Date: 20080130
Docket: IMM-1324-07
Citation: 2008 FC 122
Ottawa, Ontario, January 30,
2008
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
MASTER
MUGADZA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Master
Mugadza (the “Applicant”) applies for judicial review pursuant to section 72(1)
of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (the
“IRPA”) of a decision made by the Refugee Protection Division of the
Immigration and Refugee Board (the “Board”), dated March 2, 2007, wherein it
was determined that the Applicant is not a Convention refugee nor a person in
need of protection under sections 96 and 97 of the IRPA.
[2]
I
have concluded that the test applied by the Board has not met the standard
established by the Federal Court of Appeal in Adjei v. Canada (Minister of
Employment and Immigration), [1989] 2 F.C. 680. My reasons follow.
FACTS
[3]
The
Applicant is a citizen of Zimbabwe. He resided in Harare and had a
family farm in Chivu where his mother lived. He alleges he became a target of
the secret police, the Zimbabwe Central Intelligence Organization (tbe “CIO”),
because of his son’s involvement in Zimbabwe’s main opposition
party, the Movement for Democratic Change (“MDC”). The Applicant claims his
son was chairman of the MDC ward in Norton, Zimbabwe.
[4]
The
Applicant says he is not an active member of the MDC. He alleges that he came
to the attention of the CIO as a result of attending an MDC meeting in Norton
that his son was chairing. Norton is some 40 minutes away by car from Harare and 100
kilometres from Chivu. The MDC meeting in Norton was broken up by the CIO.
His son apparently was forewarned of the impending raid, escaped and went into
hiding. The Applicant said he was apprehended, and then interrogated and
beaten by the CIO in an attempt to find out his son’s location. The Applicant
says he reported the assault to the police who were unresponsive. The
Applicant felt he had no choice but to flee the country.
[5]
The
Applicant obtained a visa to the United States of America. He left
Zimbabwe on May 10, 2006 and travelled to the United Kingdom via South Africa arriving on
May 11, 2006. The Applicant’s wife and their five children were in the United
Kingdom
where she was studying on a student visa. He left for the United States where
he remained for three and one half weeks before claiming refugee status in Canada on June 8,
2006.
[6]
The
Applicant makes his claim for refugee status based on having a fear of
persecution by reason of political opinion and his son’s involvement in the
MDC. He advanced his claim for refugee protection under sections 96 and 97 of IRPA.
[7]
The
Board found that the Applicant was not credible and that he will not face a
serious possibility of persecution in Zimbabwe nor will his removal to
Zimbabwe subject him
personally to a risk to his life or risk of cruel or unusual punishment.
ISSUES
[8]
The
Applicant submits that the Board erred by failing to apply the correct test for
determination of his Convention status under section 96 of the IRPA. The
Applicant further submits that the Board erred in making its credibility
findings and by failing to consider documentary evidence.
[9]
I
will address the following issues arising in this matter:
1. Did
the Board err in law in its interpretation of section 96 of the IRPA when
finding that the Applicant was not a Convention refugee?
2. Did the Board err in
making its credibility findings?
STANDARD OF REVIEW
[10]
In
order to prove that one is a Convention refugee, an applicant must demonstrate
they have a well-founded fear of persecution The standard of proof a refugee
applicant must meet to establish an objective basis for his fear of persecution
is a matter of law as it derives from the interpretation of section 96 of the
IRPA in keeping with Canada’s international obligations with respect to
refugees (see s. 3(2)(b) of the IRPA). The standard of review of this question
of law is correctness (Mugesera v. Canada (Minister of
Citizenship and Immigration), [2005] 2 S.C.R. 100 at para. 37).
[11]
The
standard for review of findings on credibility by a Refugee Protection Board
which has expertise in determining questions of fact is patent unreasonableness
(Aguebor v. Canada (Minister of Citizenship and Immigration) (1993), 160
N.R. 315 (F.C.A.)).
ANALYSIS
Did
The Board Err In Law In Its Interpretation Of Section 96 Of The IRPA When
Finding That The Applicant Was Not A Convention Refugee?
Applicant Submissions
[12]
The
Applicant submits the proper test for determining whether or not an applicant
is a Convention refugee is whether there is a reasonable chance or serious
possibility that the claimant would be persecuted should he be returned to his
country of nationality. The Applicant states that the standard of proof is
less than a balance of probabilities but more than a mere possibility of
persecution upon return. The Applicant relies on Chan v. Canada (Minister of
Employment and Immigration), [1995] 3 S.C.R. 593 at para. 120 and Ponniah
v. Canada (Minister of
Employment and Immigration), [1991] F.C.J. No 359 (F.C.A.).
[13]
The
Applicant submits that the Board applied a higher standard and points to the
Board’s reasons where it states:
The panel rejected the claimant’s
credibility in regard to material aspects of his claim and was not persuaded, on
a balance of probabilities, that he was targeted by the authorities of his
country or that he will be personally targeted in the future if he
returns (emphasis added).
[14]
The
Applicant submits that the use of the words “on a balance of possibilities” and
“he will be” demonstrates that the Board applied a higher standard in its
section 96 analysis than has been established in case law. The Applicant
relies on several cases, including Chen v. Canada (Minister of
Citizenship and Immigration), [1997] F.C.J. No. 118 at para.. 15, where
this Court has found a board has erred by setting the standard of proof an
applicant has to meet to obtain Convention status as being on the balance of
probabilities,
[15]
The
Applicant acknowledges the Board referred to the proper test later in its
reasons but submits that, if it cannot be determined which test the Board
applied, its decision is in error.
Respondent Submissions
[16]
The
Respondent argues that notwithstanding that the Board may have used the wrong
terminology at the start of its reasons, the Board clearly stated the correct
test after its analysis. The Respondent submits, having regard to the whole of
the Board’s reasons, it is clear that the Board did apply the correct test in
the latter portion of its reasons.
[17]
The
Respondent submits that the Board’s reasons are to be taken as a whole. The
Respondent points to Chan v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 1417 at para. 14, where
Justice Dawson makes reference to considering a board’s decision in its
entirety in circumstances where the section 96 test is articulated in more than
one way.
[18]
The
Respondent refers to Ghose v. Canada (Minister of
Citizenship and Immigration), 2007 FC 343 at para. 22. In that case,
this Court found that although the board had stated the correct test at the
onset of its reasons, the board’s use of the wrong test after the analysis
portion resulted in error. The Respondent notes that the Court gave weight to
the latter coming as it did after the analysis portion of its reasons. The
Respondent also refers to Carpio v. Canada (Minister of
Citizenship and Immigration), [1994] F.C.J. 383 at para. 14, for the
proposition that the stated standard of proof in the introductory paragraphs of
a board decision was in the nature of “boiler plate” and should not be given
much weight. The Respondent submits that the Board’s misstatement at the
beginning of its reasons should be similarly treated.
[19]
The
Respondent submits the question to be determined is whether the misstatement of
the legal test in the introduction of the decision leaves the Court in doubt as
to what standard of proof the Board actually applied. The Respondent submits
that the statement of the correct legal test in the key concluding analysis portion
of the decision indicates the Board applied the correct standard of proof.
Analysis
[20]
The
legal test or standard of proof to be met by an applicant for refugee status
asserting a fear of persecution was addressed by the Federal Court of Appeal in
Adjei, above. Justice MacGuigan, considering the proper interpretation
of section 2(1)(a) of “Convention refugee” in the former Immigration Act,
the forerunner to s. 96(a) IRPA stated:
However, the issue raised before this
Court related to the well-foundedness of any subjective fear, the so-called
objective element, which requires that the refugee’s fear be evaluated
objectively to determine if there is a valid basis for that fear.
It was common ground that the objective
test is not so stringent as to require a probability of persecution. In other
words, although an applicant has to establish his case on a balance of
probabilities, he does not nevertheless have to prove the persecution would be
more likely than not. Indeed, in Arduengo v. Minister of Employment and
Immigration (1982) 40 N.R. 436, at 437, Heald J.A. said:
Accordingly, it is my opinion that the
board erred in imposing on this applicant and his wife the requirement that
they would be subject to persecution since the statutory definition supra required
only that they establish “a well-founded fear of persecution”. The test
imposed by the board is a higher and more stringent test than that imposed by
the statute.
[…]
We would adopt that phrasing, which
appears be equivalent to that employed by Pratte J.A. in Seifu v.
Immigration Appeal Board (A-277-822 (dated January 12, 1983):
… [I]n order to support a finding that an
applicant is a convention refugee, the evidence must not necessarily show that
he “has suffered or would suffer persecution”; what the evidence must show is
that the applicant has good grounds for fearing persecution for one of the reasons
specified in the Act.
What is evidently indicated by phrases
such as “good grounds” or “reasonable chance” is, on one hand, that there need
not be more than a 50% chance (i.e., a probability), and on the other hand that
there must be a more than a minimal possibility. We believe this can also be
expressed as a “reasonable” or even a “serious possibility”, as opposed to a
mere possibility.
[21]
The
Board’s reasons are to be taken as a whole. In I.F. v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1472 at paras. 24, Justice
Lemieux in deciding whether the board erred in its application of the section
96 test by setting out two slightly different tests held:
In this case, looking at the impugned
decisions as a whole, I find the tribunal expressed itself sufficiently and did
not impose an inappropriate burden on the applicants. The tribunal conveyed
the essence of the appropriate standard of proof, that is, a combination of the
civil standard to measure the evidence supporting the factual contentions and a
risk of persecution which is gauged by not proving persecution is probable but
by proof there is a reasonable chance or more than a mere possibility a
claimant would face persecution.
[22]
In
Alam v Canada (Minister of Citizenship and Immigration), 2006 FC
1407 at paras. 6, Justice O’Reilly stated:
[t]his is an awkward standard of proof to
articulate. This Court has recognized that various expressions of this
standard are acceptable, so long as the Board’s reasons taken as a whole
indicate that there the claimant was not put to an unduly onerous burden of
proof.
[23]
The
conflicting portions of the Board’s decision are as follows:
Page 1 of the
Board’s reasons:
The panel rejected the claimant’s
credibility in regard to material aspects of his claim and was not
persuaded, on a balance of probabilities, that he was targeted by the
authorities of his country or that he will not be personally targeted in
the future if he returns (emphasis added).
Page 6 of the
Board’s reasons:
In light of all the aforementioned
inconsistencies, the panel concludes that the event of April 20, 2006, never
occurred and that the claimant is not being sought by Zimbabwe’s secret service or anyone else in his
country.
The panel finds that the claimant will
not face a serious possibility of persecution in Zimbabwe (emphasis added).
Having taken into account all of the
evidence, the panel further finds that the claimant’s removal to Zimbabwe will
not subject him personally to danger, believed on substantial grounds to exist,
of torture, and will not subject him personally to a risk to his life, or a
risk of cruel and unusual treatment or punishment, under Section 97(1) of the Immigration
and Refugee Protection Act. Therefore, the claimant’s claim fails on all
three grounds under the Immigration and Refugee Protection Act.
[24]
The
first statement is not a mere “boiler plate” expression of the standard of
proof. It sets out its conclusion, after referencing the Board’s credibility
findings, that the Applicant has not persuaded the Board on “the balance of
probabilities” that he will be “targeted by the authorities” on return to Zimbabwe. The first
statement cannot be disregarded as a mere misstatement.
[25]
The
two excerpts are the Board’s only discussion on the subject of persecution in
its reasons. Considering the Board’s reasons as a whole, I cannot determine
which standard the Board used to evaluate the Applicant’s section 96 Convention
refugee status.
[26]
I
find that the Board failed to clearly articulate and apply the proper legal
test for the Applicant’s section 96 Convention refugee claim.
[27]
Having
found that the Board committed an error in law by failing to clearly articulate
and apply the correct test under section 96 of the IRPA and in light of its
cursory section 97 analysis, I need not consider its credibility findings.
CONCLUSION
[28]
The
Board articulated two tests for consideration of the Applicant’s section 96
Convention refugee claim, the first being the possibility of persecution on
the “balance of probabilities”, the second being a “serious possibility”, the
latter being the correct test. On review of the whole of the reasons, I cannot
say that the Board applied the correct test, that being a “serious possibility”
of persecution if the Applicant returns to Zimbabwe.
[29]
I
conclude that the Board decision should be quashed and a new hearing to
consider the Applicant’s claim under both sections 96 and 97 ordered before a
different panel of the Board.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. The application for judicial
review is allowed, the decision of the Board is quashed, and a new hearing
before a different panel of the Refugee Protection Board is ordered.
2. No question of general importance
is certified.
"Leonard
S. Mandamin"
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