Date: 20070515
Docket: IMM-2861-06
Citation: 2007
FC 518
Ottawa, Ontario, May 15, 2007
PRESENT: THE CHIEF JUSTICE
BETWEEN:
CEDRIC KONDWANI KAVALO
GLENDA SITHOLE
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
applicants are married and are citizens of Zimbabwe. In 2005, they sought refuge in Canada after living in the United States for some ten years.
[2]
In 1999,
Mr. Kavalo’s mother became ill. The applicants began sending funds to Mr.
Kavalo’s sister, Grace, in Zimbabwe to help pay for their
mother’s medical treatments. The funds were sent from the U.S. to Zimbabwe via Western Union.
[3]
During
that same period, Grace Kavalo is said to have become involved with the
Movement for Democratic Change (MDC), an opposition party in Zimbabwe.
[4]
In June
2000, Mr. Kavalo was advised that his sister Grace had been detained by the
Central Intelligence Operation (CIO) in Zimbabwe. She was beaten and threatened with
death while being questioned concerning her involvement with the MDC and the
source of the funds she had been receiving.
[5]
Shortly
after this incident, Grace Kavalo joined the applicants in the United States. She did not seek refuge in Canada with the applicants.
[6]
It is on
the basis of these allegations that the applicants seek refugee status. They
fear persecution from the ruling party in Zimbabwe as a result of Grace Kavalo’s
involvement with the MDC. The Refugee Protection Division determined that the
applicants’ allegations were not credible and that they had failed to establish
that they were Convention refugees or persons in need of protection. This proceeding
is the application for judicial review of that negative decision.
[7]
The
presiding member questioned Mr. Kavalo.
[8]
It was the
applicant’s view that the CIO knew, even before detaining Ms. Grace Kavalo,
that she was receiving funds. In the port of entry notes, the immigration
officer attributed the following statement to Mr. Kavalo concerning his sister:
“She was asked why the money was coming in but was not showing up in the bank
account at any time”. Under questioning during her detention, Ms. Kavalo
disclosed that the funds were being sent by the applicants.
[9]
On review
of the refugee hearing transcript, it can be readily understood that Mr. Kavalo
was suggesting the CIO knew of his sister’s receipt of funds as the result of information
it had intercepted from Western
Union.
[10]
It was not
unreasonable for the tribunal to be concerned with the applicants’ inability to
produce any documentation from Western Union to confirm that funds had been
transferred some five years ago. In view of the position asserted by the
applicants, it could be expected that the tribunal would canvass the issue of Western Union’s security procedures.
[11]
The
presiding member questioned why the CIO would interrogate Ms. Kavalo if it had
previously obtained the relevant information concerning the transfer of funds
through Western Union. Counsel for the applicant ably argued that the CIO was
determined to obtain further confirmation from Ms. Kavalo. In my view, however,
the tribunal did not commit a reviewable error in questioning the plausibility
that the CIO could have become aware of the particulars of the transfers, if
they in fact occurred. The applicants provided no further explanation beyond
mere speculation.
[12]
The
applicants’ reliance on Ms. Kavalo’s affidavit, signed in Texas one month prior to the refugee hearing, does
not explain why arrangements were not made to have her testify via
videoconference to bolster further the applicants’ case. There is no reviewable
error in the tribunal’s decision not to attach probative value to her
affidavit. To the contrary, this is consistent with its overall negative
credibility assessment.
[13]
It may be
true that no individual inconsistency identified by the tribunal, particularly
concerning the knowledge of the CIO prior to its alleged detention of Ms.
Kavalo, is fatal to the applicants’ claim. However, when taken collectively,
the concerns noted by the tribunal regarding the security measures implemented
by Western Union, the applicants’ premise that the CIO knew of the transfers and
the persons involved before questioning Grace Kavalo, the statements attributed
to Mr. Kavalo in the port of entry notes and the lack of Western Union documentation
could support the rejection of the testimony. Upon a complete review of the
record, I am not persuaded that the negative credibility finding was
unreasonable, let alone patently unreasonable.
[14]
Accordingly,
this application for judicial review will be dismissed. There is no serious
question to be certified.
ORDER
THIS COURT ORDERS that this application for judicial
review is dismissed.
“Allan
Lutfy”
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