JEANNE MARIE NTIRANDEKURA LUCE QUEENTHIA ISHATSE Applicants v. THE MINISTER OF, 2016 FC 564

Date: 20160520 Docket: IMM-5288-15 Citation: 2016 FC 564 [UNREVISED ENGLISH CERTIFIED TRANSLATION] Ottawa, Ontario, May 20, 2016 PRESENT: The Honourable Mr.

Justice Martineau BETWEEN:JEANNE MARIE NTIRANDEKURA LUCE QUEENTHIA ISHATSEApplicantsandTHE MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIPRespondent JUDGMENT AND REASONS [1] Having considered the reasons for the negative decision of the Immigration and Refugee Board of Canada (IRB) RefugeeProtection Division (RPD) on the entire docket and the applicable legal principles, I am satisfied in this case that the RPD committed areviewable error by failing to clearly rule on the reasonable chance of persecution and the existence of a personalized risk involved in theapplicants’ return to Burundi, because of both their Tutsi background and their family ties with Tutsi General Philibert Habarugira, oneof the main instigators of the failed coup d’état against the President of Burundi, Pierre Nkurunziza, on May 13, 2015. [2] In direct response to the RPD’s question suggesting that [translation] “currently, [the applicants are afraid] of returning toBurundi for reasons related to [their] ethnic background,” the primary applicant said at the hearing that [translation] “[she is] not onlyafraid of returning to Burundi because [she is] Tutsi, [but is also] afraid of returning to Burundi because [she is] sought by the authoritiesfor participating in demonstrations [on May 10 and 13, 2015 against President Nkurunziza].” The applicant also testified that herhusband [translation] “is a judge, a magistrate,” and that he [translation] “is also seeking refuge and hiding,” first, [translation] “because[she] went to the demonstration,” and second, because [translation] “[his] brother is a general who was involved in the coup.” At thebeginning of the hearing, the RPD accepted the submission of photos showing the primary applicant’s husband with his brother, GeneralPhilibert Habarugira, and an

article published online on June 26, 2015, indicating the existence of [translation] “an international arrestwarrant for the coup-plotting General Philibert Habarugira,” as well as a public service mutual corporation card with photos of theapplicant and her husband, showing that her husband belongs to the judiciary. In the documentary evidence produced by the applicants atthe hearing, there is another

article published online on June 29, 2015, that addresses the issue of [translation] “[the] ethnic dimension,with another conflict looming between the Hutu and Tutsi peoples.” [3] The RPD ruled that the primary applicant’s testimony with respect to her own participation in the May 2015 demonstrationswas not credible, and the applicants are not calling the reasonableness of that conclusion into question today.

Be that as it may, withoutan independent analysis of the evidence, the RPD could not conclude that the primary applicant [translation] “did not establish a well-founded fear of persecution for any of the grounds indicated (her own political involvement or assumed involvement, or her involvementin the family’s social group), or for any of the reasons in the Convention.” [4] This is not a situation in which the RPD failed to rule on a ground of persecution “that had not been argued and that did notemerge perceptibly from the evidence presented as a whole” (Guajardo-Espinoza v.

Canada (Minister of Employment and Immigration),[1993] F.C.J. No. 797 (FCA) at paragraph 5; Pierre-Louis v. Canada (Minister of Citizenship and Immigration), [1993] F.C.J. No. 420(FCA); Singh v. Canada (Citizenship and Immigration, 2008 FC 453 at paragraph 22; Singh v. Canada (Citizenship and Immigration),2009 FC 1070 at paragraphs 23 and 24; Ramirez v. Canada (Citizenship and Immigration), 2008 FC 466 at paragraph 17). Rather, it is acase in which the Court must intervene because “the crux of the claim may not have been adequately identified” (Niyonkuru v.

Canada(Citizenship and Immigration), 2012 FC 732 at paragraph 2) and in which the RPD’s failure to address a potentially determining groundof persecution based on all of the evidence constitutes a reviewable error that justifies setting aside the decision and referring the claimfor refugee protection for redetermination (Canada (Attorney General) v. Ward, (SCC), [1993] 2 SCR 689 atpages 745 and 746; Viafara v.

Canada (Minister of Citizenship and Immigration), 2006 FC 1526 at paragraphs 5 to 8; Emmanuels v.Canada (Minister of Citizenship and Immigration), 2002 FCT 865 at paragraphs 5 et seq.). [5] On the other hand, I do not consider the RPD’s statement that the primary applicant [translation] “specified that she wasafraid to return because . . . her husband’s brother was a general involved in the coup d’état, which is new information that was notincluded in the Basis of Claim (BOC) Form” as a clear indication that the RPD rejected that part of the claim because the primaryapplicant’s allegations about her brother-in-law and her husband are not credible, particularly given that they are corroborated by photosand an

article that she submitted into evidence. [6] As indicated above, the RPD is mistaken when it states in paragraph 7 of the decision that the applicant [translation]“testified that she was not afraid of returning because of her ethnic background (Tutsi).” Furthermore, beyond the applicants’ subjectivefear, and even beyond the conclusion of non-credibility with respect to the primary applicant’s participation in the May 2015demonstrations, the RPD was obligated to examine the existence of a reasonable chance of persecution and of a personalized risk

involved in returning based on the most recent objective information from Burundi regarding the feared resurgence of tensions between the Hutu and Tutsi peoples, given the volatile environment and political instability caused by President Nkurunziza’s decision to remain in power and seek out a third term, despite strong opposition in the country ( Attakora v. Canada (Minister of Employment and Immigration) , [1989] F.C.J. No. 444 (FCA) ). [ 7 ] For these reasons, the application for judicial review is allowed.

The decision of November 3, 2015 is set aside and the case is referred back to the IRB for redetermination by another RPD panel. Counsel for the parties agree that there are no questions of general importance in this case. JUDGMENT THIS COURT ADJUDGES AND ORDERS that the application for judicial review be allowed. The decision of November 3, 2015 is set aside and the case is referred back to the Immigration and Refugee Board of Canada for redetermination by another Refugee Protection Division panel.

There is no question to be certified. “Luc Martineau” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-5288-15 STYLE OF CAUSE: JEANNE MARIE NTIRANDEKURA LUCE QUEENTHIA ISHATSE v THE MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: May 18, 2016 JUDGMENT AND REASONS: MARTINEAU J. DATED: May 20, 2016 APPEARANCES : Marie-France Chassé FOR THE APPLICANTS Lynne Lazaroff FOR THE RESPONDENT SOLICITORS OF RECORD : Your Immigration, Lawyers, Montréal, Quebec FOR THE APPLICANTS William F. Pentney Deputy Attorney General of Canada Montréal, Quebec For the Respondent