Date: 20070320
Docket: IMM-2553-06
Citation: 2007 FC 298
Ottawa, Ontario, March 20,
2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
CHIPO PAULINE MUTANGADURA
MARGARET
TAMBUDZAI CHANYOWEDZA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Immigration and Refugee Board (Board) rejected the Applicants’ claims for
refugee status and for protection on the issues of well foundedness and
credibility. The principal Applicant (Applicant) is a citizen of Zimbabwe and her
daughter, the minor Applicant, is a citizen of the United States. The
critical issues in this judicial review are (a) whether the Board applied the
correct legal test in s. 96 when it used the words “serious doubt” in respect
of a well founded fear of persecution and (b) whether her opportunistic motives
for joining a group were considered to disqualify her from s. 97 protection.
II. BACKGROUND
[2]
The
Applicant’s father had been the subject of attacks by Zimbabwean war veterans.
Her father decided to send the Applicant and her sister to the United
States
where she attended college in 1999.
[3]
She
had a child while in the U.S. She also claimed that she joined a
Zimbabwean protest group, the Movement for Democratic Change (MDC) but did not
attend meetings because of fears that agents of her government would denounce
her.
[4]
She
did not seek refugee status because, after a two-year delay, she understood
that there was little point in applying due to the U.S. law
generally prohibiting status after a one-year delay.
[5]
The
Applicant came to Canada in September 2005 and made a refugee claim largely on
the basis of her father’s “persecution” in Zimbabwe. She claims
that she joined the MDC branch in Niagara Falls, Canada, but that she
played no role in its formation.
[6]
It
is evident that the Board had concerns about the overall credibility of the
Applicant’s claim in a number of respects. The Board concluded that it had
“serious doubts” that the Applicant faced a well founded fear of persecution. The
Board goes on to find that “overall the principal claimant has failed to
establish that she faces a serious possibility of harm if she returns” to Zimbabwe.
[7]
The
Board did not believe that the Applicant had joined the MDC in the United
States
and concluded that even if she was afraid that agents would disclose her
membership, these fears were speculative. With respect to her involvement in
the Canadian branch of the MDC, her role was minimal. After referring to the
UNHCR Handbook and James C. Hathaway’s book on The Law of Refugee
Status, the Board went on to hold that it was also entitled to consider her
opportunistic motives in joining the Canadian MDC and concluded that she was
bolstering her claim by creating the circumstances of her alleged fear.
III. ANALYSIS
A. Section
96
[8]
The
Applicant argues that the use of the words “serious doubts” as to the
Applicant’s fear of persecution is either (a) the expression of the wrong legal
test in s. 96 or (b) is a confusing statement not clearly expressing the correct
legal test. The Applicant says that this case falls within the rationale of
Justice O’Keefe’s decision in Tariq v. Canada (Minister of
Citizenship and Immigration), [2001] F.C.J. No. 822 (QL).
[9]
With
the greatest respect for counsel’s able argument, I cannot agree. One cannot
become fixated on these words or engage in matters of semantics without
considering the whole of the decision and the context within which those words
appear. (See Sivagurunathan v. Canada (Minister of
Citizenship and Immigration), 2005 FC 432)
[10]
As
I read these words, they refer to whether the Applicant has met the legal
criterion under s. 96, not a definition of the legal test to be applied under
that provision. This view is reinforced by the fact that the Board refers to
the legal test under s. 96 later in the judgment.
[11]
A
review of the evidence before the Board, including the fact that no one had
directed any attention toward her or her sister or even toward her brother who
was living in Zimbabwe, shows that
there was a factual basis for the Board’s conclusion.
[12]
Therefore,
as a matter of standard of review, the Board applied the correct legal test and
made a reasonable finding in applying the facts to the law.
[13]
There
are no patently unreasonable findings of fact which would undermine this
decision.
B. Section
97
[14]
The
Applicant correctly asserts that it is not sufficient to examine the purely
subjective aspect of this claim. Even an opportunistic circumstance, while
relevant to the legitimacy of the need for protection claim, does not justify
disregarding objective risk. How far opportunistic and questionable claims may
be pushed to create the objective risk need not be addressed here.
[15]
In
this instance, the Board did a thorough review of the objective component of
her MDC membership in the U.S. The Board found that her MDC activities
(if any) were not likely to come to anyone’s attention and that she had
exhibited little interest in the movement.
[16]
The
Board then layers on this U.S. experience, her Canadian MDC connection,
and her lack of involvement in the organization. The Board refers to the UNHCR
Handbook and Professor Hathaway’s book in respect of the obligation to consider
the objective basis of a claim, despite concerns about the subjective fears and
claims founded on ill motives.
[17]
Since
there was no significant difference between her profile and risk in the context
of her U.S. activities
and those of her Canadian activities, there is no need to repeat the
conclusions separately for each country.
[18]
The
Board had its obligation to consider this objective evidence of her profile and
risk clearly in mind. There is nothing in its conclusions to suggest that it
had failed to meet this obligation.
[19]
The
comments of Justice Hugessen in Asfaw v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 1157 (QL) are apt:
The Board’s examination of the motives
was therefore not an irrelevant matter and the determination which they reached
on that subject was one which was open to them on the evidence. It would I
agree have been an error if the Board had stopped its examination at that point
and had not also looked at whether or not the claimant had an objective fear
but, they did not commit that error.
[20]
There
was nothing patently unreasonable about the Board’s finding of non-membership
in the U.S. MDC. It was consistent with her statement at the Canadian port of
entry. The Board’s analysis of her objective risk was an alternative assessment
based upon assuming she was a member in the U.S. The Board
accepted that she was listed as a member of the Canadian MDC which indicates
that its objective fear analysis was applicable to both countries.
[21]
The
Board’s rejection of her excuse for not filing a refugee claim does not ignore
the part of her excuse based on her age of 18 at the time of entry to the U.S. The Board
accepted that her age was a mitigating factor, as evidenced by the transcript;
it is just that the mitigating factor was not sufficient to overcome all the
other evidence of no genuine fear. There is nothing patently unreasonable in
this conclusion.
IV. CONCLUSION
[22]
For
these reasons, I find no basis for overturning the Board’s decision. This
application for judicial review will be dismissed. There is no question for
certification.
JUDGMENT
IT IS ORDERED THAT this
application for judicial review is dismissed.
“Michael
L. Phelan”
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