Date: 20020809
Docket: IMM-315-02
Neutral citation: 2002 FCT 850
Ottawa, Ontario, this 9th day of August, 2002
PRESENT: THE HONOURABLE MR. JUSTICE LUC MARTINEAU
BETWEEN:
MUGWAGWA BRIAN KANYAI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant seeks judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated January 4, 2002, wherein the Board determined that the applicant was not a Convention Refugee pursuant to subsection 2(1) of the Immigration Act.
[2] The applicant is a citizen of Zimbabwe who claimed Convention Refugee Status on the ground of political opinion. He alleged that he holds a membership in the Movement for Democratic Change Party ("MDC") and fears persecution at the hands of the ruling Zimbabwe African Nation Union (Patriotic Front), ZANU (PF) Party.
[3] The Board determined that the applicant's claim was not credible. It found that his testimony was neither credible nor trustworthy. It also found that the applicant was not an MDC member.
Alleged Facts
[4] In the case at bar, the applicant alleged that he joined the MDC in October, 1999 and claimed to have organized meetings and rallies opposing the ruling Party.
[5] The applicant alleged that during one of the rallies he organized, Zanu PF youths began to harass and accuse him of mobilizing people against the government. At first, the applicant did not take their threats seriously but soon the Zanu PF youths' attitude changed. On another occasion they came to the applicant and told him that he should quit "his politics" if he wanted to live longer.
[6] The applicant also alleged that in September 2000, four men came to his house looking for him and smashed the windows of his house. Moreover, according to the applicant's father's letter before the Board, the applicant's parents were attacked by the same people who came looking for the applicant in September 2000.
[7] The applicant told his father what had happened who then advised him to report it to the police. The applicant alleged that he did so, but that the police then accused him of being a thief and of being in fact the one who was breaking into houses in the area.
[8] The applicant then fled to the mountains. The applicant alleged, however, that on January 11, 2001, the Central Intelligence Organization ("C.I.O.") caught up with him and beat him. He finally left Zimbabwe on January 16, 2001, and arrived in Canada on January 17, 2001 where he made his refugee claim the same day.
Credibility Findings
[9] It is entirely within the Board's expertise to evaluate the credibility and the subjective fear of an applicant when testifying at the hearing. It has been recognized and confirmed that, with respect to credibility and assessment of evidence, this Court may not substitute its decision to the Board's when the applicant has failed to prove that the Board's decision was based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it (See Akinlolu v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 296 at para. 14; and the grounds for review at subsection 18.1(4)(d) of the Federal Court Act).
[10] Normally, the Board is entitled to conclude that an applicant is not credible because of implausibilities in his or her evidence as long as its inferences are not unreasonable and its reasons are set out in "clear and unmistakable terms". See Hilo v. M.E.I., 15 Imm L.R. (2d) 199 (F.C.A.); Aguebor v. M.E.I (1993), 160 N.R. 315 (F.C.A.); and Zhou v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1087 (F.C.A.).
[11] Furthermore, the Board is entitled to make reasonable findings based on implausibilities, common sense and rationality (See Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 415 at para. 2 (F.C.A.); and Aguebor, supra at para. 4). The Board may reject uncontradicted evidence if it is not consistent with the probabilities affecting the case as a whole, or where inconsistencies are found in the evidence (See Akinlolu, supra at para. 13).
[12] The Board did not believe the applicant.
[13] The Board explained in its decision, clearly and in unmistakable terms, why the evidence presented by the applicant was not credible. In the course of doing so, the Board offered detailed reasons citing implausibilities and inconsistencies in the applicant's evidence which concerned central aspects of his claim. The Board first addressed the fact that the applicant did not record the incident in which his parents were beaten by Zanu PF's members in his PIF. The applicant tried to explain this omission by claiming that he was not aware it had ever happened, he was not at the house during these events and his father did not want to upset him by telling him about the incident. The Board also addressed the fact that his father, in his letter to the Board, (Tribunal's Record at pp. 63-64), did report what happened to him and his wife, but did not corroborate the September 2000 events that occurred while he was in fact in the house. When asked to explain this omission the applicant said that he "was not quite sure" and he did not know why his father did not talk about this event (Tribunal's Record, Tribunal's transcript, at p. 114 of the record). Therefore, I am satisfied that the credibility findings were based upon the evidence and that the inferences drawn by the Board were reasonable.
Membership Evidence
[14] The applicant presented evidence of his membership in the MDC in the form of a membership card and letter apparently signed by an official of the MDC. The board had serious concerns about the veracity of the information contained in these documents (particularly the reference letter from the Party) and was unable to obtain independent proof. The letter was undated and did not specify when the applicant became an MDC member. Although the letter strongly supports the application for asylum, it does not mention the problems and risks faced by the applicant. Moreover, this letter was signed by an official at the district level. According to the documentary evidence before the Board, however, Party letters are usually signed by members of the Party's executive.
[15] The Board was prepared to try to verify the applicant's documents with the MDC directly in Zimbabwe. The applicant's former counsel, however, advised that such an attempt would be futile as the MDC has adopted a policy not to support any applications for asylum. Being unable to ascertain the truthfulness of the information contained in these documents, the Board decided to rely on other aspects of the applicant's evidence as giving no weight to the membership card and the reference letter.
[16] In Hamid v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1293 (F.C.T.D.), Nadon J. explained the rationale for the special nature of the evidentiary rule in refugee proceedings as follows at paragraph 20:
... It has to be remembered, however, that proceedings before the Refugee Board are of a particular nature in that the only evidence adduced, in effect, before the Board, is that of the applicant who testifies with respect to events which occurred in a foreign country. There is no adverse party in those proceedings and thus, there is no one to challenge the veracity of the applicant's story and the documents which the applicant submits to the Board. ...
[17] Nadon J. also stated that some corroboration or independent proof is necessary where the Board has credibility concerns at paragraph 21:
... Once a Board, as the present Board did, comes to the conclusion that an applicant is not credible, in most cases, it will necessarily follow that the Board will not give that applicant's documents much probative value, unless the applicant has been able to prove satisfactorily that the documents in question are truly genuine. In the present case, the Board was not satisfied with the applicant's proof and refused to give the documents at issue any probative value. Put another way, where the Board is of the view, like here, that the applicant is not credible, it will not be sufficient for the applicant to file a document and affirm that it is genuine and that the information contained therein is true. Some form of corroboration or independent proof will be required to "offset" the Board's negative conclusion on credibility.
[18] In its decision, the Board, notwithstanding the membership evidence presented at the hearing, found that the applicant is not an MDC member:
The claimant's relation of harmful incidents to him and the information from his father have all had as their underpinnings the alleged membership of the claimant in the MDC. Given my adverse findings on credibility and the unwillingness of the MDC to corroborate membership, I find on a balance of probabilities that the claimant is not an MDC member.
[19] Accordingly, I find that it was entirely within the scope of the Board's specialized expertise to determine what probative value should be attributed to the membership card and reference letter. I also find that it was not unreasonable for the Board to refuse to give any weight to these documents in view of the absence of corroboration or independent proof from the MDC's responsible authorities, and in view as well of the Board's adverse findings concerning the applicant's credibility.
Absence of Subjective Fear
[20] The Board also found that the applicant did not have a subjective fear:
It is the claimant's willingness to place before the panel untrustworthy evidence that causes the panel to find that he has concocted a story based on well-known objective evidence that MDC supporters sometimes fall victim to attacks by ZANU (PF) supporters. Since I have found on a balance of probabilities that the alleged harmful incidents did not occur, I find also that the claimant did not have within him a subjective fear upon leaving his country.
[21] As stated by Tremblay-Lamer J. in Maqdassy v. Canada (Minister of Citizenship and Immigration) 2002 FCT 182 at paragraph 10-11:
As I pointed out more recently in Tabet-Zatla v. Canada (Minister of Citizenship and Immigration), _[1999] F.C.J. No. 1778 at para. 6, the lack of evidence going to the subjective element of the claim is in itself sufficient for the applicant's claim to fail:
The lack of evidence going to the subjective element of the claim is a fatal flaw which in and of itself warrants dismissal of the claim, since both elements of the refugee definition - subjective and objective - must be met.
These comments were cited with approval in Vallipuram v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1519, and Fernandov v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1129.
[22] Accordingly, I conclude that the Board did not err in rejecting the applicant's claim based upon the adverse credibility findings and an absence of subjective fear.
ORDER
THIS COURT ORDERS that for the above reasons, this application for judicial review be dismissed.
Luc Martineau ____________________________
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-315-02
STYLE OF CAUSE: Mugwagwa Brian Kanyai v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 7, 2002
REASONS FOR ORDER
AND ORDER OF: The Honourable Mr. Justice Martineau
DATED: August 8, 2002
APPEARANCES:
Mugwagwa Brian KanyaiFOR THE APPLICANT
Tamrat GebeyehuFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Morris RosenbergFOR THE RESPONDENT
Deputy Attorney General of Canada
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