Date: 20071211
Docket: IMM-6250-06
Citation: 2007 FC 1300
Ottawa, Ontario, December
11, 2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
TAVONGA MUSAKANDA
BABRA MUSAKANDA NEE FROST
(a.k.a. BABRA MUSAKANDA)
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act) for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated November 2, 2006, which found that the applicants were
neither Convention refugees nor persons in need of protection.
The
applicants requested that the decision be set aside and the matter referred
back to a newly constituted panel of the Board for re-determination.
Background
[2]
Tavonga
Musakanda and his wife, Babra Musakanda (née Frost) (the applicants) and their
children, Glenn Tavonga Musakanda and Gregg Musakanda, are all citizens of Zimbabwe. As the
principal applicant, Tavonga Musakanda alleged that he had a well-founded fear
of persecution in Zimbabwe based on his perceived political opinion as a
supporter/member of the Movement for Democratic Change (MDC) and being deemed an
opponent due to decisions he made while working in the capacity of senior manager
at Trust Merchant Bank. The circumstances which led to the principal
applicant’s claim for refugee status were set out in the narrative portion of
his Personal Information Form (PIF).
[3]
During
1998 and 1999, a number of non-governmental organizations discussed forming a
common front to oppose the ZANU-PF, who were in power at the time in Zimbabwe. The
discussions culminated in the formation of the Movement for Democratic Change
in September 1999. As a result, many urban professionals including bankers were
targeted. The principal applicant alleged that during this time, anonymous
people appeared at his village demanding information about his background and
activities. Moreover, he alleged that government agents visited the bank where
he worked as a senior manager. The principal applicant alleged that the ZANU-PF
politicians were concerned about opposition supporters’ access to their bank
accounts and private information.
[4]
The
principal applicant alleged that in 2001 the ZANU-PF activists attacked
premises belonging to his brothers and assaulted his nephew, who suffered
serious injuries. The principal applicant alleged that his entire family then
held a special meeting and resolved that the principal applicant and his nephew
needed to flee Zimbabwe for their own safety. However, the principal
applicant appears to have continued to work at the bank. He alleged having
faced a number of difficulties during his work including receiving threats both
personally and to his supervisor.
[5]
In
April 2001, the principal applicant travelled to the U.S. on holiday.
The principal applicant alleged that while in the U.S., he received
notice from his supervisor that the Central Bank wanted to investigate him for
an alleged contravention of the exchange control guidelines. The principal
applicant alleged that his supervisor advised him not to return to Zimbabwe until he had
been cleared of the matter. The principal applicant eventually returned to the
bank after having been cleared of wrongdoing. He alleged that he found himself
under renewed pressure to do what the CIO operatives wanted. The principal
applicant resigned from his position at the Trust Merchant Bank in 2001 and
began working for the CFX Merchant Bank in April 2002. Due to his work at the
CFX Merchant Bank, the principal applicant alleged to have been labelled an
enemy of the government’s indigenization policy. The principal applicant
alleged that as a result of this labelling, his home was ransacked in February
2003. The principal applicant alleged making a report to the police, but it did
not yield any results as the matter was never investigated. The principal
applicant alleged that the threats against him regarding his work at the bank
continued and in fact escalated as major decisions regarding the bank’s future
were being contemplated.
[6]
The
principal applicant alleged that on July 2, 2005 plain-clothed police
unexpectedly appeared at his home and hauled him down to the police station.
The principal applicant alleged that he was accused of failing to stop when the
President’s motorcade passed, but he never saw the motorcade. The principal
applicant alleged that he was assaulted with a stick and punched.
[7]
In
2005, the principal applicant went to the U.S. where he was
legally entitled to remain for three months. The principal applicant alleged
that he did not file for refugee status in the U.S. because he
had been told that Zimbabwe nationals were routinely refused political asylum
and deported back to Zimbabwe. The applicants decided
to come to Canada and on
February 21, 2006 applied for refugee status at the Port of Entry. An
immigration hearing was held on September 20, 2006 and a decision rendered on
November 2, 2006. In its decision, the Board found that the adult claimants
were not Convention refugees, nor persons in need of protection. The Board
found the two minor claimants (the applicants’ two children) to be at risk of
being targeted by the youth militia and as such, found them to be Convention
refugees. This is the judicial review of the Board’s decision to refuse the
parents’ (the applicants’) applications.
Board’s
Decision
[8]
The
Board began its decision by enumerating the three central issues to the claims:
(1) credibility concerns arising from the principal applicant’s testimony, (2)
reavailment, and (3) failure to claim elsewhere.
[9]
With
regards to the principal applicant’s testimony, the Board found that he was
neither a credible nor trustworthy witness for the following reasons:
- The
Board found that it was highly implausible that a person being targeted by
the authorities would be able to rise through the ranks of the bank if he
was also being threatened by those in control.
- The
Board found it highly improbable that the applicant’s supervisor would put
himself at risk by providing a glowing representation of the principal applicant
who was seen to be anti-regime.
- The
Board was of the opinion that if the principal applicant was being
targeted by the current regime and high ranking officials, it was unlikely
that bank officials would clear his name of any wrongdoing in relation to
the investigation of alleged infractions of bank policy.
- The
Board found on a balance of probabilities that the principal applicant had
not been labelled as anti-ZANU-PF and was not being targeted as alleged,
in part because the principal applicant had failed to mention that he is a
member of the MDC in his CIC documents and his PIF.
- The
Board found the principal applicant’s story about being assaulted by
police officers a contrived one as it was highly implausible that the
police would release a person being watched and targeted for approximately
the last five years.
[10]
With
regards to the issue of re-availment, the Board found that taking into consideration
the alleged threats faced by the principal applicant, it was improbable that a
person being targeted would re-avail himself to the protection of the country
he fled. As such, the Board drew an adverse inference with respect to the principal
applicant’s subjective fear.
[11]
With
regards to the failure to claim refugee status elsewhere, the Board found the
principal applicant’s explanation that a lawyer had advised him not to, not to
be reasonable. The Board found that the principal applicant’s testimony
reflected a lack of subjective fear by not applying for protection.
[12]
For
all these reasons, the Board found that the applicants were not Convention
refugees, nor were they persons in need of protection. The Board went on to
address whether the applicants’ minor children were Convention refugees by
virtue of the risk of being targeted by the youth militia. The Board found that
the minor children were Conventions refugees.
Issues
[13]
The
applicants submitted the following issues for consideration:
- Did
the Board commit a major error when it failed to consider the fact that
there were compelling grounds for extending protection to all four members
of the Musakanda family?
- Was
the Board’s decision patently unreasonable in that it splits a family
apart?
[14]
I
would rephrase the issues as follows:
- What
is the appropriate standard of review?
- Did
the Board err in finding that the applicants were not Convention refugees,
nor persons in need of protection?
Applicants’
Submissions
[15]
The
applicants submitted that the Board committed a major error when it failed to
consider the fact that there were compelling grounds for extending protection
to all four members of the Musakanda family. The applicants also submitted that
the Board should have considered their eligibility as Convention refugees on
the basis of their membership in the particular social group of the family.
[16]
The
applicants also submitted that the Board’s decision is patently unreasonable
because it effectively splits a family apart. The applicants submitted that
under the terms of the decision, the minor sons are faced with an uncertain
future, deprived of the love, guidance and stability they require to assimilate
into Canadian society. The applicants submitted that to divide a functional
family in such a cruel and arbitrary manner represents a capricious and
perverse reading of the Act.
Respondent’s
Submissions
[17]
The
respondent submitted that the appropriate standard of review is patently
unreasonable (Pushpanathan v. Canada (Minister of Citizenship and Immigration),
[1998] 1 S.C.R. 982; Chen
v. Canada
(Minister of Citizenship and Immigration), [1999] F.C.J. No. 551).
[18]
The
respondent submitted that the law is well established that to be a Convention
refugee as a member of the familial social group, the risk must be directed
towards the applicant as a member of the family, and not simply towards their
family member. The respondent submitted that in the present case, there was no
evidence that the applicants (the parents) would be targeted by the youth
militia. One cannot be deemed to be 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). The family is only considered to be a social group
for the purposes of the Convention where there is evidence that the persecution
is taking place against the family members as a social group (Al-Busaidy v.
Canada (Minister of Employment and Immigration) (1992), 139 N.R. 208
(F.C.A)). Membership in the social group requires proof that the family itself,
as a group, is the subject of reprisals and vengeance (Canada (Minister of
Citizenship and Immigration) v. Bakhshi, [1994] F.C.J. No.
977 (F.C.A.); Granada v. Canada (Minister of Citizenship and
Immigration), [2004] F.C.J. No. 2164).
[19]
The
respondent submitted that these factors are not present in this case. The
principal applicant submitted his claim based on his fear of the ZANU-PF due to
his alleged activities related to his employment. The applicants have not challenged
any of the Board’s findings in this regard.
[20]
The
respondent submitted that this Court has held that the concept of family unit
is not part of the Convention and therefore, not part of the criteria to be
examined when determining whether an individual qualified as a Convention
refugee (Kanagaratnam v. Canada (Minister of Employment and
Immigration), [1994] F.C.J. No. 1069 (F.C.T.D.) at paragraph 12).
Analysis and
Decision
[21]
Issue
1
What is
the appropriate standard of review?
The
appropriate standard of review for overall determinations of the Board is
patent unreasonable (Chen above).
[22]
Issue
2
Did the Board
err in finding that the applicants were not Convention refugees, nor persons in
need of protection?
The
applicants submitted that the Board’s decision was patently unreasonable
because it failed to consider the applicants under the Convention refugee
social group of the family and because the Board’s decision effectively
separated the family. While I agree that the unfortunate reality is that the
Board’s decision has the potential to separate this family, I am bound by the
well-established law.
[23]
As
the respondent submitted, the jurisprudence is clear that one cannot be deemed to
be a Convention refugee because one has a relative who is being persecuted (Devrishashvili
above at paragraph 9). Moreover, the family is only considered to be a social
group for the purposes of the Convention where there is a nexus between the
persecution and the Convention ground, (Al-Busaidy above). There was no
evidence before the Board that this was the case. The principal applicant’s
refugee application was based on his perceived political opinion. The minor
claimant applicants were assessed on the risk of them being recruited by the
youth militia in Zimbabwe. There was no evidence
before the Board that the family as a unit was being persecuted. Consequently,
I find that this aspect of the Board’s decision was not patently unreasonable.
[24]
As
for the applicants’ submission that the decision is patently unreasonable because
it effectively separates the family unit, this is not one of the considerations
that the Board must make in determining a claimant’s application. As Justice
Rothstein held in Kanagaratnam above at paragraph 12:
While
in the broadest sense, Canada's refugee policy may be founded on
humanitarian and compassionate considerations, that terminology in the
Immigration Act and the procedures followed by officials under it, has taken on
a particular connotation. Humanitarian and compassionate considerations normally
arise after an applicant has been found not to be a Convention refugee. The
panel's failure to consider humanitarian and compassionate factors in its
Convention refugee determination in this case was not an error.
The Board did not err in
failing to consider the separation of the family unit.
[25]
The
applicants also submitted at the hearing of this matter, that the Board failed
to consider the profile of the principal applicant, namely, that he is a senior
banker and that government agents targeted such professionals. At the hearing,
the respondent stated that the decision of the Board concerning the credibility
of the applicants had not been challenged.
[26]
The
Board, at page 3 of its decision stated:
Credibility
The central issue in this claim are whether
it is credible that the principal claimant and his family members were being
targeted by Zanu-PF supporters.
a) because he is a member of the MDC
b) because he followed the bank’s
policies and refused to issue loans with any collaterals.
The panel finds the principal claimant to
be neither a credible nor a trustworthy witness.
[27]
The
Board then proceeded to address the allegations of the principal applicant that
he was being targeted because of his conduct as a banker and concluded that the
principal applicant was not being targeted as alleged. This disposes of the
principal applicant’s argument that the Board failed to consider his profile as
a banker.
[28]
The
application for judicial review must therefore be denied.
[29]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[30]
IT
IS ORDERED that the application for judicial review is denied.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (IRPA):
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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.
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.
(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.
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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.
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.
(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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