Date: 20080429
Docket: IMM-1441-07
Citation: 2008 FC 543
Ottawa, Ontario, April 29,
2008
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
CLEMENT
ALEXANDER JUMBE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
In 2005, Mr. Clement Alexander Jumbe sought refugee protection in Canada
based on his fear of political persecution in Zimbabwe. A panel of the
Immigration and Refugee Board dismissed his claim, primarily on the basis that
it did not believe Mr. Jumbe’s fear was genuine. Mr. Jumbe argues that the
Board’s conclusion was unreasonable in light of the evidence. He asks me to
overturn the Board’s decision and order a new hearing.
[2]
I agree that the Board erred and will grant this application for
judicial review.
I.
Issue
[3]
Was the Board’s conclusion that Mr. Jumbe’s behaviour was inconsistent
with a genuine fear of persecution reasonable?
[4]
I should note that Mr. Jumbe argued that there were other areas in which
the Board erred, such as its handling of the documentary evidence supporting his
claim. However, given that the Board rejected his claim primarily because of an
absence of subjective fear, and I am satisfied that the Board erred on this
ground, I need not deal with the other issues Mr. Jumbe raised.
II. Analysis
- Factual Background
[5]
Mr. Jumbe worked as a teacher for many years and ultimately became school
principal. He also served as a District Education Officer and a National
Coordinator for UNICEF. In the latter capacity, he supervised a national
HIV/AIDS Life Skills program. Funds for that program were discontinued in 2002
when Zimbabwe withdrew from the Commonwealth. At that point, Mr. Jumbe took
over his wife’s manufacturing business and acted as a consultant. He also began
work on a PhD thesis on the subject of HIV/AIDS in South Africa.
[6]
Mr. Jumbe testified that he had been detained and questioned by the
Central Intelligence Organization (CIO) in 1999 after his brother had
inadvertently rented property to persons conspiring to overthrow the head of
state of a neighbouring country. This appears to have been an isolated and
relatively minor incident. Mr. Jumbe traveled outside the country several times
after that incident and did not seem to encounter any major difficulties on his
return.
[7]
More important is the fact that Mr. Jumbe’s son was a member of the
Movement for Democratic Change (MDC), a political party active in the area
where the family resided. He fled Zimbabwe in 2001 and was granted asylum in
the United Kingdom. Mr. Jumbe’s wife was also granted refugee protection in the
UK. Two other children found asylum in Denmark. Another son is a student in
the United States. Mr. Jumbe’s claim rests primarily on his perceived
association with the MDC. He claims to have been targeted by the rival Zanu-PF
party.
[8]
The incident that gave rise to Mr. Jumbe’s departure occurred in May
2005. After the election that spring, a gang of youths supporting the Zanu-PF
destroyed Mr. Jumbe’s factory. He says that the youths threatened him
personally when he visited the site after the destruction. They accused him of
betraying his country. After a month of settling personal affairs and living
with his brother to avoid being seen at home, Mr. Jumbe left Zimbabwe. As he
had a valid passport, visas permitting him to visit the United Kingdom and the
United States, and an open-ended plane ticket, he traveled first to England to
visit his wife and then to the US to see his son. Just before his visa expired,
he left the US for Canada. He claimed refugee status on arriving at the
Canadian border on December 23, 2005. Since then, he has been recognized as a
“scholar at risk” which has enabled him to obtain funding to continue his
doctoral studies at the University of Toronto.
- The Board’s Decision
[9]
The Board concluded that Mr. Jumbe’s conduct was inconsistent with a
genuine fear of persecution. In particular, the Board noted that:
• Mr. Jumbe did not leave Zimbabwe until a month after the
destruction of his factory;
• He did not seek asylum in either the United Kingdom or the
United States when he had ample opportunity to do so; and
• When he arrived at the Canadian border, he did not mention
the fact that he had been threatened by Zanu-PF youths.
- Discussion
[10]
Mr. Jumbe argues that the Board’s conclusion that he did not behave in a
manner consistent with a real fear of persecution was unreasonable. First, Mr.
Jumbe explained to the Board that he needed to stay in Zimbabwe for a short
period of time in order to wind up the family’s business affairs. During most
of that time, he stayed with his brother so that he would not be seen by
Zanu-PF supporters. The Board did not explain why Mr. Jumbe’s explanation for
hisone-month stay in Zimbabwe was unacceptable.
[11]
Second, Mr. Jumbe explained to the Board why he did not claim asylum in
the United Kingdom or the United States. He had valid visas for both countries,
so he could safely travel and stay there while the visas were in force.
Accordingly, he took the opportunity to visit family members and obtain their
advice. He took action to obtain refugee protection when his other options ran
out. True, Mr. Jumbe could have made a refugee claim elsewhere. He stated that
he wanted to come to Canada where there was a greater chance of making a
successful claim, greater likelihood of achieving family reunification and a
greater opportunity for him to continue his doctoral studies.
[12]
Certainly, the Board was entitled to consider whether Mr. Jumbe’s
explanation cast doubt on his claim to fear political persecution in Zimbabwe,
along with all of the other evidence. But the Board concluded that Mr. Jumbe’s failure
to claim elsewhere, in itself, proved “that he did not have a subjective fear”.
Indeed, the Board stated that Mr. Jumbe had failed to rebut the presumption
that refugee claimants will seek asylum at the first opportunity. As I
understand it, there is no such presumption and, therefore, no burden of proof
on refugee claimants to rebut it. Rather, a claimant’s behaviour and testimony
must be considered by the Board, along with the other evidence, to determine
whether he or she has a genuine fear of persecution. The Board was entitled to
consider Mr. Jumbe’s evidence and his explanation for coming to Canada and to explain
how it negated the existence of genuine fear. But it was not enough for the
Board simply to state that the failure to claim elsewhere, in itself, proved an
absence of subjective fear.
[13]
Third, Mr. Jumbe was asked at the Canadian border to identify the
persons he feared in Zimbabwe. He said that he was afraid of the government,
the Zanu-PF and the CIO. He was not asked to describe the incidents leading up
to his departure from Zimbabwe or to give further details about why he was
afraid. In my view, in light of the questions put to him, it was unreasonable
for the Board to conclude that Mr. Jumbe’s answer displayed a lack of fear of
those persons he claimed had threatened him.
[14]
Based on the foregoing, I am satisfied that the Board’s conclusion that
Mr. Jumbe did not fear persecution in Zimbabwe was unreasonable. I understand
that others in Mr. Jumbe’s circumstances might have left Zimbabwe sooner and
claimed refugee protection earlier. However, his personal resources and means,
and the opportunities at his disposal to visit and consult with family members
and others before arriving in Canada, do not necessarily defeat or claim to
fear political persecution, given the other evidence. Accordingly, I must allow
this application for judicial review and order a new hearing before another
panel of the Board. Neither party proposed a question of general importance for
me to certify, and none is stated.
JUDGMENT
THIS COURT’S JUDGMENT IS
that
1. The
application for judicial is allowed. The matter is referred back to the Board
for a new hearing before a different panel;
2. No question
of general importance is stated.
“James
W. O’Reilly”
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