Date: 20030626
Docket: IMM-3112-02
Citation: 2003 FCT 787
Ottawa, Ontario, Thursday the 26th day of June 2003
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
ALLEN NASH SIMBARASHE MASUNDA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DAWSON J.
[1] Mr. Masunda is a citizen of Zimbabwe who claimed status as a Convention refugee based on his political opinion. His claim was rejected by the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") because, in its words, "the key inconsistencies in the evidence before it leads the panel to conclude that the claimant's claim that he provided secret information to the opposition party such that his life would be at risk now in Zimbabwe" was not credible. Mr. Masunda brings this application for judicial review of that decision.
[2] In summary, Mr. Masunda's claim is as follows. For 20 years he worked as an officer in Branch 5 of the Central Intelligence Organization ("CIO") in Zimbabwe. Mr. Masunda's duties in that branch included protecting the President of Zimbabwe, Robert Mugabe, doing advance work in anticipation of presidential visits, and gathering intelligence that would assist the CIO in identifying dangers to the President.
[3] Mr. Masunda says that in 2000 he passed confidential information to a member of the Movement for Democratic Change ("MDC"), an opposition political party. Mr. Masunda says he did so after 20 years of government service because he was upset over the way he and other senior civil servants were being treated, and by the way the president was running the country. In June of 2000, the government found out that Mr. Masunda had passed on confidential information, and he began to receive anonymous phone calls from people warning him that they knew he had given information to the MDC. Mr. Masunda says he was also told to be careful by his own reliable sources at the President's office, and that he received a warning telephone call from a secretary at the CIO who advised him that he was being investigated.
[4] As to the CRDD's credibility findings, I accept the submissions of counsel for Mr. Masunda that two of the panel's findings were not properly made for the following reasons.
[5] First, the panel gave no reason for its conclusion that it was not credible that two men would visit Mr. Masunda's mother's home looking for him for releasing confidential information. The CRDD is obliged to give reasons for rejecting the sworn testimony of a claimant and it erred in failing to do so.
[6] Second, the CRDD did not believe that Mr. Masunda possessed any confidential information that was not publicly available about corruption in the Mugabe government. The CRDD pointed to certain documentary evidence available at the time which dealt with corruption in the government. In my view, the CRDD erred in rejecting Mr. Masunda's testimony for the reason given by it. The CRDD failed to consider the specific nature of the information Mr. Masunda said he passed to the opposition. While corruption may have been generally well-known, the documentary material relied on by the CRDD did not reference or contain the specific information that Mr. Masunda said he made available to the opposition. The documentary information relied upon by the CRDD did not, therefore, contradict his evidence.
[7] Notwithstanding these errors, I am satisfied that there remains in the reasons of the CRDD a sufficient basis for finding Mr. Masunda's claim that his life is now at risk in Zimbabwe not credible.
[8] There was, as found by the CRDD, a material difference between the basis of Mr. Masunda's fear, as expressed to the officer at the port of entry, and the basis as expressed to the CRDD. Given the precise description of this fear in the port of entry notes, the CRDD was amply entitled to reject Mr. Masunda's explanation that he did not say those things to the officer. On this application for judicial review it was argued that Mr. Masunda may simply have been misunderstood by the officer. However, Mr. Masunda made no complaint to the CRDD that he could not understand the officer or that the officer appeared to have any difficulty understanding him.
[9] While in his testimony Mr. Masunda did use the correct acronym when referring to the MDC, on both occasions when he was asked to give the proper full name for the party he was unable to do so. It was not patently unreasonable for the CRDD to conclude that Mr. Masunda would know the proper name of the party he claimed to be assisting.
[10] Similarly, the CRDD could draw a negative conclusion from the fact that after June 2000 (when it was allegedly discovered that Mr. Masunda was assisting the opposition) no actions were taken against him by the government. During the period following this discovery, Mr. Masunda could easily have been located either in hospital or at his home.
[11] The CRDD also correctly observed that while Mr. Masunda testified at one point that he only learned of government corruption, and the seizure of white-owned farms, in February of 2000, he would have been aware of this information earlier because of his position in the CIO. Indeed, Mr. Masunda later testified that the one occasion on which he released information to the opposition was in December of 1999. One piece of information he provided at that time related to corruption with respect to a white-owned farm that was seized and then given to a relative of the President. This contradicts his testimony that he only learned of government corruption with respect to white-owned farms in February of 2000.
[12] I conclude, therefore, that the two errors identified above were not material to the ultimate decision. It follows that, notwithstanding the thorough submission of Mr. Masunda's counsel, the application for judicial review will be dismissed.
[13] Neither counsel posed a question for certification, and no question arises on this record.
ORDER
[14] IT IS HEREBY ORDERED THAT:
The application for judicial review is dismissed.
"Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3112-02
STYLE OF CAUSE: Allen Nash Simbarashe Masunda v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Tuesday, June 3, 2003
REASONS FOR ORDER:
AND ORDER: Hon. Madam Justice Dawson
DATED: June 26, 2003
APPEARANCES:
Mr. Roger Rowe FOR THE APPLICANT
Ms. Rhonda Marquis FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Roger Rowe
Barrister and Solicitor
North York, Ontario FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General FOR THE RESPONDENT
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