Date: 20030709
Docket: IMM-3617-02
Citation: 2003 FC 851
BETWEEN:
BHEKINKOSI NDLOVU
KWANELE NDLOVU
NOMAGUGU NDLOVU
Applicants
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is a judicial review pursuant to the s.18.1 of the Federal Court Act, R.S.C. 1985, c. F-7 of a decision of a Convention Refugee Determination Division Board (the ABoard@), dated May 30, 2002, wherein the Board determined that the applicants, two brothers and a sister, were not Convention refugees. The three siblings= claims were heard together, as they are substantially similar, and all three were rejected.
[2] The applicants are citizens of Zimbabwe, and range in age from 27 - 33. The basis of the claims was that the siblings had been persecuted by government supporters and war veterans for their political beliefs; they are members of the MDC party, a movement advocating democracy in Zimbabwe. The three applicants= testimony varied slightly but significantly on main issues of facts; also, some differences are apparent in the narratives in each of the PIFs and the testimony before the Board.
[3] Kwanele joined in the MDC in September 1999, Nomagugu in June 2000 and Bhekinkosi in March 2001. During a MDC rally in June 2001, war veterans and members of Zanu-PF Youth attacked demonstrators, including Bhekinkosi, who was beaten. Kwanele states in his testimony that during this rally, Zanu-PF Youth members burned his house, although this incident is not revealed in the notes from his Port of Entry interview. He states that before this rally, he had received death threats, which the entry interview notes state was his motivator to leave Zimbabwe. He testified that he was confused when he arrived in Canada, which is why he did not mention his house being burned, an otherwise major event.
[4] In the days following the rally, war veterans came to Bhekinkosi=s home, as well as to his father=s and uncle=s houses. The testimonies are inconsistent as to whether Kwanele and Nomagugu were at home during either of the war veteran=s visits following the rally, as Bhekinkosi states in his testimony that they were. On the other hand, in his PIF, as well as his sister=s testimony, both stated they had already left. Bhekinkosi relates that his father was threatened and his property destroyed by the war veterans, but testified he learned this through a tenant living at his house, rather than from his father first hand. Kwanele was allegedly at his father=s home when this occurred, but he does not make mention of it in either his PIF or his testimony.
[5] Nomagugu, the sister, states she was not as politically active as her brothers. In her testimony, she relates that in July 2001, war veterans told her they would kill her if they could not find her brothers; also, that she was home in June when the war veterans came looking for her brothers, which confirms Bhekenkosi=s statement. However, later she testifies that she was at school studying design in July, which is not mentioned in her PIF, and was absent when the war veterans came. As well, she does not make any mention of Kwanele=s house being burned, although her earlier statements imply that she would have been there when it happened.
[6] The reasons issued by the Board addresses the three applicants in separate sections, with reference to the others highlighting what the Board found to be serious inconsistencies within and among the applicant=s stories. In conclusion, regarding each claimant, the Board determined that the omissions, inconsistencies and contradictions negatively effected the credibility of each of the applicants.
[7] The applicants identified four main concerns with the Board=s reasons: what they perceived to be a failure to consider the totality of the evidence; denying the applicants an opportunity to explain discrepancies; over-reliance on the Port of Entry notes and a failure to sufficiently differentiate between the claims. The appropriate standard of review applicable to CRDD Board decisions is that of patent unreasonableness.
[8] In addressing the first issue, the applicant emphasises that the Board at no point concluded that the applicants were not genuine members of MDC. The applicants urge that the Board was required the assess their claims on the basis of all information that was not rejected as not being credible. Therefore, the Board should have found a reasonable basis of their fear of persecution on the basis that they were members of an opposition party in Zimbabwe that is the subject of violent suppression.
[9] In reply the respondent agrees that the weight given evidence is a matter entirely for the Board to determine and it is not the role of this Court to re-weigh the evidence adduced. The conclusions regarding the applicant=s credibility were unmistakeably set out by the Board in its reasons, following a detailed analysis of the inconsistencies in the testimony and PIFs of all three applicants. Having determined that the applicants lacked credibility regarding their actual experiences of persecution, the Board was not required to further assess other evidence. This is supported by Justice Pinard=s statement from Djouadou v. Canada (MCI), [1999] F.C.J. No. 1568 at para.4:
With respect to the applicant's argument that the panel did not consider the documentary evidence concerning Algeria, I am of the view that insofar as the applicant's testimony was found not to be credible, such an assessment was not required (Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238).
[10] As in this case, the evidence in Djouadou related to country condition information similar to the information submitted in this case regarding the suppression of opposition groups in Zimbabwe.
[11] The applicants allege that since the Board did not address the authenticity of the membership cards submitted by each of the applicants; it is fair to impute that the Board accepted these as genuine. Counsel for the respondent submits that there is no automatic assumption that there is a reasonable objective or subjective fear of persecution leading from mere possession of a membership card. Therefore, in its finding on the evidence that the inconsistencies in the testimony so significantly eroded the applicants= credibility, the Board did not act patently unreasonably.
[12] The second issue raised by the applicants that the Board did not give them sufficient opportunity to address the inconsistences in their testimonies, citing Gracielome v. MEI (1989), 9 Imm. L.R. (2d) 237 (F.C.A.), where the court held a Board is required to provide the claimant with an opportunity to address key issues.
[13] However, as the respondent points out, Gracielome does not refer to all inconsistencies in testimony that may affect credibility. In Ayodele v. Canada (M.C.I.), [1997] F.C.J. No.1833, Mr. Justice Gibson states at para. 15:
I think it is fair to assume that any contradictions in the applicant's testimony would have been as apparent to counsel as to the CRDD members. In such specific circumstances, to have a decision fail, by reason only of the failure on the part of the CRDD members to put the contradictions to a represented applicant goes well beyond what I take to be the position enunciated in Gracielome and places what, in my view, is an unwarranted burden on members of the CRDD. To reiterate, the Applicant was represented. Presumably, counsel was attentive to the testimony. It was open to counsel to examine or reexamine his or her client on any perceived inconsistencies without coaching from the CRDD members.
[14] The situation in this case is very similar to Ayodele: the applicants were represented by the same counsel, and the inconsistencies are apparent on the face of the record and go to the most central aspects of the stories B where each of the individuals were, on the dates certain threats arose. It is not at all unreasonable for the Board to determine the applicants lacked credibility. Further, as the Board notes in its reasons, it was more concerned with Kwanele=s house burning incident. Inconsistencies on this point were far more persuasive for the Board in reaching its conclusion and on this point Kwanele was asked to explain the difference between his testimony and others. He said only that he was Aconfused.@
[15] The Board makes repeated reference to the Port of Entry (APOE@) notes for each of the applicants, and the applicants argue that the Board misunderstood the role and nature of these notes, and submits that accepting the content of the notes as negatively affecting the credibility of the siblings without further questioning them is capricious.
[16] At no point in the reasons does the Board claim that the POE notes are sworn testimony, or in any way a comprehensive transcript of the interview. In the recital of the hearings, the applicants are asked about the POE notes, and asked why certain information did not appear in the POE notes. The applicant emphasises that the notes are the officer=s notes, not the applicants=. The Board is nonetheless entitled to inquire into why significant events B such as Kwanele=s house being burned B does not appear in the notes from his interview; to draw conclusions based on the omission at entry and the explanation given under oath is not unreasonable. In this example, the Board was not satisfied with the answer that the applicant was confused and drew a negative credibility finding from the fact that this major incident was not mentioned.
[17] Finally, the applicant=s position is that the Board did not sufficiently distinguish between the claims. The reasons clearly address each of the three claims separately, under different headings. References are properly made to the other claims for comparison and highlight inconsistencies. Contrary to the applicants= claim, the reasons do not make negative credibility findings on any one applicant because they failed to mention something their siblings had mentioned; rather, credibility was affected when the siblings failed to make any mention of an event they allegedly saw or in which they participated and were related to their claim of fearing violence.
[18] The main submission advanced by the applicants= counsel was the existence of total confusion resulting in misinterpretation by the Tribunal as it relates to the testimony given by the three applicants. A careful review of the transcript does not in my mind support this allegation. If there was confusion, it was created by the applicants themselves. They relate three different circumstances with respect to when war veterans came to their city home following the rally of June 16. There is total confusion as to when each of them would have joined the MDC party which was in opposition to the government. They relate different stories with respect to the burning of the men=s hut at the father=s country compound, as to who was there and when it occurred. There is no evidence in any of their testimony with respect to who may have caused the fire at the compound. Also, threats of violence towards the female applicant by the war veterans appear to be illusory and not supported by the evidence.
[19] I am satisfied that the Tribunal properly related the story of each of the applicants and was correct in finding inconsistencies and total absence of any evidence supporting their claim.
[20] Accordingly, the application for judicial review is dismissed.
JUDGE
OTTAWA, Ontario
July 9, 2003
FEDERAL COURT OF CANADA
SOLICITORS OF RECORD
DOCKET : IMM-3617-02
STYLE OF CAUSE : BHEKINKOSI NDLOVU, KWANELE NDLOVU, NOMAGUGU NDLOVU and THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Winnipeg
DATE OF HEARING: June 11, 2003
REASONS : The Honourable Mr. Justice Rouleau
DATE OF REASONS: July 9, 2003
APPEARANCES : Mr. David Matas
FOR THE APPLICANTS
Ms. Nalini Reddy
FOR THE RESPONDENT
SOLICITORS OF RECORD :
Mr. David Matas FOR THE APPLICANTS
Barrister & Solicitor
Morris Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT
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