Date: 20070307
Docket: IMM-2597-06
Citation: 2007
FC 261
Toronto, Ontario, March 7, 2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
CHIEDZA MELODY NDUDZO
DONHODZO THANDIWE NDUDZO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The Principal Applicant, Chiedza Melody Ndudzo,
is a citizen of Zimbabwe who
bases her Convention refugee claim on an alleged fear of persecution by reason
of her political opinion. In a decision dated April 20, 2006, a panel of the
Immigration and Refugee Board, the Refugee Protection Division (the Board)
determined that the Principal Applicant and her daughter (who is a citizen of
the United States) were neither
Convention refugees nor persons in need of protection. The Applicants seek
judicial review of that decision.
Issues
[2]
The Applicants raise the following issues:
1.
Did the Board err with respect to its finding
that the evidence with respect to the alleged attack of March 15, 2000 was
implausible?
2.
Did the Board err in ignoring other evidence
before it or it failed to give adequate reasons for rejecting that evidence?
3.
Did the Board err with respect to its findings
that the Principal Applicant had acted in a manner inconsistent with that of
persons fearing persecution or that the Principal Applicant had shown a lack of
subjective fear?
Background
[3]
The Principal Applicant is a citizen of Zimbabwe and a member of the Movement for
Democratic Change (MDC) Party in that country. The ruling party is the Zimbabwe
African National Union – Patriotic Front (Zanu-PF). She claims that she was
harassed by the Zanu-PF. She described an incident in January 2000 when she was
arrested and detained by the police, apparently because of her possession of an
MDC membership card. In March 2000, during her attendance at an MDC rally, she
was attacked by a gang of Zanu-PF members. The last incident before her flight
from Zimbabwe was an attack by
members of the Zanu-PF in her home, on March 15, 2000. She left Zimbabwe for the United States in May 2000
where she resided until coming to Canada with her American-born daughter in September 2005.
[4]
The Board dismissed her claim, primarily on the
basis of a lack of credibility. The Board did not believe her story of being
attacked in her home in March 2000 by members of the Zanu-PF. The key reasons
appear to have been that:
• The
Board did not accept as plausible the Principal Applicant’s story that the
Zanu-PF thugs left the house, without harming the Principal Applicant, after
seeing the Principal Applicant’s mother’s uniform. The Board also did not
accept that the Zanu-PF thugs would not report the mother to the government
authorities. The mother works for the government as a member of the army. As
stated by the Board:
As a well-known
army officer in the neighbourhood, the panel finds it more likely than not ,
[the mother] would have been perceived as having betrayed the government she
served by harbouring MDC supporters in her home, especially so that the
supporters are her own daughters. Further, the panel finds it implausible that
if the principal claimant’s mother was so clearly identifiable by the Zanu-PF,
that she would still be working in the government six years later and without
having encountered any problems as a result of the March 15, 2000 incident.
• The
Board noted the Applicant’s inconsistent testimony on how many Zanu-PF invaders
came to the home.
[5]
The Board also concluded that the Principal
Applicant did not claim asylum in the United States during her five-year stay there “because of a lack of subjective
fear of returning to Zimbabwe”.
Analysis
[6]
Issues of credibility are factual findings that
will only be overturned if they are patently unreasonable. On this standard, the
Court will only intervene if the decision of the Board is perverse or
capricious or made without regard to the evidence (Federal Courts Act,
R.S.C. 1985, c. F-7, s. 18.1(4) (d); Brar v. Canada (Minister of Employment
and Immigration), [1986] F.C.J. No. 346 (F.C.A.); Tekin v. Canada
(Minister of Citizenship and Immigration), 2003 FCT 357 at para. 10).
[7]
I am not persuaded that the Board erred in its
finding on the March 15, 2000 home invasion. The Applicant submits that the
Board “engaged in a mode of speculation” in assessing the evidence and drawing
inferences. I do not agree. The Board considered the explanations of the
Applicant with respect to the March 2000 incident and provided clear reasons,
in its decision, why it rejected those explanations. While the Board drew some
inferences with respect to the plausibility of the Zanu-PF actions, it did so
with reference to and in the context of the documentary evidence concerning the
country conditions (see, Aguebor v. Canada (Minister of Employment and
Immigration), [1993] F.C.J. No. 732 (F.C.A.); R.K.L. v. Canada (Minister of Citizenship and
Immigration), [2003] F.C.J. No. 162, at para.14)
This was not a situation where the Board drew inferences without any factual
foundation. I do not find the Board’s findings on the March 15, 2000 event to
be patently unreasonable.
[8]
I am also satisfied that the Board was not
unreasonable in its finding that the Female Applicant’s failure to claim in the
United States showed a lack of
subjective fear. It is open to the Board to conclude that a failure to claim or
delay in claiming refugee protection weighed against her credibility (Gonzalez
v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No.
805). In this case, the Female Applicant’s explanations were considered and
rejected by the Board. I see no reason to intervene.
[9]
However, I have two concerns with the decision
of the Board. The first is that the Board found inconsistencies in the testimony
of the Female Applicant on the number of attackers during the home invasion.
Having reviewed the Personal Information Form (PIF) of the Female Applicant and
the transcript, I am satisfied that there was no inconsistency. The Board
erred. Nevertheless, this is a minor error that, in my view, was not
determinative of the issue of the credibility of the Female Applicant’s
version of the March 15, 2000 incident. My second
concern is more serious. There is no mention of – and certainly no analysis of
– the incidents in January 2000 and March 2000 and certain other evidence.
After dealing with the March 15, 2000 home invasion, the Board stated simply:
The panel is
cognizant that the principal claimant described some other events of alleged
harassment in her PIF narrative by Zanu-PF individuals. However, the panel has
found that a material part of the principal claimant’s story, the March 15,
2000 incident was seriously lacking in credibility for the above reasons
stated.
The Board
continues by quoting from the case of Sheikh v. Canada (M.E.I.), [1990]
3 F.C. 238 (F.C.A.):
I would add that
. . . even without disbelieving every word an applicant has uttered, a . . . panel
may reasonably find him so lacking in credibility that it concludes there is no
credible evidence relevant to his claim . . . In other words, a general finding
of a lack of credibility on the part of the applicant may conceivably extend to
all relevant evidence emanating from his testimony.
[10]
It appears that the Board, on the basis of its
finding on the March 15, 2000 incident, has made a general finding of lack of
credibility. In other words, by not being credible about this one incident, the
Principal Applicant is not to be believed on any element of her story. As a
result, the Board did not address or consider:
• the
incidents in January 2000 and March 2000 or explain why they were not
indicative of persecution; or
• the
Female Applicant’s evidence of her membership in the MDC; or
• the
documentary evidence concerning the treatment of MDC members in Zimbabwe.
[11]
There may be circumstances where a general
finding of lack of credibility could be reasonable drawn from an analysis of
one incident. In my view, this is not such a case. I agree with the Applicants
that, in this case, the Board should have dealt with the aspects of the claim
outlined above. Its failure to do so constitutes a reviewable error.
[12]
I have no way of knowing whether the conclusion
of the Board would have been different had it carried out a complete analysis.
Accordingly, I will allow the application for judicial review.
[13]
Neither party proposed a question for
certification. No question of general importance will be certified in this
case.
ORDER
THIS COURT ORDERS that
1. The application is allowed and the matter
referred back for re-determination by a different panel of the Board;
2. No question of general
importance is certified.
“Judith
A. Snider”
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