Date: 20070216
Docket: IMM-1596-06
Citation: 2007 FC 181
Ottawa, Ontario, February 16,
2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
TICHAMUKA
JEAN MUSIYIWA
Applicant
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 (IRPA) for judicial review of the
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board) dated March 1, 2006, which determined that the applicant was
neither a Convention refugee nor a person in need of protection.
[2]
The
applicant requests that the decision be set aside and the matter remitted for
redetermination by a differently constituted panel of the Board.
Background
[3]
The
applicant, Tichamuka Jean Musiyiwa, is a thirty-six year old citizen of Zimbabwe. She alleged
having a fear of persecution due to her political opinion and as a failed
asylum seeker. The applicant set out the circumstances leading to her claim for
protection in the narrative portion of her Personal Information Form (PIF).
[4]
The
applicant joined the Movement for Democratic Change (MDC) in January 2000,
after being introduced to the party by a friend. The MDC was the main
opposition party in Zimbabwe. The applicant obtained an MDC membership card
and attended party meetings. She explained that MDC members were routinely
arrested, beaten, and tortured by the government and ruling party (ZANU-PF) for
their involvement in the opposition. The applicant also claimed that ZANU-PF
actively sought out individuals who had returned to Zimbabwe from abroad.
[5]
The
applicant testified that she had not been harassed for her involvement with the
MDC until she was arrested for participating at a party rally on April 17,
2004. There were about thirty other women at the rally and they scattered when
the police intervened. The applicant and three other women were detained for
three days and were generally ignored by their captors. They were then released
without charges. Two of her fellow activists went missing after being released,
and the applicant never found out what happened to them. Their disappearance
caused her to become fearful and motivated her to escape from Zimbabwe.
[6]
She
applied for a one-year visa to the United States on May 6, 2004, and
left Zimbabwe on May 26,
2004. The applicant arrived in the United States, via Germany, in July
2004. She left her two young children in Zimbabwe in the care of
her parents and ex-husband. The applicant explained that she wished to help her
children eventually flee Zimbabwe. The applicant lived in
the United
States
from July 2004 until September 2005, and explained that she did not seek asylum
while there as she could not afford the legal fees quoted. The applicant
arrived in Canada on September
28, 2005 and immediately claimed refugee status. The refugee hearing was held
on February 22, 2006, and her claim was refused by decision dated March 1,
2006. This is the judicial review of the Board’s decision.
Board’s
Reasons
[7]
The
Board determined that the applicant was not a Convention refugee, as she did
not have a well-founded fear of persecution on a Convention ground. The Board
also found that she was not a person in need of protection. The determinative
issue was the well-foundedness of her fear. The Board also considered her
failure to claim asylum in the United States. The claimant failed to
demonstrate on a balance of probabilities that she faced a serious possibility
of persecution if she returned to Zimbabwe. The applicant
testified in a forthright manner and stated that she feared: (1) the unstable
situation in Zimbabwe; (2) being
recognized as a former detainee; (3) for her safety after being informed that
her colleagues went missing; and (4) being detained and interrogated as a
failed asylum seeker.
[8]
The
Board was not satisfied that the applicant had demonstrated that she faced a
serious possibility of persecution if returned to Zimbabwe. Her
subjective fear was not objectively supported. Her explanations did not satisfy
the Board that there was a serious possibility that she would come to the
attention of the authorities if she returned to Zimbabwe. The police
did not know her name and absent evidence regarding the disappearance of her
colleagues, there was nothing to suggest that their disappearance was caused by
the authorities. Even if there was evidence that the authorities were involved
in their disappearance, the police did not have the applicant’s name and it was
implausible that she would come to their attention if she returned.
[9]
The
Board found it speculative that the applicant faced a serious possibility of
coming to the attention of the authorities as a failed refugee claimant. There
was documentary evidence regarding the poor treatment of deportees from the United
Kingdom
which indicated that President Mugabe disliked Britain. Because of
its peculiar factual context, the Board did not find that the article supported
her fear of persecution as a failed refugee returning from Canada. The test
set out in Canada (Attorney
General)
v. Ward, [1993] 2 S.C.R. 689, (1993) 103 D.L.R. (4th) 1, required that a
refugee claimant’s subjective fear have an objective basis.
[10]
The
Board concluded that on a balance of probabilities, the applicant’s fear was
grounded in the unstable socio-economic conditions in Zimbabwe. This fear
was faced by others in Zimbabwe and was described in
the documentary evidence. However, there was no serious possibility that the
applicant would come to the attention of the authorities, and there was
therefore no objective basis for her fear of persecution. The Board noted that
mere possession of an MDC card did not constitute a well-founded fear of
persecution. Also, there were many MDC supporters still living in Zimbabwe. The Board
considered her delay in claiming refugee protection and found that her lack of
effort to find a way to seek asylum in the United States was
inconsistent with her subjective fear.
Issue
[11]
The
applicant submitted the following issue for determination:
Whether the
Board proceeded on improper principles and based its decision on erroneous
findings of fact made in a perverse or capricious manner without regard to the
material before it and/or whether the Panel’s assessment of the totality of the
evidence is patently unreasonable and thereby subject to review.
[12]
I
would rephrase the issue as follows:
Did the
Board err in finding that the applicant did not have a well-founded fear of
persecution?
Applicant’s
Submissions
[13]
The
applicant submitted that where the Board bases its decision upon findings of
fact wholly unsupported by the evidence, draws inferences that are
unreasonable, misstates the facts, or ignores relevant evidence, its decision
should be overturned. The applicant submitted that the Board engaged in a
perverse assessment of the evidence and that its decision was based upon
speculation and unwarranted inferences. It was submitted that the Board
misconstrued the facts and did not provide her with a fair hearing. The applicant
also submitted that the Board committed errors of law in assessing her claim.
[14]
The
Board focused upon whether the applicant would come to the attention of the
authorities. It was submitted that the Board failed to appreciate that even if
she did not come to the attention of the authorities, she would face
persecution by other groups such as war veterans, the youth militia, or ZANU-PF
members. The documentary evidence demonstrated that these groups were
persecuting opposition members such as the applicant. The applicant submitted
that the Board erred in finding that she was not an active MDC member. It was
clear that she had attended meetings and was not an inactive member who might
not be noticed by agents of persecution.
The Board relied upon
the fact that there were MDC supporters in Zimbabwe in order to
impugn the well-founded nature of her fear. It was submitted that this
consideration was irrelevant and there was no evidence that MDC members were
not facing persecution. The applicant submitted that some MDC members may have
the courage to remain in Zimbabwe and face persecution
longer than less daring people. It was submitted that there was evidence that
all MDC members were at risk.
[15]
The
applicant submitted that the Board’s finding that she did not look for viable
methods to claim asylum in the United States was patently
unreasonable. It was submitted that this finding was premised upon an
unsupported assumption that the applicant was knowledgeable about the
availability of such information on the internet. The applicant submitted that
the Board perversely rejected her valid explanation for failing to seek asylum
earlier.
Respondent’s
Submissions
[16]
The
respondent submitted that the Board’s determination that a refugee claimant’s
fear of persecution was not well founded was a question of fact reviewable on
the standard of patent unreasonableness (see Federal Courts Act, R.S.C.
1985, c. F-7, paragraph 18.1(4)(d)). It was submitted that the applicant failed
to demonstrate that the Board’s finding in this regard was patently
unreasonable.
[17]
The
respondent submitted that the Board’s use of the term “authorities” encompassed
all agents of persecution. It was submitted that this inference may be drawn
from the fact that the applicant’s PIF narrative and counsel’s submissions
referred to these agents of persecution, as did the documentary evidence. Given
that the Board is presumed to have considered all of the evidence before it,
the respondent submitted that it was reasonable to presume that the term “authorities”
referred to all agents of persecution in Zimbabwe (see Florea v. Canada (Minister of Employment
and Immigration),
[1993] F.C.J. No. 598 (QL) (F.C.A.)). It was submitted that this interpretation
found support within the Board’s reasons, which distinguish between the
narrowly construed “police” and the broadly construed “authorities”.
[18]
The
respondent submitted that by the applicant’s own admission, her activities with
the MDC were “nothing major”. It was submitted that she fit the profile of an
ordinary MDC member, who did not face a serious risk of persecution. The
respondent submitted that the applicant bore the onus of demonstrating a
well-founded fear of persecution, not the Board (see Khan v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1183). It was submitted that the
documentary evidence did not suggest that all MDC members faced a well-founded
fear of persecution regardless of their profile. The applicant never
experienced problems due to her MDC membership until her detainment, during
which she was ignored and her name was not recorded. There was no evidence that
anyone was searching for her in Zimbabwe. Therefore, her experience did not demonstrate
that every MDC member faced a well-founded fear of persecution. In addition,
she did not testify that she would be politically active if she returned to Zimbabwe.
[19]
The
respondent submitted that it was open to the Board to weigh the evidence and
find that she did not have a well-founded fear of persecution on account of her
political opinion. It was submitted that disagreements with the weighing of
evidence did not afford a legal basis upon which the Court might intervene (see
Brar v. Canada (Minister of
Citizenship and Immigration), [1986] F.C.J. No. 346 (QL) (F.C.A.)).
[20]
The
respondent submitted that it was the applicant’s lack of initiative in failing
to investigate the American asylum process by any means which was detrimental
to her subjective fear. It was submitted that the applicant was attempting to
reverse the onus of proof, in that she argued that the Board was required to
prove that she was knowledgeable about the availability of this information.
The respondent submitted that the applicant bore the onus of establishing that
she was not knowledgeable in this regard, which she did not do. While the
applicant’s affidavit indicated that she was not knowledgeable about the
availability of such information, she did not testify to this effect. It was
submitted that the Court should be loathe to consider fresh evidence, since
this application for judicial review is not an appeal de novo (see Lubega
v. Canada (Minister of
Citizenship and Immigration) (2006), 147 A.C.W.S. (3d) 292, 2006 FC 303).
[21]
The
respondent submitted that the Board may disbelieve the credibility of an
applicant’s claim where there has been delay in claiming refugee status (see Heer
v. Canada (Minister of Employment
and Immigration),
[1988] F.C.J. No. 330 (QL) (F.C.A.)). It was submitted that the Board was
entitled to reject her explanation for the delay, given her personal
circumstances. The respondent submitted that the lack of evidence going to the
subjective element of her claim was sufficient for it to fail. It was submitted
that no different result could be reached on a rehearing, therefore the
application should be dismissed.
Analysis and
Decision
Standard of
Review
[22]
The
standard of review applicable to the Board’s determination that the applicant’s
fear of persecution was not objectively well-founded is that of patent
unreasonableness (see Hasan v. Canada (Minister of
Citizenship and Immigration) (2004), 134 A.C.W.S. (3d) 1063, 2004
FC 1537).
[23]
Issue
Did the
Board err in finding that the applicant did not have a well-founded fear of
persecution?
The Board
determined that on a balance of probabilities, the applicant’s fear of
persecution was based upon deteriorating socio-economic conditions in Zimbabwe. The Board
also found that on a balance of probabilities, there was no objective basis for
her fear of persecution if she returned to Zimbabwe. In Ward
above, the Supreme Court of Canada held that in order to establish a
fear of persecution, refugee claimants must subjectively fear persecution, and
this fear must be objectively well-founded.
[24]
The
Board found that the applicant was forthright in her testimony. It appears that
she was a member of the MDC and had been detained following a rally in April
2004. The applicant became an MDC member in 2000, and had not experienced any
problems until her detainment in April 2004. Although she owned a membership
card, attended meetings, and participated in one rally, she described her
involvement in the party as “nothing major”. The Board noted that there was no
evidence that her colleagues had disappeared as a result of action by the
authorities. In addition, the police did not record her name when she was
released.
[25]
The
applicant submitted that the Board erred by failing to address her fear of
other agents of persecution, including war veterans, the youth militia, and
ZANU-PF members. I agree with the respondent that as demonstrated in its
reasons, the Board’s use of the term “authorities” encompassed agents of
persecution other than the police.
[26]
The
Board’s reasoning regarding the objective basis of the applicant’s claim was
articulated in part as follows:
[. . .] While she may have a subjective
fear, she has not demonstrated that there is an objective basis to this fear. None
of her explanations satisfy me that a serious possibility exists that she would
come to the attention of the authorities she claims to fear if she returned
to Zimbabwe. By her own admission, the
police did not even know her name from that single incident in April 2004. With
respect to the two women that she heard were missing, absence any more concrete
evidence than she was able to provide, there is nothing to suggest on a balance
of probabilities that their being missing is attributable to some action of the
authorities…Further, by the claimant’s own testimony, she was not an active
member of the MDC, other than her attending some meetings, and before April
2004, had no dealings with the police or the authorities.
…
In view of the foregoing analysis, I find
on a balance of probabilities that the claimant’s fear is grounded in the
unstable society and deteriorating social and economic conditions, about which
the claimant is apprehensive should she return to Zimbabwe. It is aptly captured in the documentary
evidence in articles such as the recent Amnesty International Report on Zimbabwe. However, I find on a balance
of probabilities that there is no serious possibility that the claimant
would come to the attention of the authorities, and I therefore find that
there is no objective basis for the claimant’s fears that she would face
persecution if she returned to Zimbabwe.
(Emphasis Added.)
[27]
The
Board appears to have considered the objective basis of the applicant’s claim
from the perspective that it was unlikely that she would come to the attention
of the authorities due to her detainment. In my view, the Board erred in
considering the objective basis of her claim in this narrow context. The
applicant also stated that she feared persecution for other reasons. The notes
taken by the immigration officials indicated that the applicant feared
persecution based on the following:
C. What are you afraid of if you returned
to your country?
I’m afraid of the ruling party (ZANU-PF).
I’m afraid of imprisonment & persecution. I was arrested because I was at a
meting that was considered illegal to them (Movement for Democratic Change
meeting). They held us for three days. There were some people that were taken
away & never seen again. After this incident I planned to leave the
country.
D. Whom are you afraid of if you
returned to your country?
Police, youth army (ZANU-PF).
(Tribunal record at page 81)
[28]
The
documentary evidence includes the following statements about Zimbabwe at pages 117
and 118 of the tribunal record:
The perpetrators of torture, according to
experts, include agents of Mugabe’s Zimbabwe African National Union-Patriotic
Front (ZANU-PF) political party, police officials, agents of the Central
Intelligence Organization, and, recently, members of the pro-Mugabe youth
militia, who appear to have been schooled in torture methods.
. . .
Torture has been rampant since 1999 and
has been used primarily against members and suspected members of the MDC, the
main political party opposing Mugabe’s presidency. Commercial farm workers,
journalists, and others have also fallen prey. Indeed, it has become an
unbroken cycle, used by the regime to control populations and suppress
opposition to Mugabe and to democratization.
. . .
Rape cases, which Reeler said could only
be described as “political rape” are prevalent. The victims are typically women
who belong to MDC, are married to MDC members, or are so suspected. Their
attackers tell them that is why they are being raped. The prevalence of this is
hard to document, however, because rape victims seldom come forward and report
the assaults.
[29]
The
applicant was an MDC member and the Board did not address the objective basis
of her claim as an MDC member. As the documentary evidence shows, MDC members
were being persecuted. The Board ought to have considered the objected basis of
her claim based on the fact that she was an MDC member. I am of the opinion
that the Board committed a patently unreasonable error.
[30]
As
a result, I am of the opinion that the Board made a patently unreasonable error
in finding that the applicant lacked an objective basis for her claim.
[31]
I
need not deal with the other points raised in argument.
[32]
The
application for judicial review is therefore allowed and the matter is referred
to a different panel of the Board for redetermination.
[33]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[34]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is referred to a different panel of the Board for redetermination.
“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.:
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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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