Date: 20031201
Docket: IMM-4393-02
Citation: 2003 FC 1400
Ottawa, Ontario, the 1st day of December 2003
PRESENT: The Honourable Mr. Justice Michel Beaudry
BETWEEN:
VUSUMUZI SIBANDA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of part of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the panel) dated August 22, 2002, that the applicant is not a Convention refugee within the meaning of section 96 of the Act.
ISSUE
[2] Did the panel err in finding that the applicant lacked credibility and in not recognizing that his fear of persecution was well-founded?
[3] For the following reasons, I answer this question in the negative and the application for judicial review will therefore be dismissed.
FACTUAL CONTEXT
[4] The applicant claims to fear persecution by war veterans and supporters of the ZANU-PF party because of his political opinions in Zimbabwe.
[5] During a rally staged by the Movement for Democratic Change (MDC) party that was held in April 2000 in anticipation of the parliamentary elections two months later, the applicant's uncle introduced him to Nomalanga Khumalo, the MDC's candidate. The applicant joined the party at the end of the meeting and began to sell the party's cards in the villages surrounding the school where he taught. On June 7, June 14 and June 21, 2000, the war veterans came to the applicant's school, beat all the teachers, forced them to recite ZANU-PF slogans and took them to ZANU-PF meetings by force.
[6] Near the end of the year 2000, the government issued a directive ordering school principals to prepare a list of teachers who supported the MDC. The applicant's name appeared on the list.
[7] On July 7, 2001, the applicant attended the funeral of a militant of the MDC. On July 9, 2001, the father of one of the applicant's students, Peter Ndlovu, warned the applicant that the war veterans were going to come during the night to raid the school. The applicant then warned the other two teachers to whom he had sold an MDC card - they refused to flee and he went to hide at Ndlovu's house. The war veterans actually did come to harass the teachers who were members of the MDC, throughout the night, and made them march around to show the population that these teachers had "sold themselves", and threw them out of the school.
[8] On July 11, the applicant went to his parents' home in Bulawayo where he was informed that four men from the government had come looking for him the previous day. The same day, Khumalo found a place so that the applicant and his uncle could hide until the end of July. In the interim, the war veterans returned to the home of the applicant's parents several times and asked where he could be found. On August 9, 2001, with the financial assistance of Khumalo, the applicant and his uncle escaped from the country through South Africa and then arrived in Canada.
THE IMPUGNED DECISION
[9] The panel dismissed the applicant's refugee claim because it did not believe that he was credible. The panel based its determination on the improbabilities that it found in the applicant's story. He gave vague and unclear answers to certain questions.
ANALYSIS
[10] It would be appropriate to emphasize the standard of review that is applicable when the Court has to decide on issues of credibility and fact. The Court cannot intervene unless the panel has made a patently unreasonable error (Sivasamboo v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 741 (F.C.T.D.), Ismaeli v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 573 ((F.C.T.D.) (QL), Muthuthevar v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 207 ((F.C.T.D.) (QL)). As stated by Associate Chief Justice Jerome stated in Boye v. Canada (Minister of Employment and Immigration) (1994), 83 F.T.R. 1 (F.C.T.D.), at paragraph 4, it is up to the panel, as the trier of the facts, to assess the credibility of an applicant:
The jurisprudence has established the standard of review in cases of this nature. To begin with, questions of credibility and weight of evidence are within the jurisdiction of the Refugee Division as the trier of facts in respect of Convention refugee claims. When a tribunal's impugned finding relates to the credibility of a witness, the Court will be reluctant to interfere with that finding, given the tribunal's opportunity and ability to assess the witness, his demeanour, frankness, readiness to answer, coherence and consistency in oral testimony before it. (. . .) [my emphasis]
[11] Furthermore, the simple fact that the objective situation in Zimbabwe had been established, showing the oppression and abuses of the government of Robert Mugabe and the war veterans, does not excuse the applicant from presenting evidence that is credible and trustworthy about his own personal situation and his fear of persecution.
[12] Now let us consider the improbabilities that the panel found in the applicant's testimony that discredited his credibility. During the attack of June 7, 2000, the applicant received better treatment from the war veterans than two teachers without political ties despite the fact that the veterans had proof that he was an MDC sympathizer - even though the documentary evidence indicates that there were brutal attacks against sympathizers. The Court cannot conclude that this finding is patently unreasonable.
[13] The applicant, in great fear for his life, stated that he had warned two other teachers of the attack of July 9, 2001, even though he knew that all MDC sympathizers faced the same danger. The applicant believes that this finding is patently unreasonable because the panel had no reason to cast doubt on his testimony by asking him to conduct himself or behave in a certain way. At the hearing, the applicant explained that he felt responsible for the two individuals to whom he had sold MDC cards and that he knew they were sympathetic to the party and therefore in greater danger. The other teachers were not openly supportive of the MDC. The Court finds it rather curious that somebody who was so obviously interested in the MDC party that he was recruiting supporters in the surrounding villages by selling cards would not be more supportive of the other members of the same party. The applicant's answer on this point certainly does not appear to be entirely satisfactory and the panel's finding is not patently unreasonable.
[14] After being warned by the applicant of the impending attack of the veterans, these two colleagues chose to stay in their room despite the fact that all the school teachers had been mistreated by the veterans the year before. In fact, the newspapers had been reporting similar recent attacks by the veterans in other schools. The applicant replies that the panel made a patently unreasonable error on this point because the applicant did not have any control over the reaction of the teachers or their actions. According to the applicant, the panel cannot maintain that the applicant lied because the teachers refused to listen to him and chose to remain in their residence. Once again, the Court could find differently on this point but given that this calls for great deference and that the panel's determination is supported by concrete and logical facts, the finding is not patently unreasonable.
[15] The applicant claims to have received strategic and financial assistance from the MDC deputy Khumalo in order to leave the country. However, the documentary evidence explicitly states that no member of the MDC helped those seeking asylum to leave the country and that the party does not advocate that MDC members leave to find refuge elsewhere. On this point, the applicant believes that a patently unreasonable error was made because despite the strict MDC position depicted in the documentary evidence, the applicant testified that Khumalo was a personal friend of his uncle and that she therefore had a specific reason to deviate from the usual protocol of the party. However, the panel, in hearing the applicant's testimony, was in the best position to evaluate the significance of the relationship between Khumalo and the applicant's uncle and to weigh it against the documentary evidence adduced. The Court has no intention of intervening here.
[16] The preceding improbabilities aside, the panel also drew negative inferences about the applicant's credibility because his answers regarding his failure to warn the other teachers of the danger that was imminent were found to be vague and unclear.
[17] The panel also found the applicant's explanations regarding the electoral divisions to be unsatisfactory. After reviewing the transcript, the Court also remains somewhat perplexed about the electoral divisions in the region where the applicant lived and worked but it is possible that this ambiguity is simply due to an unintentional lapse in communication on the part of the applicant and a failure, on the part of the panel, to ask questions in order to clarify. This factor is not determinative, however.
[18] As for Khumalo's political organization and the number of people that work for her, the applicant could not provide specific information, which led the panel to conclude that the applicant had not really worked for Khumalo. The Court observes that the applicant claims to have gone to get MDC cards from Khumalo's residence on three occasions and that his uncle was a close friend of Khumalo - so much so that she paid for the escape of the applicant and his uncle and, in so doing, risked her career. The applicant argues that his lack of knowledge about Khumalo's political organization is explained by the fact that he did not vote in Khumalo's district. The Court finds it odd that the applicant was not more aware of Khumalo's activities given the close relationship he and his uncle appear to have had with the deputy. Indeed, I do not see anything patently unreasonable about the panel's finding.
[19] Finally, the panel examined, with good reason, the content of the applicant's PIF before and after his changes in order to assess his credibility (Kutuk v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1754 (F.C.T.D.) (QL)). The applicant had indicated initially in his PIF that he had attended the funeral of an MDC militant that took place in June 2001. The applicant then changed his PIF to indicate that the funeral actually took place on July 7, 2001. The panel found that this was an important change because July 7 was only two days before the veterans' attack at the school. The applicant claims that this was only an error caused by inadvertence that is not at all indicative of bad faith. Given that the service was held only two days before the attack, the respondent claims that it would have been reasonable to expect that this would have prompted the applicant to remember the date of the funeral. The Court agrees with the respondent's argument and therefore finds that the panel's reasoning was not patently unreasonable.
[20] In short, the panel was justified in examining the evidence as a whole and in finding that the applicant lacked credibility given the improbabilities in his testimony because certain elements were vague. Even though the Court could have found differently on certain contested facts, the fact remains that there was no patently unreasonable error and that the panel is in the best position to assess all of the subtleties that affect credibility. Dubé J. explains this very well in Herrera v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 13 (F.C.T.D.) (QL), at paragraph 6:
[. . .] Even if each implausibility outlined by the Board could somehow be redeemed, it was still open to the Board to take a global view of the evidence and to conclude that the applicant was not credible. The Board did provide reasons as to why it did not accept the applicant's version of events after having heard the witness and assessed his behaviour. A detailed analysis of several questions and answers from a transcript may lead to different interpretations from different readers, but in matters of appreciation of facts and credibility it is the interpretation of the trier of facts that must be accepted, unless his findings are unreasonable. [my emphasis]
[21] Consequently, the application for judicial review is dismissed.
[22] The parties did not propose a serious question of general importance for certification. Therefore, no serious question of general importance will be certified.
ORDER
THE COURT ORDERS that:
1. The application for judicial review is dismissed.
2. No serious question of general importance is certified.
"Michel Beaudry"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4393-02
STYLE OF CAUSE:
VUSUMUZI SIBANDA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 19, 2003
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE MICHEL BEAUDRY
DATED: December 1, 2003
APPEARANCES:
Eveline Fiset FOR THE APPLICANT
Caroline Cloutier FOR THE RESPONDENT
SOLICITORS OF RECORD:
Eveline Fiset
Montréal, Quebec FOR THE APPLICANT
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General
of Canada
Montréal, Quebec
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