Date: 20080708
Docket: IMM-376-08
Citation: 2008 FC 845
Ottawa, Ontario, July 8, 2008
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
CHIPO SEKERAMAYI
SYDNEY
TONDERAI MARINGAPASI SEKERAMAYI
Applicants
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 the Refugee Protection
Division of the Immigration and Refugee Board (the Board) dated December 24,
2007 concluding that the applicants are not Convention refugees or persons in
need of protection under sections 96 and 97 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA).
FACTS
[2]
The
principal applicant, Chipo Sekeramayi, is a 28-year-old citizen of Zimbabwe; her minor
son is a five-year-old citizen of the United States. On August 1, 2006, the
applicants arrived in Canada and forwarded claims for refugee
protection on the basis of the principal applicant’s political opinion and the
fact that her father is a “high profile” member of the governing Zimbabwe
African National Union – Patriotic Front (the ZANU-PF).
[3]
In
1998, the principal applicant left Zimbabwe and moved to the United
States
with her mother to attend school. In 1999, the principal applicant entered into
a relationship with George James Maringapasi, an active supporter of the Zimbabwe opposition
party, Movement for Democratic Change (MDC). The couple’s relationship resulted
in the birth of the minor applicant. The relationship ended in October 2003.
[4]
The
principal applicant states that during her relationship with Mr. Maringapasi,
she became increasingly involved in the MDC, which angered both her family and
the ZANU-PF. The principal applicant states that during this time she began to
experience significant pressure from her family to end the relationship. She
also states that she began to receive many threatening letters and phone calls
warning her to “disassociate” herself from the MDC.
[5]
The
principal applicant states that if returned to Zimbabwe, she will be
subjected to torture, imprisonment, or even death at the hands of the ZANU-PF.
Accordingly, on August 1, 2006, she advanced this claim for refugee protection
under sections 96 and 97 of the IRPA.
Decision under review
[6]
On
December 24, 2007, the Board concluded that the applicants are neither
Convention refugees nor persons in need of protection. The basis of the Board’s
decision was that the applicants “failed to establish an objective or
subjective basis for their claim.” With respect to the principal applicant’s son,
the Board held at page 2 that there was no evidence establishing why the child
feared returning to the United States:
The designated representative, Chipo
Ruvimbo Sekeramayi, did not allege that there were any reasons for Sydney to
fear persecution on Convention grounds in the United States, or that removal to
the United States would be a risk to his life, or a risk of cruel and unusual
treatment or punishment, or a danger, believed on substantial grounds to exist,
of torture.
Thus, the Panel is not satisfied that the
minor claimant has a claim against the United States of America, as there is no well-founded
fear of persecution, or a risk to life or of harm from his country of origin.
[7]
With
respect to the principal applicant’s claim, the Board found that she would not
be at risk at the hands of her family upon return to Zimbabwe, stating at
page 4:
… The Panel is not persuaded that the
claimant’s father will harm or have her harmed should she return to Zimbabwe. This finding is strengthened
by the fact that she is no longer in a relationship with [Mr. Maringapasi],
which is the only condition that her father has ever placed on her.
Further, the Board found that many of the
letters and e-mails sent to the principal applicant were not of a threatening nature
and did not contain threats to her life or safety.
[8]
Finally,
the Board assessed the principal applicant’s involvement in the MDC, finding
that while she joined the party in 2000 or 2001, her participation was “very
minimal.” Further, the Board found that since arriving in Canada in 2006, the
principal applicant has not been active in the MDC because her recognizable
family name often causes her to be met with hostility by other party members.
On this basis, the Board concluded at page 5 of its decision:
The principal claimant, based on a
balance of probabilities, has failed to establish that she would be persecuted
should she return to Zimbabwe. Therefore, the Panel finds
that the principal claimant has not established a well-founded fear of
persecution, by reason of her actual or perceived political opinion or
membership in a particular social group. Therefore, the Panel concludes that
the principal claimant is not a Convention refugee.
ISSUES
[9]
The
applicant raises two issues for consideration:
1. Did the Board
err in applying an incorrect standard of proof with respect to its section 96
analysis; and
2. Did the Board
err by ignoring the objective evidence that the principal applicant was a
person in need of protection by virtue of her membership in the MDC?
STANDARD OF REVIEW
[10]
The
first issue before the Court is a question of law subject to review on a
standard of correctness: see Mugadza v. Canada (Minister of
Citizenship and Immigration), 2008 FC 122, [2008] F.C.J. No. 147 (QL)
at para. 10.
[11]
The
second issue concerns the Board’s factual findings, which are entitled to the
highest level of curial deference. In the past, this meant that such findings
would only be set aside if found to be patently unreasonable: see Aguebor v.
Canada (Minister of
Citizenship and Immigration) (1993), 160 N.R. 315 (F.C.A.). However, as
a result of the Supreme Court of Canada’s decision in Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] S.C.J. No. 9 (QL), it is clear that the standard of patent
unreasonableness has been eliminated, and that reviewing courts must confine
their analysis to two standards of review, those of reasonableness and
correctness. Accordingly, the deference to be accorded to the Board’s factual
findings mandates that the second issue be reviewed on a standard of
reasonableness according to a spectrum which warrants a high level of curial
deference.
ANALYSIS
Issue No. 1: Did the
Board err in applying an incorrect standard of proof with respect to its
section 96 analysis?
[12]
The
proper legal test for determining whether or not an applicant is a Convention
refugee under section 96 of the IRPA is whether there is a reasonable chance or
serious possibility that the claimant would be persecuted should he or she be
returned to their country of citizenship. As the Supreme Court of Canada held
in Chan v. Canada (Minister of Employment
and Immigration), [1995] 3 S.C.R. 593 at paragraph 120, in considering the
meaning of “Convention refugee” in paragraph 2(1)(a) of the former Immigration
Act, R.S.C. 1985, c. I-2, repealed:
¶ 120 Both the existence of the subjective
fear and the fact that the fear is objectively well-founded must be established
on a balance of probabilities. In the specific context of refugee
determination, it has been established by the Federal Court of Appeal in Adjei
v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680, that
the claimant need not prove that persecution would be more likely than not in
order to meet the objective portion of the test. The claimant must establish,
however, that there is more than a “mere possibility” of persecution. The
applicable test has been expressed as a “reasonable possibility” or, more
appropriately in my view, as a “serious possibility”. …
[13]
In
the case at bar, the applicant argues the Board erred in applying the more
stringent balance of probabilities standard to is finding that the applicant
would not be at risk of persecution on a Convention ground if returned to Zimbabwe. In support,
the applicant points to the Board’s reasons, where it states at page 5:
The principal claimant, based on a
balance of probabilities, has failed to establish that she would be persecuted
should she return to Zimbabwe. Therefore, the Panel finds that the principal claimant has
not established a well-founded fear of persecution, by reason of her actual or
perceived political opinion or membership in a particular social group.
Therefore, the Panel concludes that the principal claimant is not a Convention
refugee.
[Emphasis added.]
[14]
The
respondent, however, submits that the Board did not err in incorrectly applying
the balance of probability standard to its finding that the applicant was not a
Convention refugee under section 96 of the IRPA. Rather, according to the
respondent, when the Board made reference to the balance of probabilities
standard in the above-noted passage, it was doing so in relation to the “long
and detailed analysis” of the applicant’s evidence, and not in relation to the
risk of persecution that the applicant may face upon return to Zimbabwe.
[15]
In
reviewing the Board’s decision, I find that the Board addressed the standard of
proof issue at two points in its analysis. First, at page 4, the Board stated
in reference to an e-mail received by the principal applicant in 2007:
… Based on the claimant’s failure to provide
the purported letter from the embassy and the most recent e-mail from her
cousin, which specifically indicates that her father and the family wish to
repair their damaged relationship, the Panel finds that the claimant has
failed to establish that she suffers a reasonable possibility of persecution or
harm should she return to Zimbabwe.
[Emphasis added.]
The Board’s second
reference to the appropriate standard to be applied is the aforementioned
passage at page 5, where it states:
The principal claimant, based on a
balance of probabilities, has failed to establish that she would be persecuted
should she return to Zimbabwe.
[16]
As
Mr. Justice Mandamin recognized in Mugadza, above, at paragraph 21, the
Board’s reasons must be taken as a whole and considered in light of the two
“slightly different tests” that are applied under a section 96 analysis:
¶ 21 The
Board’s reasons are to be taken as a whole. In I.F. v. Canada
(Minister of Citizenship and Immigration), [2005]
F.C.J. No. 1856, 2005 FC 1472 at paras. 24, Justice Lemieux in deciding whether
the board erred in its application of the section 96 test by setting out two
slightly different tests held:
In
this case, looking at the impugned decisions as a whole, I find the tribunal
expressed itself sufficiently and did not impose an inappropriate burden on the
applicants. The tribunal conveyed the essence of the appropriate standard of
proof, that is, a combination of the civil standard to measure the evidence
supporting the factual contentions and a risk of persecution which is gauged by
not proving persecution is probable but by proof there is a reasonable chance
or more than a mere possibility a claimant would face persecution.
[17]
In
the case at bar, the two references cited above are the Board’s only two references
to the proper standard of proof to be met under section 96 of the IRPA.
Accordingly, in considering the Board’s reasons as a whole in conjunction with
the proper standard that must be met under section 96 of the IRPA – namely the
existence of a serious possibility of persecution – I am not convinced that the
Board’s reference to the balance of probabilities in the second passage was
made with respect to the weighing of the evidence as suggested by the
respondent. It is clear in reading the passage that the Board was applying the
balance of probabilities to the degree of risk the applicant would face if
returned to Zimbabwe relates to
her membership in he MDC party.
[18]
Given
this, I find that the Board failed to clearly articulate and apply the proper legal
test to the applicants’ claim under section 96 of the IRPA. Accordingly, I must
set the decision aside and return the matter to the Board for redetermination
by a differently constituted panel.
Issue No. 2: Did the
Board err by ignoring the objective evidence that the principal applicant was a
person in need of protection by virtue of her membership in the MDC?
[19]
While
I have already concluded that the Board’s decision must be set aside on the
basis that it failed to apply the correct test under section 96 of the IRPA, I
also find that the principal applicant raises sufficient grounds for setting
aside the Board’s decision on the basis of its treatment of her membership in
the MDC.
[20]
In
their submissions, the applicants argue that the Board erred by failing to
consider the objective documentary evidence that MDC members in Zimbabwe
continue to face a serious risk of persecution by sole virtue of their
membership in the MDC. In support, the applicants point to my recent decisions
in Chavi v. Canada (Minister of
Citizenship and Immigration), 2008 FC 53, [2008] F.C.J. No. 63 (QL) and
Maimba v. Canada (Minister of Citizenship and Immigration), 2008 FC
226, [2008] F.C.J. No. 296 (QL).
[21]
In
both cases, I concluded that even where the Board rejects the applicant’s
credibility and/or the subjective basis of the applicant’s claim, there may be
instances where, having accepted the applicant’s identity, the objective
documentary evidence is such that the applicant’s particular circumstances make
him or her a person in need of protection: see also Kandiah v. Canada
(Minister of Citizenship and Immigration), 2005 FC 181, [2005] F.C.J. No.
275 (QL).
[22]
In
the case at bar, the Board provides the following comments at page 5 regarding
the principal applicant’s membership in the MDC:
The claimant joined the MDC party in 2000
or 2001. Her participation in the party was “very minimal.” Nor has she been
active in the party since her arrival in Canada because of her recognizable family name.
…
[23]
While
the Board concluded that the principal applicant was only minimally involved in
the MDC while in the United States and not active at all since arriving in Canada, it did
accept that she was a member of the party, having joined “in 2000 or 2001.”
Given the Board’s acceptance of this evidence, it was required to assess
whether the principal applicant’s membership in the MDC placed her at an
objective risk of harm if she was returned to Zimbabwe. However, no
such consideration is provided.
[24]
This
is particularly troubling given the fact that the U.S. Department of State
Report for Zimbabwe clearly
states that membership in the MDC is sufficient to place a person at risk of
persecution if returned to Zimbabwe. I recognized this fact
in Chavi, above, at paragraph 14:
¶ 14 The U.S. Department of State
Report [for Zimbabwe] is objective evidence that
membership in the MDC is sufficient to place a person at risk of harm. …
I made a similar finding in Maimba,
above, at paragraph 24.
[25]
Given
the Board’s finding that the applicant was a member of the MDC, the Board was
required to consider what effect that membership had on whether the applicant
would be at risk of harm if returned to Zimbabwe. As Mr.
Justice Evans (as he then was) held in Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration) (1998), 157 F.T.R. 35, the Board has a
burden of explaining why it did not consider objective documentary evidence
that appears to squarely contradict its finding of fact. In the case at bar,
the Board failed to satisfy that burden and, accordingly, committed an
unreasonable error that is subject to the intervention of this Court.
[26]
On
this basis, the Board’s decision must be set aside and remitted to a
differently constituted panel for redetermination.
[27]
Neither
party proposed a question for certification. The Court agrees that this case
does not raise a question which should be certified for appeal.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1.
This
application for judicial review is allowed; and
2.
The
refugee claim is remitted to the Board for redetermination by a differently
constituted panel of the Board.
“Michael
A. Kelen”
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