Date: 20080502
Docket: IMM-4128-07
Citation: 2008 FC 546
Ottawa, Ontario, May 2, 2008
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
IRENE
MUCHIRAHONDO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of Refugee Protection
Division of the Immigration and Refugee Board (the Board), pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (Act), in which the Board found that the applicant is neither a
Convention refugee nor a person in need of protection.
ISSUES
[2]
Only
one question is raised before this Court: did the Board make an unreasonable
error in its assessment of the applicant’s refugee claim by relying on perverse
considerations or unsound reasoning?
[3]
For
the reasons that follow, it is my opinion that the Board’s decision is reasonable
and therefore, the application for judicial review shall be dismissed.
FACTS
[4]
The
applicant is a citizen of Zimbabwe, born on July 7, 1963. She
claims protection in Canada pursuant to sections 96 and 97 of the Act
on the grounds of political opinion, namely her support for the Movement for
Democratic Change (MDC). The applicant has a husband and three children who
remain in Zimbabwe.
[5]
The
applicant alleges that she attended an MDC meeting in Bulawayo in March
2006, which was broken up by the police before it began. The applicant and
other members of MDC boarded a bus to leave the meeting. The bus was also
boarded by Zimbabwe African National Union – Patriotic Front (ZANU-PF) youth
who verbally abused and taunted the MDC supporters.
[6]
At
her destination, the applicant and some of her friends and fellow MDC
supporters got off the bus, but were pursued by the ZANU-PF youth who ripped their
clothes and threw stones at them. The ZANU-PF youth followed the applicant as
far as her home and only left when they reached her gate and were confronted by
her dogs. Following the incident, the ZANU-PF youth continued to come by her
house where they threw fruit peels and stones at her dogs and her house, and
chased the applicant’s children.
[7]
The
applicant alleges that she was visited by Central Intelligence Office (CIO)
agents at her place of employment on April 8, 2006. They questioned her about
her political activities and her financial support of the MDC and threatened to
stop her. The applicant claims that she was followed by CIO agents until
approximately June 1, 2006.
[8]
The
applicant left Zimbabwe for the United States on June 29, 2006 and
stayed with a friend in Virginia until she could make
arrangements to come to Canada. She entered Canada on July 26,
2006 and sought refugee protection the same day.
DECISION UNDER REVIEW
[9]
The
Board dismissed the applicant's claim on the basis of her credibility.
It gave the following reasons for determining that the applicant did not
provide credible or trustworthy evidence in support of her demand:
a) First, the
Board accepted that the applicant’s identity and nationality were established,
as was her membership in the MDC party.
b) The Board
found that the applicant provided no evidence that she attended an MDC meeting
in March 2006 or that she was harassed by ZANU-PF youth, other than her oral
testimony. The Board found it reasonable that the applicant could not provide
an article from a local paper confirming that the incident occurred, but
found it unreasonable that she did not provide letters from other MDC members
attesting to her attendance at the meeting or the harassment that ensued. The
Board also found it unreasonable that the applicant did not provide any
letters, photos or other evidence supporting the damage to her home.
c) The Board
noted that neither the applicant nor her children were ever harmed by the
ZANU-PF youth, and that the harassment ended a few weeks following the
meeting. The Board found that taunts from youth did not amount to persecution,
and that the applicant failed to demonstrate that she was persecuted by ZANU-PF
youth.
d) The Board
determined that the applicant could not provide credible or trustworthy
evidence that she was interviewed and threatened by CIO agents in April 2006 at
her place of employment. These allegations were not recorded in her Port of
Entry (POE) notes. The Board found the explanation, that she did not have
enough time at the boarder to give her full story, to be unreasonable because
the claimant had time to prepare her documents while staying in Virginia. The
Board drew a negative inference from the discrepancies between the information
provided at the POE, the Personal Information Form (PIF) on one hand, and at
the time of the hearing before the Board.
e) The Board
drew a negative inference from the applicant’s failure to provide any evidence
from her employer attesting to the visit from CIO agents, given that the agents
came to her workplace and that she informed her boss of the visit. The Board
noted that the applicant had two months to gather such evidence prior to her
departure from Zimbabwe. The Board also drew a negative inference from
the applicant’s failure to report the incident and the fact that she was
followed. The applicant offered no explanation for this omission.
[10]
The
Board determined that there was no serious possibility that the applicant would
be persecuted if returned to Zimbabwe:
a) The Board
noted that the applicant held no official position with the MDC party; she
merely distributed flyers, attended meetings, and at least one rally. The Board
also noted that the applicant had not become involved with the MDC party in Canada.
b) The Board
drew a negative inference from the applicant’s failure to provide any evidence
of her involvement with the MDC other than a membership card. The Board found
that her modest activities would not raise her profile to government
authorities.
c) The Board
gave little weight to the applicant’s allegation that three women had been
jailed for distributing flyers, because the information was communicated to the
applicant by her husband, and was therefore not reliable.
ANALYSIS
Standard of Review
[11]
The
standard of review applicable to a decision of the Board on questions of fact
is reasonableness. The jurisprudence of this Court has consistently found that
findings of fact, and more particularly credibility, made in the context of a
refugee claim, are subject to the highest level of deference (Aguebor v. (Canada) Minister of
Employment and Immigration, [1993] F.C.J. No. 732 (F.C.A)). Following the
Supreme Court of Canada’s decision in Dunsmuir v. New Brunswick,
2008 SCC 9, determinations regarding the credibility of a refugee claimant made
by the Board, should continue be subject to deference by the Court, and are
reviewable on the standard of reasonableness (Dunsmuir, above at paragraphs
47, 55, 57, 62, and 64).
[12]
For
a decision to be reasonable there must be justification, transparency and
intelligibility within the decision making process. The decision must fall
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and the law (Dunsmuir, above at paragraph 47).
Assessment of credibility
[13]
The
applicant submits that the Board erred in impugning her credibility in several
respects. I will address them each in turn.
[14]
The
applicant submits that the Board erred by drawing a negative inference from the
lack of evidence corroborating her attendance at the MDC meeting and the damage
to her house. The applicant argues that the MDC party has a policy not to
provide letters of support to members who seek asylum.
[15]
Similarly,
the applicant argues that it was unreasonable for the Board to draw a negative
inference from her failure to provide an affidavit or other evidence from her
employer attesting to the fact that CIO agents visited her at her officer.
[16]
The
applicant’s first argument does not consider that the Board did not require
that she submit an official letter from the MDC. The decision refers to “letter
from other MDC members … attending the rally”. Since the applicant stated in
her PIF that she attended the meeting with friends, I agree with the
respondent’s submission that it was reasonable to expect that the applicant
could have provided a letter from one of these friends or members in support of
her allegation. Further, the policy of the MDC indicates that branches of the
MDC located abroad are not authorized to provide letters in support of asylum
claims. Instead they direct such requests to an email address. The MDC indicates
an avenue by which requests for support of refugee claims can be made; the
applicant did not pursue this avenue.
[17]
In
relation to the applicant’s failure to provide a letter from her employer, she
claims that this would have exposed her employer to a dangerous risk; however,
the applicant does not indicate how the CIO would have come to know about
corroborating evidence given by the employer to the applicant for use in a
proceeding in Canada.
[18]
Further,
the onus to present credible evidence in order to establish the
well-foundedness of the fear and need for protection falls upon the applicant. The
Board is entitled to conclude that evidence is not credible or trustworthy, if
the applicant fails to corroborate her claims (Ortiz Juarez v. Canada (Minister of
Citizenship and Immigration), 2006 FC 288, [2006] F.C.J. No. 365 at
paragraph 7).
[19]
The
applicant argues that the Board perversely minimized her experience as well as
that of her family at the hands of the ZANU-PF youth. The Board concluded that
the treatment of the applicant by ZANU-PF youth amounted only to harassment,
which ended a few weeks following the meeting. The Board noted that the family
continues to live without harassment today.
[20]
It
is my opinion that the Board did not make an unreasonable error in concluding
that the treatment of the applicant did not amount to persecution, and does not
thereby attract international protection.
[21]
Persecution
has been defined by the Courts as an affliction of repeated acts of cruelty or
a particular course or period of systematic infliction of punishment. Mere
harassment or discrimination is insufficient (Rajudeen v. Canada (Minister
of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.), Olearczyk
v. Canada (Minister of
Employment and Immigration) (1989), 8 Imm. L.R. (2d) 18 (F.C.A.),
Murugiah v. Canada (Minister of Employment and Immigration) (1993), 63
F.T.R. 230 (F.C.T.D.) and Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689). It was open to the Board to assess
the facts alleged by the applicants and determined that they did not amount to
repeated acts of cruelty or systematic infliction of punishment, amounting to
persecution.
[22]
Finally,
the applicant submits that the Board erred by impugning the applicant’s
credibility on account of her failure to mention the alleged actions of the CIO
in the POE notes. The applicant contends that there was little room for
a narrative in the forms provided.
[23]
The
respondent admits that there is limited space on the forms provided as part of
the POE materials, but it would nevertheless have been reasonable for the
applicant to note that she feared the CIO as well as ZANU-PF, particularly
since she claimed that it was the actions of the CIO agents that led to her
decision to leave Zimbabwe.
[24]
It
is open to the Board to draw a negative inference with respect to the
applicant’s credibility on the basis of inconsistencies between different
versions of the applicant’s story. The omission of the fact that CIO agents
visited the applicant at work, threatened her, and subsequently followed her is
central to the applicant’s claim, and as such the Board’s reliance on them was
reasonable.
[25]
The
fact that the applicant recounted only the visit and threats of the CIO agents
in her PIF, and omitted the fact that they followed her, further supports the
negative inference drawn by the Board.
Risk Assessment Based on
MDC Membership
[26]
The
applicant submits that mere membership or support for an opposition party in Zimbabwe constitutes
sufficient reason to have a well-founded fear of persecution. The applicant
submits that the Board erred in not coming to this conclusion, and refusing her
claim. By so doing, the Board either ignored or perversely assessed the
documentary evidence. In support of this allegation, she cites several
documentary sources.
[27]
Notably
the U.S. Department of State’s Country Reports on Human Rights Practices
(2006), released in early 2007 states the following:
Zimbabwe, with a population of approximately 11.6
million, is constitutionally a republic, but the government, dominated by
President Robert Mugabe and his Zimbabwe African National Union Patriotic Front
(ZANU PF) since independence, was not freely elected and is authoritarian. The
last two national elections, the presidential election in 2002 and the
parliamentary elections in March 2005, were not free and fair. Although the
constitution allows for multiple parties, the ruling party and security forces
intimidated and committed abuses against opposition parties and their
supporters and obstructed their activities. The divided Movement for Democratic
Change (MDC) is the country's principal opposition; despite the fraudulent
elections, the MDC factions held 41 of 120 elected seats in the House of
Assembly and seven of 50 elected seats in the Senate at year's end. The
civilian authorities generally maintained control of the security forces, but
often used them to control opposition to the ruling party.
…
Although the constitution prohibits
torture and other cruel, inhuman, or degrading treatment or punishment,
security forces continued to engage in such practices. Police reportedly used
excessive force in apprehending and detaining criminal suspects, as well as
ordinary citizens, for holding meetings or participating in demonstrations.
Government supporters continued to assault suspected opposition members.
Violent confrontations between various youth groups aligned with either the
government or the opposition continued.
Human rights groups reported that
physical and psychological torture perpetrated by security agents and
government supporters increased during the year. The Zimbabwe Human Rights NGO
Forum recorded 337 cases of torture during the first nine months of the year. Youth
militia forces, trained by ZANU-PF, were deployed to harass and intimidate
suspected supporters of the MDC and Zimbabwe Congress of Trade Unions (ZCTU).
[28]
Other
sources cited by the applicant relate particular accounts of violence and
assault perpetrated by ZANU-PF militia against opposition supporters, as well
as general statements indicating that supporters of MDC have been attacked and
tortured. The Court also notes that Zimbabwe is currently the
subject of a temporary stay of removals, pursuant to ministerial policy.
[29]
The
respondent counters the applicant’s submissions by submitting that the
applicant does not match the profile of the people referred to in the documents
cited. The respondent argues that the documentary evidence does not demonstrate
that all members of MDC face a well founded fear of persecution in Zimbabwe regardless
of profile or intent, and notes that the Board considered the applicant to have
only a modest involvement with the MDC party.
[30]
The
applicant has not demonstrated that the documentary evidence raises a
particularized fear in her particular circumstances. The passage from the DOS
Reports cited above indicates that the youth militia are deployed to harass and
intimidate, and that violent confrontations occurred between youth groups of
opposing parties. I therefore conclude that it was open to the Board to find
that the applicant did not face an objective risk of persecution. Though Zimbabwe currently
faces significant political upheaval and violence by ZANU-PF supporters is widespread,
a risk of generalized violence is insufficient to trigger the automatic success
of a refugee claim.
[31]
For
the foregoing reasons, I find that the Board’s decision was reasonable, and
there are no grounds upon which this Court should intervene.
[32]
The
parties did not submit questions for certification and none arise.
JUDGMENT
THIS COURT ORDERS
that the application for judicial review is
dismissed and no question is certified.
“Michel
Beaudry”
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