Date: 20090415
Docket: IMM-4774-08
Citation: 2009 FC 383
Ottawa, Ontario, April 15, 2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
NYENYE MANDIPA CHIYEDZA
MUNYATI
CHIDO TAGIRENYIKA MUNYATI
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to s. 72 (1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (Act) for judicial review of a decision of
a Board of the Refugee Protection Division of the Immigration Refugee Board
(Board), dated October 3, 2008 (Decision), refusing the Applicants’ claim to be
deemed Convention refugees or persons in need of protection under section 96
and section 97 of the Act.
BACKGROUND
[2]
The
Principal Applicant of the original application to the Board, Lucia Munotyei Munyati
(Ms. Munyati), is a citizen of Zimbabwe who was born on October
9, 1962. She divorced her husband, Nigel Munyati, in 1995, in Zimbabwe.
[3]
The
Male Applicant, Chido Munyati, was born January 8, 1985 and is a citizen of Zimbabwe. The Female
Applicant, Nyenye Munyati, was born February 13, 1989 and is also a citizen of Zimbabwe. The Male
and Female Applicants are the children of Ms. Munyati and the sole Applicants
on this judicial review. The Board has already found Ms. Munyati to be a
convention refugee.
[4]
In
November 1999, Ms. Munyati, in the course of her employment with Gainsborough
Estate agents in Harare, Zimbabwe, facilitated the
sale of a property, which had been earmarked for a Zimbabwe African National
Union-Patriotic Front (ZANU-PF) member, to an official of Movement for
Democratic Change (MDC). As a result, Ms. Munyati was suspended and later
dismissed from her employment.
[5]
Ms.
Munyati joined the MDC in November, 1999 and helped in fundraising for the
party prior to the June 2000 parliamentary elections. In July, 2000, Ms.
Munyati attended an MDC rally at Rufaro Stadium in Harare, Zimbabwe. She
was apprehended at the rally and taken to Mbare Police Station where she was
detained overnight. She was groped by men who had already been detained, and
one woman was raped.
[6]
Ms.
Munyati was frightened by this experience and decided to leave the country. She
went to the United Kingdom (UK) on September 17, 2000 and obtained a student
visa in 2001, but was unable to attend college because she could not afford the
fees. Instead, she worked illegally as a caregiver. She returned to Zimbabwe on July 21,
2002 to visit her mother who was ill with breast cancer. She then returned to
the UK on August
30, 2002.
[7]
Ms.
Munyati again returned to Zimbabwe on May 11, 2003, when
her mother’s condition deteriorated. She spent the day at the hospital and went
to her parents’ home in the evening. As she approached, she saw ten young men
waiting outside her parents’ house. They asked for money to support ZANU-PF. Ms.
Munyati declined to provide the men with money, explaining that she needed the
money to pay for her mother’s medical expenses and possibly her funeral
expenses. She was then accused of spying for the British and having plenty of
British currency. She refused to chant ZANU-PF slogans and denounce the MDC.
The youths began to beat her and continued until she fell down. They left her
when she pretended to pass out. After some time Ms. Munyati made her way into
the house where she called her brother. He took her to Harare Central Hospital.
[8]
Ms.
Munyati’s mother passed away on May 13, 2003. After the funeral, Ms. Munyati
went to live with her mother’s sister in Gandanzara village. She was unable to
raise the funds to return to the UK until September of
2003. During that time she had met a man called Itai Moyo and started a
relationship. This became a long distance love affair when she returned to the UK. Mr. Moyo
persuaded Ms. Munyati to return to Zimbabwe and possibly marry him.
[9]
Ms.
Munyati returned to Zimbabwe on an Emergency Travel Document in June of
2004. She found Mr. Moyo to be abusive. He also extorted money from her by
threatening to report her to the ZANU-PF. Ms. Munyati then applied for another
passport and returned to the UK in October of 2004. However, she resumed
her long distance relationship with Mr. Moyo.
[10]
While
in the UK, Ms. Munyati
attended MDC vigil meetings. In September 2005, Ms. Munyati’s ex-husband
sent their daughter to the UK to live with her. Mr. Moyo persuaded Ms.
Munyati to return to Zimbabwe, which she did on July
26, 2006. She did not take her daughter with her. At 10 p.m. on the night she
arrived, Mr. Moyo told her that he was going to make her pay for humiliating
him by running away. He then raped her and threw her out of the house. She made
her way to her sister’s home and her sister took her to a clinic the following
day. Ms. Munyati tried to file a report with the police but was told that she
should have made the report immediately. Ms. Munyati’s sister bought her a
plane ticket to go to the United States where her children
were. Ms. Munyati arrived in the US on August 3, 2006. She
and the Female Applicant came to Canada on August 11, 2006 and
made refugee claims that same day. The Male Applicant arrived in Canada on September
26, 2007 and made a refugee claim that same day.
[11]
Nigel
Munyati had moved to the US in 1999 and had taken his children with
him. He received a job offer in Africa in 2005 and sent the Female Applicant to
visit her mother for a few weeks in September 2005 when she was living in the United
Kingdom.
The Female Applicant never heard from her father again, so she stayed with her
mother.
[12]
The
Male Applicant received all of his secondary schooling and his business degree
in the United
States
between 2000 and 2007. The Female Applicant received all of her elementary and
middle school education, as well as part of her high school education, in the United
States
from 1999-2005. In 2005, when she joined her mother in the UK, she resumed her high
school education in the UK.
[13]
The
Applicants attended the hearing of their claims on August 25, 2008.
DECISION UNDER REVIEW
[14]
The
Board found that Ms. Munyati was a Convention refugee, but that the Female and
Male Applicant were not Convention refugees or persons in need of protection.
Male
Applicant
[15]
The
Board noted that the Male Applicant did not provide testimony at the hearing
beyond confirming his birth place. In his PIF, the Male Applicant claimed to
rely upon his mother’s narrative and claimed that he would be a target of
government forces in Zimbabwe who would use him to
get at his mother.
[16]
The
Board found that Ms. Munyati was a supporter of the MDC and that she had been targeted
by local ZANU-PF supporters. She was also at risk of being identified as an MDC
supporter by her former boyfriend, Mr. Moyo.
[17]
The
Male Applicant left Zimbabwe in 1999 and resided in the US before coming to Canada. There was
no evidence that he had any political affiliation and his sole basis for
needing protection was his association with his mother. The Board relied upon
documentary evidence for the proposition that people who return to Zimbabwe after a long
absence abroad may be subject to detention and enquiries at the airport.
However, this largely refers to returnees who file for asylum in the UK. The evidence
was that Ms. Munyati was known only as an MDC supporter in a localized area.
There was no more than a mere possibility that the Male Applicant would be
persecuted should he return to Zimbabwe, either upon arrival at
the airport or elsewhere.
Female
Applicant
[18]
The
Female Applicant also did not provide testimony at the hearing. In her PIF, she
stated that she was scared to return to Zimbabwe because of
what had happened to her mother and that she did not want the same thing to
happen to her. She also stated that she cannot live by herself or go back to Zimbabwe on her own.
[19]
The
Female Applicant went to the US in June of 1999 when her father relocated
there. She returned to Zimbabwe on three occasions:
July 2002, July 2003 and June of 2004 on family matters. There was no evidence
that she encountered any difficulties on any of these occasions, despite the
trouble her mother had in May 2003 when she was beaten for failing to
co-operate with ZANU-PF youths. There was also no evidence that the Female
Applicant has supported, or supports, the opposition in Zimbabwe, or that she
has been identified as an opposition supporter. The Board relied upon the same
documentary evidence as it did for the Male Applicant.
ISSUES
[20]
The
Applicants submit the following issues on this application:
1)
Did
the Board err in law in its interpretation and application of the definition of
a Convention refugee as defined in Section 96 of the Act?
2)
Did
the Board err in law in basing its Decision on an erroneous finding of fact
that was made in a perverse or capricious manner or without regard to the
material before the Board?
3)
Did
the Board render a Decision that is unreasonable having regard to the evidence
before it so as to amount to an error of law?
4)
Did
the Board err by ignoring evidence and misinterpreting the evidence including
testimony, documentary evidence and human rights records?
STATUTORY PROVISIONS
[21]
The
following provisions of the Act are applicable in these proceedings:
|
Convention refugee
96. A Convention refugee is a person who, by reason of a
well-founded fear of persecution for reasons of race, religion, nationality,
membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is
unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
(b) not having a country of nationality, is outside the country
of their former habitual residence and is unable or, by reason of that fear,
unwilling to return to that country.
Person in need of protection
97. (1) A person in need
of protection is a person in Canada whose removal to their country or countries of
nationality or, if they do not have a country of nationality, their country
of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of
torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual
treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself
of the protection of that country,
(ii) the risk would be faced by the person in every part of that country
and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless
imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide
adequate health or medical care.
Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed by
the regulations as being in need of protection is also a person in need of
protection.
|
Définition de
« réfugié »
96. A qualité
de réfugié au sens de la Convention — le réfugié — la personne qui, craignant
avec raison d’être persécutée du fait de sa race, de sa religion, de sa
nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit se trouve hors de tout pays dont elle a la
nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de
la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors
du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait
de cette crainte, ne veut y retourner.
Personne à protéger
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le
croire, d’être soumise à la torture au sens de l’article premier de la
Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements
ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de
la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Personne à protéger
(2) A
également qualité de personne à protéger la personne qui se trouve au Canada
et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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STANDARD OF REVIEW
[22]
Issues 1 and 2 deal with errors in law to which a standard of
correctness applies: Singh v. Canada
(Minister of Citizenship and Immigration) 2002 FCT
588 at paragraph 22.
[23]
Issue 3 deals with whether the Board rendered an unreasonable
Decision. The pre-Dunsmuir standard of review in relation to a refugee
board decision is outlined in Kathirkamu v. Canada (Minister of Citizenship
and Immigration), [2003] F.C.J. No. 592 (F.C.T.D.) as follows:
32 In
Aguebor, supra, the Federal Court of Appeal discussed the standard of review
for Refugee Division decisions at paragraph 4:
There is
no longer any doubt that the Refugee Division, which is a specialized tribunal,
has complete jurisdiction to determine the plausibility of testimony: Who is in
a better position than the Refugee Division to gauge the credibility of an
account and to draw the necessary inferences? As long as the inferences drawn
by the tribunal are not so unreasonable as to warrant our intervention, its
findings are not open to judicial review.
33 The Court should not
seek to reweigh evidence before the Board simply because it would have reached
a different conclusion. As long as there is evidence to support the Board's finding
of credibility and no overriding error had occurred, the decision should not be
disturbed.
[24]
Issue
4 deals with whether the board erred by ignoring or misinterpreting the
evidence, to which, pre-Dunsmuir, the standard of reasonableness simpliciter
has been applied: Al Yamani v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 433
(F.C.T.D.) at paragraph 20.
[25]
In Dunsmuir v.
New Brunswick, 2008 SCC 9,
the Supreme Court of Canada recognized that, although the reasonableness simpliciter
and patent unreasonableness standards are theoretically different, “the analytical
problems that arise in trying to apply the different standards undercut any
conceptual usefulness created by the inherently greater flexibility of having
multiple standards of review”: Dunsmuir at paragraph 44.
Consequently, the Supreme Court of Canada held that the two reasonableness
standards should be collapsed into a single form of “reasonableness” review.
[26]
The Supreme Court of Canada in Dunsmuir also held that the
standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to the particular question before the
court is well-settled by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless must the reviewing
court undertake a consideration of the four factors comprising the standard of
review analysis.
[27]
Thus, in light of the Supreme Court of Canada’s decision in Dunsmuir and
the previous jurisprudence of this Court, I find, with the exception of issues
1 and 2, the standard of review applicable to be reasonableness. When reviewing
a decision on the standard of reasonableness, the analysis will be concerned
with “the existence of justification, transparency and intelligibility within
the decision-making process [and also with] whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: Dunsmuir at paragraph 47. Put another way,
the Court should only intervene if the Decision was unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
ARGUMENTS
The Applicants
[28]
The
Applicants submit that the family is a recognized social group within the
meaning of Convention refugee: Al-Busaidy v. Canada (Minister of Employment
and Immigration), [1992] F.C.J. No. 26 (F.C.A.) (Al-Busaidy);
Pour-Shariati v. Canada (Minister of
Employment and Immigration), [1995]
1 F.C. 767 (F.C.T.D.); Casetellanos v. Canada (Solicitor General), [1995]
2 F.C. 190 (F.C.T.D.) (Casetellanos) and Serrano v. Canada (Minister
of Citizenship and Immigration), [1999] F.C.J. No. 570 (F.C.T.D.).
[29]
They
say that the Board erred in failing to consider whether or not the same
considerations that applied to their mother should apply to them; for example,
whether Mr. Moyo would out them if they were to return to Zimbabwe. The failure of the
Board to consider this possibility on the basis of the Applicants’ membership
in a particular social group is a serious error.
[30]
The
Applicants rely upon many of the documents that they submitted to the Board
which made it clear that one need not be an actual member of the opposition
party in Zimbabwe in order to face a serious possibility of persecution in that
country. One supporter in a family, or even a mere suspected or perceived
supporter, is enough. The Board failed to assess the Applicants’ claims on this
basis; particularly that as children of a member of the opposition party they
would be perceived or suspected of being supporters of that opposition party.
[31]
The
Applicants submit that the Officer’s failure to consider the claims on the
basis of membership in a particular social group is an error. The Applicants
rely upon Gutierrez v. Canada (Minister of Citizenship and Immigration)
(2000), 189 F.T.R. 274 (F.C.) at paragraphs 33 and 45:
33. It
was the CRDD's obligation to consider each of the Convention grounds advanced
by the applicants as the basis of their well-founded fear of persecution. This
proposition was made clear in Ward, supra, at 745.
…
45. As I
see it, the nexus issue in this case does not present itself as starkly as
counsel for the respondent would have it because it fails to take into account
the evidence before the CRDD. Counsel for the applicants points out the
applicants advanced the basis for a well-founded fear of persecution because of
membership in the Gonzalez family, led some evidence in respect of that fear
and the CRDD failed to consider that ground explicitly. I agree with that
submission. In the circumstances, it would be unwise and unprudent to go
further in the matter and make an assessment on the evidence or deal with
issues which may arise before the applicants' refugee claims are reconsidered.
[32]
The
Applicants concede that not all family members of a persecuted person are
automatically Convention refugees and that some link to Convention grounds is
required: Granada v. Canada (Minister of
Citizenship and Immigration) 2004 FC 1766.
[33]
The
Applicants conclude, however, that the link in this case is the perceived
political opinion; they are the children of a member of the opposition party in
Zimbabwe. The Applicants allege
that it is established in the documentary evidence that was before the Officer
that a mere suspicion of involvement in the opposition in Zimbabwe is sufficient to
attract persecutory consequences.
[34]
The
Applicants point out that nothing in the Respondent’s submissions deals with
the two errors identified by the Applicants. The Respondent simply seeks to
give reasons why the Board may have reached its conclusions, but such reasons
are not the reasons given by the Board.
The Respondent
The Panel
Did Not Err in Assessing the Applicants’ Claim
[35]
The
Respondent submits that the law is well established that, to be a Convention
refugee as a member of a familial social group, the risk must be directed
towards an applicant as a member of the family, and not simply towards a family
member: Musakanda v. Canada (Minister of Citizenship and Immigration) 2007
FC 1300 (F.C.T.D.).
[36]
There
was no evidence that the Applicants would be targeted by the ZANU-PF, or that
they were being sought due to their mother’s support of the MDC. The Female
Applicant had returned to Zimbabwe on three separate occasions and she had not experienced any
difficulties. One cannot be deemed a Convention refugee because one has a
relative who is being persecuted: Devrishashvili v. Canada (Minister of
Citizenship and Immigration), [2002] F.C.J. No. 1528 (F.C.T.D.).
[37]
The
family can only be considered to be a social group in cases where there is
evidence that the persecution is against the family members as a social group: Al-Busaidy;
Casetellanos; Addullahi v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1433
(F.C.T.D.) and Lakatos v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 657 (F.C.T.D.).
[38]
The Respondent says that membership in the
social group formed by the family is not without limitations and requires some
proof that the family in question is itself, as a group, the subject of
reprisals and vengeance, or that the Applicants are targeted and marked simply
because they are members of the family: Canada (Minister of Citizenship and
Immigration) v. Bakhshi, [1994] F.C.J. No. 977 (F.C.A.) and Granada v.
Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No.
2164 (F.C.). However, in this case, the Board considered the Applicants
potential risk and found that they would not be targeted, as the knowledge
about their mother’s support of the MDC was localized. Persecution against one
family member does not entitle all family members to be considered refugees: Pour-Shariati
v. Canada (Minister of Employment and Immigration), [1997] F.C.J. No. 810 (F.C.A.) and Marinova v. Canada
(Minister of Citizenship and Immigration) 2001
FCT 178.
[39]
The Respondent cites Casetellanos at paragraph 28 which
states that “[o]ne will not, for example, be deemed
to be a Convention refugee just because one has a relative who is being
persecuted.”
ANALYSIS
[40]
For
reasons given by the Respondent, I do not think that the Officer was wrong to reject
the Applicants’ claim that they were at risk simply because they were members
of the same family as Ms. Munyati. The Applicants were not living with their
mother and, even though the Female Applicant had visited Zimbabwe on three occasions,
there was no evidence that she had been targeted. See Granada v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 2164 at paragraph 16.
[41]
However,
the Board places a great deal of emphasis, at least as regards the Female
Applicant, on the fact that she returned to Zimbabwe on three occasions (in 2002, 2003 and 2004)
on family matters and experienced no problems.
[42]
What
this leaves out of account, however, in the important role played by Mr. Moyo,
the mother’s former boyfriend who persuaded Ms. Munyati to return to Zimbabwe in July 2006. The
mother’s fear of Mr. Moyo was that he would out her and that he would do the
same with her children in order to get back at her. The Officer accepted her
story and he also accepted that “there is now someone in the form of Mr. Moyo
who bears a good deal of animosity towards her and would no doubt not hesitate
to out her if he heard she had returned to Zimbabwe.”
[43]
Neither
of the Applicants has been in Zimbabwe since their mother’s relationship with Mr. Moyo finally
broke down and it became apparent that he had a great deal of animosity towards
Ms. Munyati and would not hesitate to out her. This was also an important risk
factor for the Applicants that the Officer overlooked. The Officer was
reassured by the fact that the Female Applicant had experienced no problems on
those occasions when she had returned to Zimbabwe in the past. But neither of the Applicants has
been to Zimbabwe since Mr. Mayo began
his vendetta.
[44]
The
Officer’s failure to appreciate this significant factor and to take it into
account in his reasons means that the Officer committed a reviewable error: Wei
v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 390
(F.C.T.D.); Mui v.Canada (Minister of Citizenship and Immigration),
[2003] F.C.J. No. 1294 at paragraph 28.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1. The
application is allowed and the matter is returned for reconsideration by a
different officer.
2. There is no
question for certification.
“James Russell”
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