Date: 20070917
Docket: IMM-4433-06
Citation: 2007 FC 922
Ottawa, Ontario, September
17, 2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
CYNTHIA SEKAI MESIKANO
RICHARD NWANGI KABUTHA
Applicant(s)
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent(s)
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review by the principal claimant, Cynthia Sekai
Mesikano, and her husband, Richard Nwangi Kabutha, from a decision of the
Refugee Protection Division of the Immigration and Refugee Board delivered on
July 26, 2006.
Background
[2]
Ms.
Mesikano is a citizen of Zimbabwe. She left that country
bound for the United
States
in April 1999 and she remained there for almost 7 years. In February 2006, she
came to Canada and sought refugee
protection.
[3]
Ms.
Mesikano’s protection claim was based on alleged incidents of
politically-motivated persecution directed both at her and at her father by
supporters of the Mugabe regime. Given her lengthy absence from Zimbabwe, much of the
evidence of current risk concerned matters involving her father, which were
connected to her only by association.
[4]
Ms. Mesikano said that during her employment in the
mid-1990’s with a company run by her father, she and other employees were
active in the staging of political protests in Harare. Those protests led to government retaliation against certain labour
leaders and activists. Ms. Mesikano claimed that in 1998 during a
political demonstration she was beaten by the police, and on at least one other
occasion, she and her father were stopped by the police on the way to work. Her
father was questioned but they were allowed to proceed. At no time was Ms.
Mesikano’s identity recorded by the authorities. Police and political
intimidation continued against her father and, in December 1998, the government
imposed a ban on work stoppages. Thereafter, Ms. Mesikano declined to
participate in further public demonstrations for reasons of personal safety.
[5]
In early April 1999, Ms. Mesikano’s father obtained a
Malawian passport for her which allowed her to leave Zimbabwe and to obtain a visa to enter the United
States. She remained in the United States, mostly without
status, until 2006 when she came to Canada and sought refugee protection. Her explanation for failing to seek
asylum in the United States was that she believed
that such a claim would fail.
[6]
According to Ms. Mesikano, her father continued to face
political persecution in Zimbabwe including an arrest and a beating in 2004. More recently, he has been
beset by Mugabe supporters who have attempted to confiscate his business
interests. He has resisted those actions through the courts.
[7]
Mr. Kabutha is a citizen of Kenya and his claim to protection was brought with respect to that country. Mr.
Kabutha met Ms. Mesikano in the United States and, like her, he lived there for a time without status. Mr. Kabutha’s
Personal Information Form (PIF) made a loose connection to Ms. Mesikano's protection claim in the following passage:
1. I
fear being deported to my country of nationality, Kenya, with my
Zimbabwean wife, Cynthia Mesikano. This is because Kenya has
extradition treaties with many counties and if Zimbabwean President Mugabe
declared her a criminal then she would be extradited. Mugabe, so prone to defying
the rule of law, has a long history of doing this.
2. My
wife’s extradition, based on false allegation that she is a criminal, is
especially likely because my wife’s family is persecuted by Mugabe’s severely
repressive Zimbabwe African National Union – Popular Front (ZANU-PF).
3. In
addition, the Kenyan Government is strong supporter of President Mugabe and
strongly favoured President Mugabe’s re-election
[Quoted
from original text]
[8]
Notwithstanding the above described "risk", Mr.
Kabutha's testimony to the Board clearly acknowledged an absence of any fear should
he be returned to Kenya. His evidence on that issue was as follows:
Member: So
am I correct, then, in recording your answer as saying, with respect to
yourself, you don’t have any fear really of returning to Kenya?
Claimant (Mr.
Kabutha): You are correct, sir.
The Board Decision
[9]
It is apparent that the Board had no difficulty with Ms.
Mesikano's credibility. What it concluded was that her evidence failed to
establish an objective basis for a fear of persecution in Zimbabwe. It noted that Ms. Mesikano had been absent from Zimbabwe for over seven years and that, even during her time there,
she was never specifically targeted by the authorities for her political
activism. On the few occasions when she was victimized, she readily
acknowledged that she was essentially in the wrong place at the wrong time. The
Board recognized that Ms. Mesikano's father was in a position of apparent risk but it found nothing in the
evidence to establish to its satisfaction that Ms. Mesikano would be at risk
through that family association.
[10]
The Board went on to reject Ms. Mesikano's explanation for
failing to seek asylum in the United States during her several years of residency there.
[11]
Finally, the Board rejected Mr. Kabutha’s claim to
protection on the basis that his own admissions negated any fear of a return to
Kenya.
Issues
[12]
(a) What
is the standard of review for the issues raised on this application?
(b) Did the Board commit any reviewable
error in its decision?
Analysis
[13]
All
of the issues raised by the Applicants on this application are fact or
evidence-based and the standard of review is, therefore, patent
unreasonableness: see Perera v. Canada (Minister of
Citizenship), 2005 FC 1069, [2005] F.C.J. No. 1337 at para. 14.
[14]
The
principal argument advanced on behalf of Ms. Mesikano was that the Board erred
by failing to address the evidence of generalized risk in Zimbabwe faced by
political opponents to the current regime. It was asserted that the country
condition evidence established that Zimbabwe was essentially a
"failed state" held together by the force of President Mugabe’s
personal will. It was claimed that the Board ignored this essential evidence.
[15]
This
argument has no merit. The Board did acknowledge the existence of serious
human rights abuses in Zimbabwe but it also concluded
that Ms. Mesikano would not be a person of interest to the authorities. This
finding was entirely consistent with her own testimony including the following
exchange:
Member: During
all the time you left Zimbabwe – so by that, I mean all the time you’ve been
both in the United States and
in Canada, since 1999 to the
present – I guess from what you’re saying, you’ve kept in contact with your
father.
Claimant (Ms.
Mesikano): Yes.
Member: Frequently? Periodically?
Claimant (Ms.
Mesikano): Periodically.
Member: And
has he told you in all that time that you were being sought by any authorities
at all? You in particular ---
Claimant (Ms.
Mesikano): No.
Member: ---
being sought by any of the authorities?
Claimant (Ms.
Mesikano): No.
[16]
The
Board's finding that Ms. Mesikano would face nothing more than a generalized
risk in Zimbabwe was
consistent with her evidence that she had not been singled out for persecution
during her time there notwithstanding the apparent risk faced by her father.
The Board was also entitled to consider that Ms. Mesikano had been away from
the country for more than seven years and that her father was using judicial
processes to protect his threatened business interests. Those were relevant
risk factors which the Board could fairly consider in assessing the level of
risk faced by Ms. Mesikano.
[17]
In
the case of Mr. Kabutha, no serious argument was advanced that he faced any
risk of persecution in Kenya. The Board's finding on
that point was consistent with his own testimony and, therefore, cannot be
impugned.
[18]
The
Board's risk determinations were, therefore, well supported by the evidence
before it and in no way can its decision on that issue be described as
unreasonable, let alone patently unreasonable.
[19]
Ms.
Mesikano's challenge
to the Board's finding of delay is also unmeritorious. This argument is an
invitation to the Court to reassess her explanation for that delay and that, of
course, is not the proper role of the Court on judicial review. On this issue,
I would adopt the analysis of my colleague Justice Richard Mosley in Gonzalez v. Canada (Minister of Citizenship and Immigration), 2005 FC 1595, [2005] F.C.J. No. 1965, where he
held:
[17] The applicant submits
that the Board erred in concluding that her evidence as to why she did not make
a claim in the United States was vague and asserts that she provided plausible
explanations for the delay. It is well settled that delay in making a refugee
claim is an important factor which the Board may consider in weighing a claim
for refugee protection: Heer v. Canada (Minister of Employment and
Immigration), [1998] F.C.J. No. 330 (QL). In this case, a delay of over
four years suggests a lack of a subjective fear of persecution and it was open
to the Board to reject the applicant's explanations. The applicant, in effect,
is asking the Court to make its own assessment of her reasons and substitute
its opinion for that of the Board. Unless the finding was patently
unreasonable, which I do not find, there is no basis for the Court's
intervention.
[20]
As
a result, this joint application for judicial review is dismissed. Neither
party proposed a certified question and no issue of general importance arises
on this record.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is dismissed.
“ R. L. Barnes ”
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