Date: 20080116
Docket: IMM-860-07
Citation: 2008 FC 53
Ottawa, Ontario, January 16, 2008
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
CHARLES
BRIGHTON CHAVI
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 the Refugee Protection
Division of the Immigration and Refugee Board (the Board) dated February 7,
2007 concluding that the applicant, a citizen of Zimbabwe, is not a
Convention refugee or a person in need of protection.
FACTS
[2]
The
applicant, a 51-year-old citizen of Zimbabwe, seeks refugee
protection on the basis of persecution for opposing the Government of Robert
Mugabe.
[3]
The
applicant, a member of the opposition party called Movement for Democratic
Change (MDC), claims to have been harassed by the Zimbabwe African National
Union – Patriotic Front (ZANU-PF) militia. Examples include:
1.
on
November 29, 2004 the ZANU-PF militia accused the applicant of being a MDC
member and began pushing him around and punching him;
2.
on
March 5, 2005 a ZANU-PF youth member wrote graffiti on the outside wall of the
applicant’s house, which subsequently led to frequent telephone calls demanding
that the applicant “quit the MDC”; and
3.
on
February 9, 2006 the applicant was arrested by the Central Intelligence
Organization (CIO) of the Government, and held for five weeks at the Manyame
Airforce Base until March 16, 2006, during which time he was interrogated and
tortured about his knowledge regarding illegal arms sales. In his Personal
Information Form (PIF), the applicant states that the torture methods included:
… being put in a coffin;
having a sack placed on my head and my head dunked in water; having the soles
of my feet beaten with a rubber truncheon; and having a small gun put to my
head and trigger pulled (Russian roulette).
[4]
The
applicant states he was only released from CIO custody upon the intervention of
a childhood friend who was a military operative. Upon release on March 16, 2006
(after five weeks), the applicant learned that the CIO’s suspicion of him arose
because of frequent meetings he had with the MDC Area Chairman, Mr. Roland
Nindi. Mr. Nindi, in turn, was involved with a Mr. Peter Hitschmann, an
individual accused of possessing illegal arms and who was later arrested on illegal
arms charges in March 2006. The applicant states that after his release, the
CIO followed him and monitored his activities.
[5]
After
being released from detention and learning about why he was detained, and after
being followed and monitored by two or three people whenever he left his home,
the applicant decided to leave Zimbabwe on April 5, 2006. He flew to the United
States
(he had a visa that he had obtained sometime before and he had a contact in the
Unites States). An organization helped him come to Canada to claim
refugee status.
[6]
When
questioned about how he was able to leave Zimbabwe if he was of
interest to the CIO, the applicant answered that his brother made arrangements
for him to leave the country by bribing the appropriate people. The bribe was
15 million Zimbabwe dollars, which is $30 Canadian, and is a significant amount
of money in Zimbabwe.
[7]
On
May 22, 2006, the applicant arrived in Canada and advanced
his claim for refugee protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27.
ISSUES
[8]
At
the hearing the applicant raised the following issues:
1.
the
material finding of fact by the Board that the applicant would not have been
able to bribe someone to leave Zimbabwe was not supported by any reasons and is
a breach of natural justice; and
2.
the
material finding of fact by the Board that the applicant’s alleged MDC
membership by itself was not sufficient to place him at risk of serious harm is
contrary to the objective documentary evidence from the U.S. Department of
State. Accordingly, the Board erred in law by not explaining why this
important, relevant, and contradictory evidence was rejected.
STANDARD OF REVIEW
[9]
The
failure to provide reasons is a breach of natural justice and is subject to
review on a standard of correctness. The second issue raises the question of
the Board’s failure to explain relevant and important contradictory evidence,
which is an error of law also subject to review on a standard of correctness.
ANALYSIS
Issue No. 1: The
material finding of fact by the Board with respect to whether the applicant was
able to bribe someone to leave Zimbabwe was not supported by any
reasons.
[10]
The
Board held at page 3 of its decision:
... Yet it is the claimant’s evidence
that he was able to bribe someone to leave the country. I do not believe his
evidence but before making a definitive finding in this critical area I assess
further evidence below.
However, the Board does not in fact assess
any further evidence relevant to whether the claimant was able to bribe someone
to leave the country.
[11]
The
applicant submits that the Board is obliged to provide clear, precise, and
intelligible reasons to allow the Minister or the person making the claim to
understand the grounds upon which the decision is based and to allow the
reviewing court to understand the basis for the decision or the material
finding. This is trite law. See Canada (Minister of
Citizenship and Immigration) v. Shwaba, 2007 FC 80, [2007]
F.C.J. No. 119 (QL) per Mr. Justice de Montigny at paragraphs 14-15. In this
case, the Board failed to provide reasons, let alone adequate reasons, for its
conclusion that the applicant would not have been able to bribe someone to
leave Zimbabwe.
[12]
The
respondent submitted that the Board’s decision was reasonable considering that Zimbabwe has exit
controls so that the applicant would not be able to leave if he was a person of
interest to the CIO. However, there is no issue as to exit controls. The
applicant testified that he bribed the officials with 15 million Zimbabwe dollars so
that he could leave, obviously thereby avoiding exit controls. The applicant
was examined by the Board member about the bribe. I am satisfied the applicant
clearly showed that he did pay this bribe and that this bribe was a significant
amount of money in Zimbabwe. Accordingly, the respondent’s position that
the applicant could not have left Zimbabwe because of the exit controls does
not overcome the uncontradicted documentary evidence that corruption amongst
government officials in Zimbabwe is rampant. Accordingly, it is quite plausible
that an official could be bribed to allow the applicant to leave Zimbabwe regardless
of whether there were exit controls. For these reasons, I agree with the applicant’s
submission that the Board failed to provide any reasons with respect to this
material fact, and this is a breach of natural justice and an error of law.
Issue No. 2: The
material finding of fact by the Board that the applicant’s alleged MDC membership
is not sufficient to place him at risk of serious harm is contrary to the
objective documentary evidence from the U.S. Department of State, and the Board
erred in failing to explain why this important, relevant, and contradictory
evidence was rejected.
[13]
The
Board found at page 5 of its decision that the applicant’s “MDC membership by
itself is not sufficient to place him at risk of serious harm.” The objective
documentary evidence from the U.S. Department of State with respect to Zimbabwe in 2004 speaks
about the serious human rights abuses by President Mugabe and his party in
order to maintain political power. At page 131 of the applicant’s record, the U.S.
Department of State Report is quoted and includes:
… a systematic, government-sanctioned campaign
of violence targeting supporters and perceived supporters of the opposition
continued during the year … Security forces, government-sanctioned youth
militias, and ruling party supporters tortured, raped and otherwise abused
persons perceived to be associated with the opposition …
[…]
… all of those killed in political
violence were MDC activists or supporters …
[…]
… security forces were involved in
incidents of political violence … particularly in areas suspected of heavy
support for the opposition.
In the case at bar, the CIO allegedly
suspected the applicant of being involved with a group of MDC members obtaining
illegal arms and planning a coup. While the applicant states that this link is
untrue, he did have connections with MDC members who were suspected of being
involved with illegal arms. This is a plausible reason why he was arrested, and
why he was being followed and monitored after his release from detention.
[14]
The
U.S. Department of State Report is objective evidence that membership in the
MDC is sufficient to place a person at risk of harm. The applicant was a
supporter of the MDC, and was perceived to be a supporter of individual MDC
members engaged in illegal arms. The security forces in Zimbabwe do not first
read a person his rights before abusing a person perceived to be associated
with the opposition. The failure of the Board to consider this important
objective evidence suggests that the Board did not have regard for the evidence
in finding that mere membership in the MDC is insufficient to place the
applicant at serious risk of harm. As Mr. Justice Evans 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 the U.S. Department of
State evidence when it appears squarely to contradict (the Board’s) finding of
fact. The Board was silent on the U.S. Department of State evidence pointing to
the opposite conclusion that membership in the MDC may be perceived by the
security forces to warrant abuse and violence. The U.S. Department of State
reports widespread state-sponsored violence and repression of the political
opposition by Robert Mugabe’s Government. The Court considers that the failure
of the Board to explain this important and relevant objective evidence, which
contradicts the Board’s finding, to be an error of law.
[15]
The
respondent submitted that the Board’s conclusion that the applicant’s alleged
arrest did not occur and that the CIO was not interested in the applicant is supported
by the following reasons in the decision:
1.
his
passport was never confiscated;
2.
the
newspaper articles did not mention the applicant by name and would have if he
was a high-profile member of the MDC connected with the incident for which the
respondent says the applicant was arrested;
3.
the
applicant’s clearance by the Zimbabwe criminal investigation
department was not revoked after his arrest;
4.
it
was unreasonable that the CIO officials who were allegedly following and
monitoring the applicant after his release would not have re-arrested him;
5.
if
the CIO were monitoring the applicant, it is unreasonable that he would have
been able to bribe someone to get out of Zimbabwe; and
6.
the
applicant did not obtain any corroborating evidence from the MDC that the CIO
was interested in him.
[16]
I
have considered the evidence with respect to each of these issues and I have
concluded that none of them have sufficient weight to override the errors
referred to above. The practice of the government to confiscate the passport of
a significant opposition member does not mean that every low level MDC member
who the CIO is monitoring will have his passport confiscated.
[17]
The
newspaper article referred to high-profile MDC members who were arrested for
having illegal arms in their homes and for planning a coup. These arrests took
place after the applicant was detained on February 16, 2006. Accordingly, the
applicant was not directly involved and even if he was, he was not a high-profile
MDC opponent of the government. Accordingly, it makes sense that he would not
be mentioned in the newspaper article.
[18]
The
applicant’s clearance from the Zimbabwe State Police again was not revoked because
the applicant was not a high-profile person. Just because the CIO officials
were following him and monitoring him does not mean that they would re-arrest
him. They would only re-arrest him if they found that he was doing something
that confirmed their suspicion.
[19]
There
was no corroborative evidence from the MDC because anyone writing such a letter
in Zimbabwe for the MDC
would be subject to detention, abuse, and possibly torture or death. The
applicant did provide corroborative evidence in the form of medical evidence
confirming the injuries that he received when tortured were consistent with the
torture he endured while detained for five weeks. The applicant also produced
his MDC membership card, which no one suggested was not authentic. In fact, the
Board member made mention of the medical evidence and the MDC card but
dismissed this corroborative evidence because the applicant was found not
credible on other issues such as the Board’s finding that the applicant would
not have been able to bribe officials to exit Zimbabwe if the CIO was
interested in him.
[20]
For
all of these reasons, the Court will allow this application for judicial
review. Both parties advised the Court that this application does not raise a
serious question of general importance that should be certified for an appeal.
The Court agrees, so no question will be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
This
application for judicial review is allowed, the decision of the Board dated
February 7, 2007 is set aside, and the applicant’s refugee claim and claim for
protection is referred to another panel of the Board for redetermination.
“Michael
A. Kelen”
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