Docket: IMM-4479-11
Citation: 2012 FC 616
Ottawa, Ontario, May 22,
2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
|
|
FRANCIS RUSERE CHIKEREMA
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board), dated June 16, 2011.
The Board found that the Applicant, Francis Rusere Chikerema, was not a
Convention refugee or person in need of protection under sections 96 and 97 of
the Immigration and Refugee Protection Act, SC 2001, c 27.
[2]
For
the reasons set out below, the application is dismissed.
I. Facts
[3]
The
Applicant is a citizen of Zimbabwe. He was a member of
the Zimbabwe African People’s Union (ZAPU). He alleged that the Zimbabwe
African National Union – Patriotic Front (ZANU-PF) perceived him as a supporter
of an opposition party, such as the Movement for Democratic Change (MDC),
and destroyed his property.
[4]
He
left Zimbabwe for the
United States (US) in 2001. He made an asylum claim but remained in the
country illegally for eight years. He alleged that during this period he created
the United National Democratic Alliance (UNDA) as an opposition political party
in Zimbabwe.
[5]
On
February 25, 2009, the Applicant came to Canada and made a
refugee claim based on a history of political involvement.
II. Decision under Review
[6]
The
Board found no persuasive evidence that the Applicant was politically active
prior to moving to the US in 2001. He would be expected to have a
membership card or some document to display his loyalty to the party. Moreover,
there was no persuasive evidence that UNDA is a recognized and legitimate party
in opposition to the ZANU-PF. The Board did not accept the Applicant’s claim
that he was mentioned as a suspect in connection with a bombing of a police
station in Harare as he did
not have a copy of the newspaper article referring to him. It also attributed
little weight to letters discussing his involvement with UNDA.
[7]
The
Applicant’s failure to make an asylum claim in the US in a timely
manner added support to the Board’s finding that he lacked subjective fear.
[8]
While
the Board acknowledged that the ZANU-PF demonstrates hostility towards certain
opposition party members and there is instability within the government, it
found the Applicant “has never been involved in politics, he has been
outside the country for eight years and has made no effort to be involved
politically on any level as a member of the diasporas therefore he has
no allegiance to either party at this time.”
[9]
The
Board concluded:
Since the claimant has been
unable to persuade the panel with reliable and trustworthy evidence that he has
had in the past or possesses in the present any political profile in Zimbabwe, I find that, even taking
into consideration the current situation in Zimbabwe, his claim to a fear of persecution on
political grounds is not well-founded. Therefore, the claimant does not face a
serious possibility of persecution nor does he face a danger of torture or
serious harm should he return to Zimbabwe.
III. Issues
[10]
The
Applicant raises the following issues:
(a) Did
the Board ignore evidence?
(b) Did
the Board make unreasonable findings?
IV. Standard
of Review
[11]
Questions
of fact, discretion and policy as well as questions where the legal issues
cannot be easily separated from the factual issues generally attract a standard
of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at para 51). The Court will only intervene where the decision
fails to demonstrate justification, transparency and intelligibility or falls
outside the range of acceptable outcomes (Dunsmuir, above at para 47).
V. Analysis
[12]
The
Applicant asserts that the Board ignored evidence as to his past political
activities, including informal support for opposition groups. These details
were documented in his Personal Information Form (PIF) and oral testimony. There
was also information regarding his father’s political involvement in Africa. He
was never asked to explain why he did not approach MDC or ZAPU offices.
[13]
According
to the Applicant, there is a presumption of truthfulness (Maldonado v Canada
(Minister of Employment and Immigration), [1980] 2 FC 302 (CA)). The Board
did not identify any inconsistencies in his testimony and has a duty to explain
why it did not take all of this evidence into consideration.
[14]
However,
I must agree with the Respondent that the Board’s analysis of his past
political activities was reasonable in the circumstances.
[15]
The
primary concern was a lack of corroborating evidence of his history of
political involvement and alleged incidents of property destruction. While the
Board specifically referred to a membership card, it also considered the
possibility of some other document that would support his claims. The Board
“may take account of the absence of corroborative evidence in circumstances
where one would expect it to exist” (see Adu v Canada (Minister of
Employment and Immigration), [1995] FCJ no 114 (CA); Canada (Minister of
Citizenship and Immigration) v Bacsa, 2005 FC 1376, [2005]
FCJ no 1803 at para 8).
[16]
In
addition, the Board acknowledged the past political profile of the Applicant’s
father. As the Respondent notes, there is no reference in related documentary
evidence to the Applicant. Although the Applicant presumes this evidence will
lead the Board to the conclusion that he is also politically active, a
different, yet reasonable, outcome does not suggest this evidence was ignored.
[17]
In
general, the Applicant was aware that credibility was an issue for the Board. There
is no requirement for the Applicant to be made aware of vagueness or specific
weaknesses identified in the assessment of his claim (see for example Kutuk
v Canada (Minister of Citizenship and Immigration), [1995] FCJ no 1754 at para
7; Khorasani v Canada (Minister of
Citizenship and Immigration), 2002 FCT 936, [2002] FCJ no 1219 at para
35). The Board was ultimately not persuaded of his past political profile
given the lack of “reliable and trustworthy evidence.”
[18]
The
Applicant further alleges that the Board ignored evidence as to his involvement
in the founding of UNDA and unreasonably concluded that he was not politically
active. He points to letters provided from members of UNDA, his blog, and the
letters purportedly written to Zimbabwean President Robert Mugabe. Given all
of the evidence related to his efforts to register the UNDA as a party and to
express political opposition, he maintains that the Board should not have
dismissed his current political activities.
[19]
Letters
related to his involvement in UNDA were, however, given relatively detailed
consideration. The Board simply accorded them lesser weight than would be
preferred by the Applicant. That is not a basis on which the Court can
intervene.
[20]
The
Applicant’s suggestion that other documents were not specifically mentioned
similarly does not amount to a reviewable error (see Hassan v Canada (Minister of
Employment and Immigration) (1992), 147 NR 317, [1992] FCJ no 946 (CA)). As
the Respondent maintains, it was unclear if the Applicant’s blog had been
updated since its creation or if letters to Mugabe were actually sent to or received
by him. Lacking sufficient credible evidence, the Board was justified in
casting doubt on the nature of the Applicant’s current political involvement.
[21]
As
regards the Board’s consideration of the delay in claiming in the US, I see no
issue with the overall approach. Delay is a relevant factor in the Board’s
assessment of the Applicant’s claim (Duarte v Canada (Minister of
Citizenship and Immigration), 2003 FC 988, [2003] FCJ no 1259). More
recent jurisprudence goes as far as to suggest that delay can be fatal to a
claim, absent a satisfactory explanation, even where the credibility of an
applicant’s claims has not otherwise been challenged (see Velez v Canada
(Minister of Citizenship and Immigration), 2010 FC 923, [2010] FCJ no 1138
at para 28).
[22]
In
this case, the Board merely suggested that the delay in claiming in the US supported
previous findings. It stated the Applicant’s “failure to claim in a timely
manner, or to even make efforts to find out if a claim was possible earlier,
while living in a democratic nation which accepts refugees, supports my finding
that he did not possess a subjective fear of persecution” and “this adds
support for my finding of a lack of credibility to the overall claim.”
[23]
The
Applicant takes issue with this finding because it does not specifically
address his explanation for the delay in making a claim. However, that is not
what occurred in this instance. While the Board’s finding regarding delay does
not refer back to his explanations, they were addressed at the outset of the
decision. The Board states the Applicant thought he “had missed his
opportunity to apply for asylum.” He was also “afraid to apply as he was aware
that other Zimbabweans who had been living illegally were deported back to Zimbabwe.”
[24]
The
finding of Justice James O’Reilly in Jumbe v Canada (Minister of Citizenship
and Immigration), 2008 FC 543, [2008] FCJ no 691at para 12 that “it was not
enough for the Board simply to state that the failure to claim elsewhere, in
itself, proved an absence of subjective fear” does not apply to the Board’s
merely supportive finding of delay in a different facts scenario involving
Zimbabwe. Moreover, the Board was entitled, after considering his
explanations, to consider them insufficient (see Sinan v Canada (Minister of
Citizenship and Immigration), 2004 FC 87, [2004] FCJ no 188
at para 10).
[25]
Contrary
to the Applicant’s submissions, the Board also considered his argument that he
would be compelled to speak out regarding his political beliefs once in Zimbabwe and this
would put him at risk. The Board found there was “no corroborative evidence
describing his civil society activities or any examples of his willingness to
speak out for human rights.” It proceeded to discuss documentary evidence that
those who are not politically active are not at risk of mistreatment. The
Board’s concern was the lack of corroborating evidence of his political
activities. As the Respondent suggests, the Applicant’s position is
contradictory. He wants recognition as a refugee in Canada because of
his political beliefs but at the same time insists if he returns he will have
to formally advocate for those beliefs, presumably putting him further at risk.
VI. Conclusion
[26]
The
Applicant has not demonstrated that the Board ignored material evidence or
otherwise made unreasonable findings regarding his past and present political
profile. As a consequence, his application for judicial review is dismissed.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application for judicial
review is dismissed.
“ D.
G. Near ”
Email this Content