Date: 20080204
Docket: IMM-885-07
Citation: 2008 FC 143
Ottawa, Ontario, February 4, 2008
PRESENT: The Honourable Orville Frenette
BETWEEN:
ITAYI TAFADZWA INNOCENT MUPESA
(a.k.a. Itayi Mupesa)
ZIONE MUPESA
TIKONDWE NATHAN TAFADZWA MUPESA (a.k.a.
Ticondwe Nathan Mupesa)
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
principal applicant, Itayi Mupesa, his wife, Zione Mupesa, and their son, Tikondwe
Nathan Mupesa, bring this application for judicial review of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (the Board)
dated February 7, 2007. In that decision, the Board concluded that the
applicants were not Convention refugees or persons in need of protection under
sections 96 and 97 of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (the Act).
I. Facts
[2]
The
principal applicant and his son are both citizens of Zimbabwe. The
principal applicant’s wife is a citizen of Malawi and a
Zimbabwean permanent resident.
[3]
The
applicants seek refugee protection in Canada because of a fear that,
if returned to Zimbabwe, they will be persecuted because of the
principal applicant’s perceived political opinion. The applicants allege that
their fear is premised on the principal applicant’s participation in student
demonstrations against the Zimbabwean government of Robert Mugabe in 1998, as
well as his support for the “No” campaign in a 2000 constitutional referendum
designed to give President Mugabe more power. The principal applicant alleges
that as a result of his participation in these events, his name has been placed
on a list of student activists who were subsequently targeted by the government
after the referendum’s rejection.
[4]
As
well, the principal applicant further alleges that his name is on a list of
members of the Zimbabwe Congress of Trade Unions (ZCTU), a result of the fact
that his primary employment was as a diesel plant fitter for caterpillar
machinery. The principal applicant alleges that in times of extreme unrest,
members of the ZCTU have been threatened and targeted by the government.
[5]
The
applicants claim that as a result of the principal applicant’s background, it
was necessary for them to leave Zimbabwe in order to find, in
the words of the principal applicant, “a safe place to live for me and my
family.” In February 2002, the female and child applicants left Zimbabwe for Great
Britain
on Malawian passports. The principal applicant, fearing possible deportation upon
arrival in Great
Britain,
obtained a U.S. student visa and left Zimbabwe for Abilene,
Texas
in July 2002. He was joined by his wife and son on October 9, 2003.
1. Specific
pertinent facts
[6]
The
adult applicants married in Zimbabwe in 2001. Their son, the
minor applicant, was born in February 2001. The female applicant, a citizen of Malawi, left Zimbabwe for the
United Kingdom (UK) in 2002.
[7]
The
principal applicant said he was fearful of travelling to the UK on a Zimbabwe passport
because a large number of Zimbabweans were deported at the port of entry.
[8]
He
obtained that Zimbabwean passport and a student visa from the United States of
America (USA) when he travelled in July 2002, settling to study in Abilene, Texas.
[9]
Between
July 2000, September 2000, July 2001 and August 2001, he travelled freely in and
out of Zimbabwe. He remained
in the USA until 2006 after
having been refused a work permit in 2005. He had no means of support because
his brother-in-law ceased to finance his studies.
[10]
He
did not apply for asylum status in the USA. In his
Personal Information Form (PIF) dated May 2, 2006, he states he learned he
could seek refugee status in Canada, following which the applicants entered Canada in April
2006, claiming refugee status. Their claim was heard on December 19, 2006.
[11]
In
her PIF, the female applicant wrote she could not return to Malawi for economic
reasons and because she was a woman. She did not testify at the Board hearing.
2. Documentation
[12]
The
applicants presented a documentation package about the situation in Zimbabwe in
2005-2006, including a U.S. Department of State “Country Reports on Human
Rights Practices-2005”, released in March 2006, which, in general, describes a
very poor government human rights record, including politically-motivated killings
and kidnappings, torture, rape and abuse of persons perceived to be opposition
supporters. Security and police violation of human rights is rampant.
[13]
Citizens
returning from abroad are questioned about their activities in other countries
and some of the citizens’ passports are seized.
3. The
decision under review
[14]
The
applicants were represented by counsel at the Board hearing held on December
19, 2006. The principal applicant testified while the female applicant did not;
however, her affidavit formed part of the record.
[15]
The
Board member, Clive Joakim, in a five page decision rendered on February 7,
2007, considered the applicants allegations on the basis of Convention refugee
or persons in need of protection pursuant to sections 96 and 97 of the Act.
He determined after analysis the following facts:
(A)
that
the male claimant had not established a profile, which would have attracted
adverse attention of the ZANU-PF government of the day;
(B)
that
he obtained a Zimbabwean passport without difficulty and entered freely in and
out of that country between 2000 and 2002;
(C)
that
he would not be persecuted in Zimbabwe if he returned, because
of his profile and because he had not been particularly active;
(D)
that
the applicants had not proven, by their actions, any subjective fear if they
returned to Zimbabwe; and
(E)
that
the applicants seemed to be “asylum shopping” rather than seeking protection at
the earliest opportunity.
[16]
The
member mentioned that he was aware of the documentary evidence on Zimbabwe where the
human rights record was poor but the claimants faced the same generalized risk
of harm faced by the population at large.
[17]
The
Board did not make any adverse credibility findings in reaching its decision, but
rather rejected the applicants’ claim on the ground that they did not possess a
well-founded fear of persecution. As the Board stated at page 2 of its Reasons:
I find that the claimants do not have a
well-founded fear of persecution in Zimbabwe
or Malawi (female claimant) for a
Convention reason. In addition, there is nothing in the profiles of any of the
claimants to suggest that, on a balance of probabilities, they face a risk to
their lives or other cruel and unusual punishment, nor do substantial grounds
exist to believe that they face a danger of torture if returned to their
respective countries of citizenship.
II. The issues
A.
Does
the principal applicant possess a political profile such that he or his family
would attract adverse attention from the Zimbabwean government?
B.
Does
the issuance of a passport and the entering and exiting freely from Zimbabwe have a
determinative role to play?
C.
Does
the failure to claim asylum in the USA have any incidence on the refugee claim
in Canada?
D.
Did
the board err by not addressing directly the claims of the principal
applicant’s wife and child?
III. The standard of
review
[18]
The
Board’s primary determination in rejecting the applicants’ refugee claims was
that they did not possess a well-founded fear of persecution in Zimbabwe or Malawi for a
Convention reason. In Musiyiwa v. Canada (Minister of Citizenship and
Immigration), 2007 FC 181, Mr. Justice O’Keefe held that the standard of
review applicable to the Board’s determination that an applicant’s fear of
persecution was not objectively well-founded is that of patent
unreasonableness: see also Hasan v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1537.
[19]
Accordingly,
the Board’s decision will only be set aside if it is “clearly irrational” or
“evidently not in accordance with reason”: Law Society of New Brunswick v. Ryan, 2003 SCC 20.
IV. Analysis
A. Does
the principal applicant possess a political profile such that he or his family
would attract adverse attention from the Zimbabwean government?
[20]
The
applicants claim that the principal applicant’s political and union profile opposing
the Zimbabwean government and re-election of President Mugabe would put them in
danger of being harmed if they returned to that country.
[21]
They
also claim that the Board ignored or failed to consider aspects of documentary
evidence supporting their submission. The respondent submits that the Board
assessed the documentary evidence and its conclusion is based upon it.
[22]
The
decision clearly shows that the written reasons demonstrate that the Board did
consider the documentary evidence and reached conclusions regarding the poor
human rights record and abuse by the government-backed militia.
[23]
Furthermore,
the Board is presumed to have considered all of the evidence before it: Cepeda-Gutierrez
v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1425 (QL).
[24]
The
Board’s conclusion about the principal applicant’s profile, particularly his
lack of political activity since 2002, is based upon the evidence.
[25]
I
therefore cannot find any reasonable error in this finding.
B. Does
the issuance of a passport and the entering and exiting freely from Zimbabwe have a
determinative role to play?
[26]
The
principal applicant submits that the Board misinterpreted the evidence with
respect to the issuance of a passport in July 2000 and the entering and exiting
freely from 2000-2002. He cites the case of Veres v. Canada (Minister of
Citizenship and Immigration), [2001] 2 F.C. 124 (T.D.), to support the
proposition that the Board could not “ignore reasonable explanations and to
treat the evidence as though the explanations were never given”.
[27]
The
respondent pleads that the Board rightly considered the issuance of the
passport and the unrestricted travel of the applicant solely to show his lack
of fear.
[28]
I
cannot find any reviewable error on this point.
C. Does
the failure to claim asylum in the USA have an adverse
effect on the refugee claim in Canada?
[29]
The
applicants submit that the Board committed a reviewable error because it
considered:
…It is thus incumbent upon those truly facing
persecution at home to secure protection at the earliest opportunity and then continue
to study. The claimants, in not making a claim in the US have in my view exhibited no subjective
fear. [RPD decision, p.4]
[30]
The
respondent answers that although this interpretation of the evidence is not entirely
determinative, it was open to the Board to interpret it as it did from the
evidence, since the actions of the applicants showed lack of subjective fear. The
principal applicant admitted that the main reason he left the USA was because
he could not pay for his school fees. He effectively admitted to “asylum
shopping”. Case law establishes that it is a fact that can be considered, but a
refugee seeker is not obliged to seize the first opportunity to claim refugee
status: see Gavryushenko v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1209
(T.D.) (QL); Owusu-Ansah v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 442
(C.A.) (QL).
[31]
In
the present case, the board did not commit a reviewable error on this issue.
D. Did
the board err by not addressing directly the claims of the principal
applicant’s wife and child?
[32]
The
applicants submit that the case law requires a separate treatment for their
claims, quoting Iruthayathas v. Canada (Minister of Citizenship and Immigration),
[1994] F.C.J. No. 1202 (QL), Chehar v. Canada (Minister of Citizenship and
Immigration), [1997] F.C.J. No. 1698 (QL), Seevaratnam v. Canada
(Minister of Citizenship and Immigration), [1999] F.C.J. No. 694 (QL) and
especially Mohacsi v. Canada (Minister of Citizenship and Immigration), 2003
FCT 429 (Mohacsi).
[33]
In Mohacsi,
the claim between the principal applicants raised conflicts as to the reasons
why they sought refugee status. Both produced a PIF and both testified before
the Board.
[34]
Mr. Justice
Martineau concluded that the impugned decision either ignored the evidence or
failed to give additional reasons why it rejected the wife’s and minor
children’s applications for refugee status. This was considered a reviewable
error.
[35]
In
the present case, the factual situation is different. The applicants provided one
single application, but only the principal applicant testified, speaking for
all. The female applicant had signed a PIF but she did not testify or present other
evidence.
[36]
The
respondent therefore assumes that she did not swear to the truth of the PIF
narrative.
[37]
Accordingly,
the respondent submits that all three applicants relied entirely on the
principal applicant’s claim against Zimbabwe and that the Board did not err in failing to
address the female applicant’s fear if returned to Malawi.
[38]
Support
for this argument is found in Akramov v. Canada (Minister of Citizenship and
Immigration), 2006 FC 122, where Mr. Justice Beaudry concluded that since
the Board found that the principal applicant had not clearly established the
circumstances surrounding his claim, then it was not unreasonable for the Board
to conclude that the secondary applicants had not established their claims
either. However, in that case Mr. Justice Beaudry was clear in stating at
paragraph 31 that justification for the Board’s decision was based on the fact
that the secondary applicants did not testify or submit independent PIFs,
thereby meaning that the Board could only reach “a
conclusion in their case by relying on the evidence submitted by the principal
applicant.”
[39]
Therefore,
there was no sworn evidence as to her claim of cruel treatment as a female if
she returned to Malawi. The applicants themselves did not refer to any
new evidence, and the Board relied solely on the principal applicant’s
evidence.
[40]
Furthermore,
the decision refers only to the “claimants” at pages 3 and 4 of the decision:
…There is not a serious possibility that
the claimants will be persecuted for a Convention reason or face serious
harm if they return to Zimbabwe. The female applicant has
made no claim in respect of Malawi.
[...]
…The claimants, in not making a
claim in the US have in my view exhibited no
subjective fear. They hear that Canada
was accepting refugees and so can be seen to be “asylum shopping”, rather than
urgently seeking protection at the earliest opportunity.
…Having said that, it is my view that these
claimants face a generalized risk of harm faced by the population at large
in Zimbabwe.
[Emphasis added]
[41]
Also,
there is no independent evidence except that of the principal applicant, who
acted as representative of the child. Therefore, the Board did not commit any
reviewable error on this point.
[42]
In
the case at bar, it is clear from the record that the principal applicant’s
wife did not testify at the hearing, produced no evidence and her PIF is not
sworn evidence.
[43]
It
was therefore unreasonable to expect the Board to render a separate decision
for her without specific separate evidence.
[44]
In
all of these reasons, I must conclude that the applicants have not shown that
the Board has committed any reviewable errors.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application is dismissed. No questions for certification were submitted.
"Orville
Frenette"
Email this Content