Date: 20080613
Docket: IMM-3677-07
Citation: 2008 FC
738
Ottawa, Ontario, June 13th 2008
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
MARIA
MBANGA
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review of the decision of the Immigration and Refugee
Board (the Board), dated August 17, 2007, that the applicant was neither a
Convention refugee nor a person in need of protection.
[2]
The
applicant is a citizen of Zimbabwe where she was a teacher until
she left for the United
States in 1999.
She alleges that, starting in 1997, teachers were perceived as an enemy of the
Zimbabwean state and started experiencing problems.
[3]
According
to her Personal Information Form (PIF) narrative, she decided to go to the United States “with the hope of improving
[her] educational qualifications to help build a better future for [her]
country”. She studied and worked in Texas
for seven years.
[4]
On July
25, 2006, she arrived in Canada and applied for refugee
protection based on her political opinion. Although she had never been
involved actively in a political party in Zimbabwe, she claims that she would
be in danger in the event of a return to her country as she is a teacher, and
also because her cousin, Mr. Wilfred Mbanga, is a vocal journalist in exile in
the United Kingdom as a result of his intimidation and arrest in 2001. She
also stated that her family suffered many problems during the Independence War.
[5]
The Board
acknowledged that all political opponents suffer human rights violation in Zimbabwe, and also noted that teachers
are being targeted by the government because of their real or imputed support
to the opposition party. However, the Board member noted an improvement of the
teachers’ situation in 2003, and therefore found that documentary evidence
written before that date did not reflect the current situation.
[6]
The Board
also mentioned that, at the time the applicant left the country in 1999, the
applicant had never had any problems with the government, and had never been
politically active or perceived as such. She therefore adopted the comments
contained in the Home Office Operational Guidance Note issued in July 2007, to
the effect that “[b]eing a teacher will not itself give rise to a well-founded
fear of persecution – the key issue is whether the claimant has been or is
perceived to have been engaged in political activity so as to be of serious
adverse interest to the authorities”.
[7]
The Board
also gave little weight to a friend’s letter stating that the applicant was an
active and vocal teacher who suffered intimidation in Zimbabwe, since the applicant herself mentioned
that she had never been politically active or harmed by the government. As to
that friend’s assertion that the applicant left Zimbabwe when the intimidation
became too much, the Board pointed out that it contradicted the applicant’s PIF
and testimony at the hearing where she said that she left her country to
improve her qualifications as a teacher.
[8]
Regarding
her fear of persecution based on her name, the Board member acknowledged that
the applicant’s cousin is a famous journalist and political opponent in exile.
She concluded, however, that not every person bearing the name Mbanga is at
risk in Zimbabwe. As a result, her
application for refugee protection was rejected.
I. Issues
[9]
The
applicant raised a number of issues, which can be conveniently summarized as
follows:
a. Did the Board err in
concluding that the applicant is not at risk?
b. Did the Board err in failing
to conduct a section 97 analysis?
II. Standard of review
[10]
In light
of the recent decision by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, 164 A.C.W.S.
(3d) 727, issues of fact must be assessed against a standard of
reasonableness. Accordingly, this Court must determine whether the decision
falls within a range of acceptable outcomes that are defensible in respect of
the facts and law. As stated by the Supreme Court, “reasonableness is
concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process” (at para. 47). This is the
standard that I will apply to the first of the two issues.
[11]
As to the second issue, it requires the Court to determine
whether the Board appropriately applied its obligations under section 97 to the
facts of this particular case. That is a question of mixed law and fact, and
thus should also be assessed according to the standard of reasonableness.
III. Analysis
a. Did
the Board err in concluding that the applicant is not at risk?
[12]
The
documentary evidence shows that the Zimbabwean government tends to suppress
political opponents of all kinds. Regarding the situation of teachers, the
2006 UK Home Office Report is very relevant, as it is (according to the
applicant’s own submission) “the most complete, recent and authoritative
account” of the situation in Zimbabwe. This report states that teachers have
been targeted in the past because of their real or imputed support of the opposition
party. It goes on to report that since 2003, there was a slight improvement in
their situation, even if intimidation and assaults were still reported in
2004. It concluded that the mere fact one is a teacher does not give rise to a
well-founded fear of persecution:
3.7.8 Conclusion. Each case must
be decided on its individual facts. Being a teacher will not of itself give
rise to a well-founded fear of persecution – the key issue is whether the
claimant has been or is perceived to have been engaged in political activity so
as to be of serious adverse interest to the authorities. The level of activity
required to bring a teacher to the serious adverse attention of the Zimbabwean
authorities is likely to be lower than that for activists in some other walks
of life. Teachers are particularly vulnerable because their activities are
open to greater scrutiny than those in less public positions, and because the
authorities and associated groups are wary of the influence they could have on
their students.
[13]
Given the
facts in this case, and given that there is recent evidence from a respected
source in support of her finding, it was open to the Board member to find that
the applicant was not at risk upon return to her country. The applicant has
not brought forth credible evidence that she was targeted or at risk of being
targeted.
[14]
During an
interview with an immigration officer at the Port of Entry, the applicant
declared that she was afraid of returning to Zimbabwe as she had family members who had been persecuted
by the present government. She explained that she was traumatised by those
past experiences and that she has always been victimized because her name is
Mbanga. However, she admits that she was never personally targeted by the
Zimbabwean government.
[15]
In her
PIF, the applicant explained that she left Zimbabwe in order to improve her educational
qualifications to help build a better future for her country. When she
testified at the Board’s hearing, she said that she left Zimbabwe for educational purposes but
she intended to go back to her country afterwards to help in the reconstruction
process. She did mention in her PIF that she would be in danger in the event
of a return because she is a teacher and her family is seen as political
opponents of the regime. But it is not entirely clear she also feared
political persecution at the time she left the country.
[16]
The Board
member concluded that there was no evidence to support the applicant’s
involvement in political activities, except for the letter of her friend, to
which she gave little weight because it was not very specific as to how the
applicant was active and contradicted the applicant’s own statement. She also
pointed out that the applicant was a member of the Zimbabwe Teachers’
Association, an organization sympathetic to the government according to an
article from Africa Reports.
[17]
Finally,
the Board examined the allegation that the applicant would be targeted for
sharing the Mbanga name with Mr. Wilfred Mbanga, a journalist and political opponent
who has been in exile in the United
Kingdom for
close to 40 years. The Board recognized the reputation of Mr. Mbanga and the
fact that he is known to the Mugabe regime in Zimbabwe. However, the Board found that this
does not signify that all individuals with the Mbanga name are at risk in Zimbabwe. While the situation of a
similarly-situated person is clearly relevant in assessing a refugee claim, I
do not believe that the applicant’s situation can be compared to her cousin’s.
She has never been politically active, she has never been targeted as a
citizen, teacher or bearer of the Mbanga name in this 40-year period, and she
was able to become a teacher in her country.
[18]
On the
basis of the foregoing, the Board member could reasonably find that the applicant
would not be at risk as a teacher in the event of a return in Zimbabwe. The applicant did not
provide any evidence that she would be of serious adverse interest for the
authorities, on the basis of her political activities or of her imputed support
of the opposition party. As for the applicant’s argument that the Board failed
to consider her fear on “cumulative grounds”, it is without merit since none of
the grounds raised by the applicant, either considered separately or in
conjunction with the others, give rise to a risk of persecution.
b. Did the Board err in
failing to conduct a s. 97 analysis?
[19]
The
applicant asserts that the Board failed to conduct a separate section 97
analysis. She believes that this analysis was required in the absence of any
adverse credibility findings and by the fact that the Board acknowledged that
she is a Zimbabwean teacher whose cousin and brother are known activists.
[20]
There is
no doubt the Board needs to make an independent determination under section 97
of the Immigration and Refugee Protection Act (S.C. 2001, c. 27). As
this Court repeatedly stated, there may well be cases where a refugee claimant
is found not to be credible with respect to his subjective fear of persecution,
but where the country conditions are such that the claimant’s particular
circumstances make him or her a person in need of protection. The elements
required to establish a claim under sections 96 and 97 are not the same, and a
negative determination of a refugee claim may therefore not be determinative of
a claim for protection: see, inter alia, Nyathi v. Canada (MCI),
2003 FC 1119, 125 A.C.W.S. (3d) 873; Bouaouni v. Canada (MCI),
2003 FC 1211, 126 A.C.W.S. (3d) 686; Ayaichia v. Canada (MCI),
2007 FC 239, 309 F.T.R. 251.
[21]
That being
said, the failure to proceed to a separate section 97 analysis is not fatal in
every case. Where, as here, there is no evidence supporting a finding of a
person in need of protection, this analysis will not be required: see, for
example, Ndegwa v. Canada (MCI), 2006 FC 847, 55 Imm. L.R. (3d)
108; Soleimanian v. Canada (MCI), 2004 FC 1660, 135 A.C.W.S. (3d)
474; Brovina v. Canada (MCI), 2004 FC 635, 130 A.C.W.S.
(3d) 1002.
[22]
For all
these reasons, Mrs. Mbanga has failed to demonstrate that the Board committed
any reviewable error and consequently, the application for judicial review is
dismissed. No question for certification has been submitted, and none will be
certified.
ORDER
THIS COURT ORDERS that this application for judicial
review is dismissed. No question of general importance is certified.
"Yves
de Montigny"
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