Date: 20080501
Docket: IMM-4095-07
Citation: 2008 FC 568
Toronto, Ontario, May 1, 2008
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
FUNGAI NYOKA
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction and Background
[1]
Fungai
Nyoka is a citizen of Zimbabwe who fled that country
in March of 2000, resided in the United States without seeking its protection
until April 2006 when she crossed the Canadian border at Windsor to seek asylum.
Her claim was denied by the Refugee Protection Division (the tribunal) on
September 17, 2007. She seeks a review of that decision in this judicial review
proceeding.
[2]
The
central element of her fear is the Government in Zimbabwe and its
controlling party the African National Patriotic Front (ZANU-PF) because of her
involvement in what became the main opposition party, the Movement for
Democratic Change (MDC).
[3]
She
alleges she was active in 1999 in the MDC at the early stages of the
establishment of that political party in which her brother then and now has a
leadership role. Her activities in the MDC are said to have diminished when she
resided in the United States but re-ignited when she came to this
country.
[4]
She
alleges her activities in the MDC in 1999 forced her to flee Zimbabwe where she
was employed as an Executive Secretary at the Development Bank. She says she
received several threatening phone calls and experienced an attempted break-in
at her apartment in Harare both of which she attributes to the militant youth
militia of the ZANU-PF.
II. The tribunal’s Decision
[5]
The
tribunal first found she was affiliated with the MDC as she had produced a
membership card. It found, however, “the claimant could not provide credible or
trustworthy evidence related to her allegations of past persecution by militias
or government agents because of her brother’s political activities as well as
her activities with the MDC…”.
[6]
The
tribunal discovered a major contradiction in the applicant’s testimony which
focussed on when the notorious Border Gezi or Green Bombers, a wing of the ZANU-PF
had been established. Referring to a British Home Office Report, the tribunal stated
the Green Bombers and the ZANU-PF’s Youth Militia were formed in 2001 which is
after the applicant fled the country because of them. The tribunal wrote:
The panel assigns significant weight
to the accounts in the Home Office Report and finds that the Border Gezi and
ZANU-PF Youth Militia were formed in 2001, which would be well after the time
the claimant left for the United
States. As
such, the panel finds that the claimant did not receive telephone
threats and that her door was not vandalized as she testified. This
finding is further supported by the lack of evidence provided in support of
the claims of vandalism, such as a photo of the door, a note from the neighbour
who saw the men at the door, or a report from the landlord. The claimant was
asked to explain why she did not have an affidavit or any evidence of the
vandalism from her neighbour, and she explained that she did not ask for an
affidavit. The panel found this explanation unreasonable as the alleged
vandalism to her door was the issue which forced the claimant and her son into
hiding and pushed her to leave Zimbabwe.
[Emphasis mine]
[7]
The
tribunal determined she could not provide any evidence of the calls pointing
out her brother’s affidavit did not mention such calls or the vandalism despite
her evidence she had told her brother about them. The tribunal found a
contradiction in her testimony with that contained in her brother’s affidavit
relating to whether she had experienced any trouble at work. She said no but
her brother wrote the Green Bombers found out the applicant was his sister and
this information “did not go down well with some workmates”. The tribunal also
pointed to the fact she had not mentioned the telephone threats and
vandalism to her door at the Point Of Entry (POE) interview.
[8]
As
to the applicant’s past persecution, the tribunal concluded:
Because of the omission of the telephone
threats and vandalism from both the claimant’s POE notes and her brother’s
affidavit; because of the lack of credible evidence in support of the claims;
and because the claimant’s allegations of being threatened by ZANU-PF Youth
Militia in 1999 Is not supported in the documentary evidence, the panel finds
that the claimant has not provided credible evidence in support of her claim.
[9]
The
tribunal then discussed and concluded she did not have a well founded fear of
persecution upon her return to her country of nationality. It based this
conclusion on her failure to seek refugee status in the U.S., on her low
profile in MDC activities when she was in Zimbabwe noting the party was in its
formative period, her non involvement with the MDC in the U.S. and her
peripheral involvement with that party while in Canada.
[10]
The
tribunal also found her fear of persecution on account of her brother’s
political activities was not well founded principally because she could not
provide any evidence her brother and the remaining members of the family had
experienced any problems in Zimbabwe. The tribunal also concluded
her fear of being interrogated at the airport and arrested because she had been
living abroad for such a long time was not well founded because she had an
explanation for living abroad – two failed marriages – which would be believed
by the authorities and, moreover, the documentary evidence referring to the British
Home Office Report dated April 2006 “indicates a reduction in the number of
politically motivated killings and harassment”. On this point the tribunal
wrote:
The report indicates that: “Individuals
targeted for harassment, torture, and killing tended to be active members of
the opposition or high-level ZANU-PF members in disfavour with the ruling party.”
[Emphasis mine]
[11]
The
tribunal summarized and concluded its findings this way in terms of sections 96
and 97 of the Immigration and Refugee Protection Act:
The claimant has failed to provide
credible evidence to support her allegations of past persecution in Zimbabwe. The claimant has failed to
demonstrate that her past and present involvement in the MDC party would raise
her profile among government officials in Zimbabwe. The claimant has also failed to provide
credible evidence that her family has been persecuted because of her brother’s
political involvement. As such, the panel finds that the claimant does not face
a serious possibility of persecution should she return to Zimbabwe. For the same reasons, the
panel finds that the claimant would not be subject personally to a risk to her
life, or a risk of cruel and unusual treatment or punishment, or a danger,
believed on substantial grounds to exist, of torture, if she returns to
Zimbabwe.
[Emphasis mine]
III. The applicant’s arguments
[12]
The
applicant raises three arguments:
-
First,
in breach of natural justice, the tribunal made a significant error which is
the foundation for its finding that some of the applicant’s testimony was not
credible. This error relates to when the Youth Militia and Green Bombers were
formed. The issue of when these organizations had been formed was not raised at
the hearing. The only explanation is that the tribunal member, doing his own
research, discovered this fact but such finding was contrary to available
documentary evidence which the applicant proposed to submit to the Court.
-
Second,
the tribunal failed to conduct a section 97 analysis.
-
Third,
the tribunal failed to consider relevant evidence on then current country
conditions which is directly contrary to one of its main findings.
IV. Analysis
(a) the standard of review
[13]
In
this case, the applicable standard of review depends on the issue being decided.
Breach of fairness by the tribunal commands no deference from this Court.
Failure to comply with a statutory requirement (the conduct of a section 97
analysis) is an error of law reviewable on the correctness standard and failure
to consider relevant evidence is a breach of paragraph 18.1(4)(d) of the Federal
Courts Act resulting in unreasonable decision.
(b) Conclusions
[14]
The
applicant has persuaded me the three errors he identified are substantiated and
dictate this judicial review be allowed.
[15]
In
the circumstances, I am prepared to admit the applicant’s new evidence which
establishes the Border Gezi and the militant Youth Militia were active during
the 2000 parliamentary elections in direct contradiction to the tribunal’s
finding and consistent with the applicant’s testimony.
[16]
There
is no question the tribunal’s error as to whether ZANU-PF wings such as the
youth movement and the Green Bombers was significant. The real question,
however, is whether the error was determinative because the tribunal had other
reasons to question the applicant’s fear.
[17]
It
is a well accepted principle that in a judicial review proceeding the
evidentiary record before the Court must be the same as it was before the
tribunal subject to two exceptions: to establish a jurisdictional error or
where the finding is made in breach of natural justice or procedural fairness
(See McFadyen v. Canada (Attorney General) 2005 FCA 360
at paragraph 15).
[18]
I
am of the view the tribunal’s finding on when the Green Bombers and the ZANU-PF
youth group was established was arrived at in breach of natural Justice because
the tribunal found its evidence on the point by conducting its own research
which purportedly spawned a contradiction which was not put to the applicant
for comment. Not only was the contradiction not blatant or obvious it did not
even arise during the hearings. See Rasiah v. Canada (Minister of Citizenship
and Immigration) 2004 FC 1379 and Qureshi v. Canada (Minister of
Citizenship and Immigration) 2007 FC 912.
[19]
In
the circumstances, I find the tribunal’s error was determinative of the
tribunal’s finding the applicant had not suffered past persecution in Zimbabwe before she
fled. The tribunal said, based on this erroneous finding, it did not believe
the applicant had received threats and was the target of a vandalism attempt.
Without more, in my view, it would be problematic to quash the tribunal’s decision
on this error alone. There was more however.
[20]
Counsel
for the applicant has substantiated a second error made by the tribunal and
that is its failure to acknowledge, consider and discuss relevant documents.
[21]
Those
documents are contained in the applicant’s application record and are exhibit E
submitted at the hearing and exhibit F the public announcement dated July 13,
2007 from the U.S. State Department on the risks of travelling to Zimbabwe
because of the Government’s authorization to its security forces to suppress
all dissent and to “use violence including lethal force against anyone that the
Government perceives as an opponent”. These documents paint a very different
picture than the one portrayed by the tribunal which gives rise to a duty to
comment, analyse and say why it did not accept this evidence. The tribunal did
not do so.
[22]
Finally,
the tribunal erred in not conducting a section 97 analysis in the circumstances
of this case. Several recent decisions of this Court, in the particular context
of the situation in Zimbabwe at the time have ruled that a separate section
97 analysis was required:
·
Where a
finding had been made that an applicant was a MDC member (See, Malunga v. Canada (Minister of Citizenship and
Immigration)
2007 FC 1259 and Maimba v. Canada (Minister of Citizenship and Immigration) 2008 FC 226).
·
Where
nationals are returning from abroad because they are perceived as supporters of
the MDC (See Taruvinga v. Canada (Minister of Citizenship and Immigration) 2007 FC 1264).
[23]
These
errors by the tribunal warrant this Court’s intervention.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this judicial
review application is allowed, the tribunal’s decision is quashed and the
applicant’s refugee claim is remitted for reconsideration by a differently
constituted panel. No certified question was proposed.
“François
Lemieux”
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