Date: 20080521
Docket: IMM-4834-07
Citation: 2008 FC 631
Ottawa, Ontario, May 21,
2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
CONSTANTINE
CHOTO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
Applicant, a citizen of Zimbabwe, claimed refugee status
and protection based on perceived political opinion and risk to returnees from
abroad. The claim was denied and this is the judicial review of that claim.
II. BACKGROUND
[2]
The Applicant alleged
that his family had been persecuted by the ZANU-PF since 1983, when his
grandfather (a colonial police officer) was killed for being an alleged
anti-Mugabe dissident. His uncle (an outspoken journalist) was arrested,
detained and tortured in 1999; he subsequently left the country and claimed
asylum in the U.S. (One of the Applicant’s sisters also succeeded in claiming
asylum in the U.S. in 2007, while another sister allegedly fled to Botswana.)
[3]
The Applicant claimed
that he narrowly escaped an attack by the ZANU-PF youth militia against his
school in December 1999. He also alleged that a group of ZANU-PF youth came to
the family home in March 2005 and threatened them because they were not
registered members of the ZANU-PF party and were thus believed to be supporters
of the opposition.
[4]
In May 2005, the
government razed an entire neighbourhood; among the homes destroyed, the
Applicant alleged, was his family’s, which thus led to their dispersal.
[5]
The Applicant went to
the U.S. in 2001 to study biology and chemistry on
a merit scholarship at the University
of South Maine.
[6]
On May 27, 2006, he was
arrested in Minneapolis upon suspicion that he was using a stolen
credit card (he testified at the hearing that he shared the card with his
cousin, who is now allegedly in the U.K.). He was
apparently uncooperative with the police and was arrested and charged with
obstruction (during the altercation, the police used maceto subdue him).
[7]
According to his former
U.S. counsel, he had been offered a plea bargain, which he
rejected.
[8]
A jury trial (it is not
clear if this was only related to the obstruction charge) was scheduled on
August 29, 2006, but the Applicant did not appear in court; a bench warrant
remains outstanding.
[9]
The Applicant arrived
in Canada on June 29, 2006 and made his refugee claim at the border, where he
was interviewed by a CBSA officer, who asked him about the U.S. criminal
charges (which were described as forgery and assault).
[10]
The Applicant stated
that the assault charge was amended to obstruction and the forgery charge was
dropped. This was after the officer had reviewed the refugee application form
with the Applicant, who had answered “no” when asked if he had ever been
arrested or detained by the police in any country.
[11]
The Refugee Protection Division
(RPD) rejected the Applicant’s claim on the basis of his failure to testify in
a straightforward manner, lack of credible evidence regarding the allegations
of persecution, and lack of an objective basis to fear returning to Zimbabwe.
[12]
The RPD reviewed the evidence and
testimony with respect to the criminal charges and the U.S. and found that the
Applicant attempted to misrepresent the situation with Canadian immigration
officials, which raised doubts in the RPD’s mind about the Applicant’s motive
for seeking protection in Canada.
[13]
As
to the other aspects of the Applicant’s claim, the RPD found that he had
produced insufficient credible or trustworthy evidence to support his claim.
For example, the Applicant relied upon his sister’s successful refugee claim
but produced no records to substantiate its relevance, especially as there was
a sexual abuse component to the sister’s case. Further, the Applicant’s
allegation that he was attacked in 1999 by ZANU-PF youth militia was not credible
because the militia did not exist until 2001. The RPD had cogent reasons for
not accepting each of the factual underpinnings of his subjective fear of
persecution.
[14]
On
the issue of his fear as a returning Zimbabwean, the RPD held that since the
Applicant had admitted that neither he nor his family were involved in politics
nor were they supporters of the opposition or MDC, the Applicant would not come
to the attention of the authorities nor would he face a serious possibility of
persecution.
[15]
As
to the alleged possibility that he would be detained or interrogated for being
a “sell out”, the RPD concluded that he could justify his absence from Zimbabwe based on his
studies in the United States.
III. ANALYSIS
[16]
With
the clarification on standard of review expressed in Dunsmuir v. New
Brunswick,
2008 SCC 9, the applicable standard in this instance is reasonableness,
particularly as the findings in this case are based on credibility. The type of
findings in this case, based in part on observation, consistency and
documentary evidence (or lack thereof) are deserving of a measure of deference
so long as there is a proper and reasonable connection to the conclusion.
[17]
In
view of the problems with the Applicant’s evidence, the RPD’s conclusion as to
credibility should not be disturbed. The RPD performed a thorough analysis of
the Applicant’s evidence and gave cogent reasons for finding it wanting.
[18]
As
to the RPD’s findings on objective fear – that which might be faced by all
returnees in the same position as the Applicant - firstly, I find that the RPD
did conduct a s. 97 analysis. As I held in Balakumar v. Canada (Minister of
Citizenship and Immigration), 2008 FC 20, the form in which a s. 97
analysis appears is considerably less important than that it be done and done
properly. The RPD turned its mind to the s. 97 issues in the Applicant’s case.
[19]
The
evidence of the risk to returnees is found in the 2007 U.K. Home Office Report
on Zimbabwe and relates to those Zimbabweans rejected by the U.K. with whom
the Mugabe government has had a “strained” relationship – in fact, an openly
hostile one on the part of Mugabe.
[20]
The
Applicant produced no evidence that returnees from the U.S. or Canada, qua
returnees, were subject to the same treatment. Add to that fact the non-political
nature of the Applicant and his family and the RPD’s decision is reasonable in
the sense of being within a range of reasonable conclusions.
[21]
Lastly,
the Court has examined the decision as a whole, and even taking into account
the somewhat tentative conclusion that the Applicant could be less than
forthright about the reason for his absence (U.S. schooling only), the decision
is reasonable and should not be overturned.
IV. CONCLUSION
[22]
Therefore,
this judicial review will be dismissed. I concur with counsel that there is no
issue for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed.
“Michael
L. Phelan”
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