them recently. I have examined them closely and find no contradictions between them nor with the Appellant's BOC or testimony. [41] I also note that the Appellant only has to satisfy me of her allegations on a balance of probabilities. I do not need to be completely certain of them. Even with a lingering doubt as to the reason why individuals back home would place themselves in harm's way, the above factors are sufficient to convince me of their validity and their weight in establishing the Appellant's allegations on a balance of probabilities. The Appellant has established a serious possibility of persecution [42] The Appellant has established that she was arrested and detained for multiple days by state authorities and the Imbonerakure, that she remained in hiding until she fled the country and that she is perceived as being associated politically with the opposition due to her cousin's involvement in protests against the government. [43] Given the violent and extreme tactics used by the government and the Imbonerakure to repress any perceived political opposition,13 I find that there is a serious possibility that she would be persecuted by the state or by the Imbonerakure if she were to return to Burundi today. Other RPD findings [44] The RPD also made a negative credibility inference due to the fact that the Appellant did not inform Canadian authorities immediately upon arrival that she had the intention of making a refugee claim. The Appellant argues that her explanation, that she feared being deported, is reasonable. I agree. Considering the Appellant's age and that her parents were much more involved in her immigration procedures than she was, it is reasonable that she thought it would be a problem to declare she wanted to claim refugee status at the airport. I also note that she initiated her refugee claim only a few weeks after arriving in Canada. I do not find this delay in claiming refugee status to be indicative of a lack of credibility or a lack of subjective fear. [45] There are other RPD findings and arguments from the Appellant that I do not see the need to discuss in this decision. They would not change my determination. State protection [46] As the state is one of the agents of persecution, she cannot turn to them to seek protection. Internal flight alternative [47] The Appellant cannot move to another location in Burundi to seek refuge. Burundi is a small country and the state authorities and the Imbonerakure are present throughout the country. CONCLUSION [48] The appeal is allowed. Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its own determination that the appellant is a Convention refugee. (signed) "Sasha Kiran Cragg-Gore" Sasha Kiran Cragg-Gore October 24, 2018 Date 1 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 2 Horvath v. Canada (Minister of Citizenship and Immigration), No. IMM-3425-17, Mosley, February 8, 2018; 2018 FC 147, at para. 18. 3 M.C.I. v. Huruglica. Bujar (F.C.A., no.A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 4 Ibid., at paras. 69-74 and X (Re), 2017 CanLII 33034 (CA IRB). 5 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for Burundi (31 March 2017), at item 2.1, United States. Department of State., Burundi. Country Reports on Human Rights Practices for 2016., dated 3 March 2017. 6 Ibid., at item 10.10, Human Rights Watch, Burundi: Abductions, Killings, Spread Fear, dated 25 February 2016. 7 Ibid. 8 Ibid., at item 10.4, Amnesty International, Burundi: Just Tell Me What To Confess To: Torture by Police and Intelligence Services Since April 2015, dated 23 August 2015. 9 Ibid., at item 14.2, Immigration and Refugee Board of Canada (IRB), Responses to Information Requests (RIR), ZZZ105753.E, dated 20 March 2017. 10 Ibid., at item 3.10, IRB, RIR, BDI105008.E, dated 11 December 2014. 11 Ibid., at item 7.5, IRB, RIR, BDI104343.FE, dated 22 March 2013. 12 Ibid., item 2.1, United States. Department of State., Burundi. Country Reports on Human Rights Practices for 2016., at Section 2. Respect for Civil Liberties, dated 3 March 2017. 13 See, for example, NDP for Burundi (31 March 2017) at items 10.1, Human Rights Watch, Burundi: Intelligence Services Torture Suspected Opponents, dated 7 July 2016, at item 2.13 International Federation for Human Rights; Ligue burundaise des droits de l'homme, Repression and genocidal dynamics in Burundi, dated November 2016 and at item 10.4. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-17182 RAD.25.02 (August 08, 2018) Disponible en français 14 RAD.25.02 (July 05, 2018) Disponible en français