Date: 20080206
Docket: IMM-1585-07
Citation: 2008 FC 156
Ottawa, Ontario,
February 06, 2008
PRESENT: The Honourable Orville Frenette
BETWEEN:
GERTRUDE
NGWENYA
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of the Refugee
Protection Division (RPD) dated March 28, 2007 in which the Panel Member
(Member) denied refugee status to the Applicant, Gertrude Ngwenya.
[2] The
Applicant is a citizen of Zimbabwe where the ruling political party is the Zimbabwe
African National Union – Patriotic Front (“Zanu-PF”). In June 2000, the
Applicant left Zimbabwe and traveled to the United States of America (USA),
via South Africa. It was in her testimony at the hearing, before the Member,
that she felt no fear of persecution at that point in time, but left Zimbabwe in an
attempt to support her children as a single mother.
[3] For
a period of approximately 11 months, the Applicant remained in the USA, with
the exception of traveling briefly to England in December 2000. At some point in this period of
time, she learned that her daughter had fled Zimbabwe and was thought to be in Canada. On June
21, 2001, the Applicant entered Canada in search of her daughter. Finding herself
unsuccessful in this search, and unable to return to the USA due to lack of
immigration status, she was permitted by Canadian Immigration authorities to
voluntarily depart to Zimbabwe in early July 2001.
[4] The
Applicant testified at her RPD hearing that, upon her arrival at the Zimbabwe
airport, she was questioned by officials regarding her activities abroad and
was accused of being a “spy for the West”. She remained in Zimbabwe for a
period of approximately three weeks, but left again after receiving harassing
visits from members of the Zanu-PF at her home. The Applicant went to South Africa
for several months and then, in October 2001, went to England, where
she applied for a student visa, but did not seek asylum. At or about this same
time, her oldest daughter was granted refugee status in Canada.
[5] With
the help of an agency, the Applicant left England and re-entered the USA in October
2002. She made an application to study in the USA which was denied, but again,
she did not seek legal advice, or refugee status. In December 2002, the
Applicant’s second daughter made a claim for asylum in Ireland. On November 16, 2005,
the Applicant entered Canada and applied for status as a convention refugee based
on her fear of persecution due to her political opinion and that of her
immediate family members.
I. Decision
[6] Due to adverse findings made
against the Applicant’s credibility because of inconsistencies in her evidence,
and a finding that the Applicant failed to prove both the subjective and
objective elements of her claim, the Member determined that the Applicant was
not a Convention refugee based on her actual or perceived political opinion, or
that of her family members. The Member also found that the Applicant was not “a
person in need of protection” in accordance with section 97(1)(a) and (b) of
the IRPA.
II. Issues
[7] a. Were the Member’s
adverse findings on credibility patently unreasonable?
b.
Was the Member’s
finding that the Applicant lacked the element of subjective fear patently
unreasonable?
c. Was
it reasonable for the Member to conclude there was no objective basis for the Applicant’s
fear of persecution, despite the fact that her daughters have made successful
refugee claims?
III. Standard of review
[8] The expertise of the RPD in
assessing credibility goes to the core of its jurisdiction and such assessments
should not be set aside unless they are found to be patently unreasonable, Xu
v. Canada (Minister of Citizenship and Immigration), 2005 FC 1701; Griffiths
v. Canada (Solicitor General), 2006 FC 127 at para 16; Harusha v. Canada
(Minister of Citizenship and Immigration), 2007 FC 2004.
IV. Credibility findings
[9] Credibility
and assessment of evidence by the Immigration Board must be respected unless
they are patently unreasonable, i.e. based on an erroneous finding of fact that
is made in a perverse or capricious manner without regard to the material before
it, Akinlolu v. Canada (Minister of Citizenship and Immigration), [1997]
F.C.J. No. 296 (QL) at para 14; Kanyai v. Canada (Minister of Citizenship
and Immigration), 2002 FCT 850 at para 9.
[10] The Board can
find that an applicant is not credible because of implausibilities and
inconsistencies in the evidence, Aguebor v. (Canada) Minister of Employment and Immigration), 160
N.R. 315, [1993] F.C.J. No. 732 (QL) [Aguebor]. The Board can make
findings based on implausibilities, common sense and rationality, Shahamati
v. Canada (Minister of Employment
and Immigration), [1994] F.C.J. No. 415 (F.C.A.) at para
2.
[11] This standard applies equally to
the findings of the Member with respect to the Applicant’s lack of subjective
fear, Abawaji v. Canada (Minister of Citizenship and Immigration), 2006
FC 1065 at para 10. The determination of whether the harassment or sanctions a
claimant fears are sufficiently serious to constitute persecution is a question
of mixed fact and law and therefore subject to a standard of reasonableness
simpliciter, Sagharichi v. Canada (Minister of Employment and Immigration) (1993),
182 N.R. 398.
V. Analysis
A. Adverse
findings regarding the Applicant’s credibility
[12] Due
to several inconsistencies between the Applicant’s viva voce evidence
and the written documentation, the Member made adverse findings regarding the Applicant’s
credibility. Counsel for the Applicant submits that the Member engaged in an
overly microscopic review of the evidence and wrongly concluded that the Applicant
contradicted her oral testimony. It is true that the Federal Court of Appeal in
Attakora v. Canada (Minister of Employment and Immigration), [1989] 99
N.R. 168 [Attakora], cautioned the Refugee Board against being
“over-vigilant in its microscopic examination of the evidence”, but after a
careful consideration of the tribunal record and the Member’s decision, I fail
to see how such an examination occurred in this instance.
[13] As
is required, see Hilo v. Canada (Minister of Employment and Immigration) (1991),
130 N.R. 236, the Member cited clear examples of what she perceived as
inconsistencies, and explained how they impacted her findings on credibility. Specifically,
the Member pointed to the fact that the Applicant’s Personal Information Form
(PIF) sets out that “my family member and I have been the target of the ruling
party since the year 2000”, when in fact, it was in the Applicant’s oral
testimony that her confrontations with the Zanu-PF did not begin until 2001.
She admitted during the hearing that only her daughter had been a target in
2000. Further, the Applicant’s PIF stated she was “assaulted by Zanu-PF members
at home,” asked where her daughter was, and pressured to attend meetings. In
oral testimony, the Applicant said she was visited repeatedly – sometimes late
at night – by members of the Zanu-PF, asked where her daughter was and pressured
to attend meetings. However, she made no mention in her testimony of being
assaulted, despite being asked numerous times about these incidents and prompted
for further details. The Member wrote on page 3 of her reasons:
…When questioned about this issue
a second time, the claimant stated that the Zanu-PFmembers came to her family
home in an attempt to persuade them to attend meetings and join the party. She
indicated that they would knock on the door and on one occasion kicked the
door, but when asked if they did anything else, she responded “no”,…
The
Member found the Applicant had purposefully provided evidence in her PIF that
was not correct in an attempt to embellish her alleged risk and/or fear of
return to Zimbabwe.
[14] The
Member also pointed to inconsistencies with respect to the Applicant’s alleged membership
in the Movement for Democratic Change (MDC) Party. The Applicant
responded in the negative when asked during her interview with the Immigration
Officer whether she had an association with any groups, societies or organizations,
yet indicated she was a “believer” of the “ZAPU-PF/MDC” from 1963-2005 on her
Background Information Form (Schedule I to her PIF). From this contradiction, the Member concluded that the Applicant was not a
long-standing member of the MDC Party. It
is the position of the Applicant that the Member rejected the evidence of MDC
membership “without any reasonable basis”, but I disagree. The Applicant did
not indicate her membership on any of her forms, and could only provide a
receipt for a recent payment of dues dated September 2006 for a MDC Party card.
Thus, there was insufficient evidence of a “long-standing” membership. The Member
also based her findings, in part, on the fact that the Applicant did not
attempt to participate with the MDC Party during her relatively lengthy time
spent in the United Kingdom or in the USA, which both have active chapters of this MDC Party.
[15] Another
inconsistency noted by the Member was the conflicting reasons the Applicant
gave for her return to Zimbabwe in 2001. The Applicant initially said she went back
to look for her daughter and to “check out the situation and gain information”.
Later, the Applicant testified that she was going to stay in Zimbabwe. When
asked which reason was the correct one, the Applicant answered that her return
was for both reasons. What I find most troubling, is not necessarily the
inconsistencies in the Applicant’s reasons for returning to Zimbabwe, but
the fact that she returned at all. The Applicant testified that she was, at
that time, afraid to return to Zimbabwe because she had heard that the Zanu-PF was pressuring
people to join the Zanu-PF Party, yet she did not make a claim for refugee
status while in Canada. The Applicant’s submissions on this application
state that she did not make a claim for status at that time because that “was
not her intentions for going to Canada other than to locate her daughter”. However, if she
genuinely wanted to locate her daughter, why did she first attempt to re-enter the
USA?
(para 3 supra).
[16] These
examples of inconsistencies led the Member to draw adverse findings of
credibility against the Applicant’s testimony and to find that she had
embellished her claim in her PIF. The analysis undertaken by the Member is distinguishable
from Attakora and M.M. v. Canada (Minister of
Employment and Immigration) (1991),
15 Imm.L.R. (2d) 29 (F.C.A.) [M.M.], where the Court took issue with the
Boards’ microscopic approach to evidentiary inconsistencies. In Attakora, the
claimant (while testifying through an interpreter) said he escaped through a
hole the approximate size of a soccer ball. The Board in that case engaged in
an analysis of whether the claimant’s body frame could fit through such a hole.
On review, the Court stated, “the comparison [of the hole to the soccer ball]
is a homely one and hardly lends itself to microscopic analysis.” The
inconsistencies noted by the Board in M.M. dealt with the frequency of
times the claimant was required to report to the IPKF camp, her precise date of
arrest and the precise distance from the camp to her home. The Court determined
these inconsistencies, “while not-insignificant, were not central to the
appellant’s claim.” Conversely, the inconsistencies pointed to by the Member in
the Applicant’s case go to the very core of the claim: the existence of
political membership and the degree and validity of harassment/persecution. In
addition, the Boards in both Attakora and M.M. found the
claimants had subjective fear, which further separates these decisions from the
present case.
B. Failure to prove subjective fear
[17] As
previously stated, the Member found that the Applicant had not established that
she held a subjective fear of persecution upon her return to Zimbabwe. This
finding is based in part on the adverse findings against the Applicant’s
credibility discussed above, but also on the conduct of the Applicant since
leaving Zimbabwe.
[18] It
took the Applicant over four years, after leaving Zimbabwe for the second time
in late July 2001, to make her refugee claim in Canada in November 2005. During
this period of time, the Applicant spent significant time in both the United Kingdom
and in the USA and did not make a refugee claim in either country. This
evidence shows there was both a serious delay in the Applicant’s application
for Canadian refugee status; and (connectedly) a failure to claim in other
countries before arriving in Canada.
[19] Refugees
are not obliged to seek asylum in the first country they reach, however a
failure to make a claim at the first safe opportunity to do so can impugn the Applicant’s
credibility and contribute to a finding of a lack of subjective fear, Gavryushenko
v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1209
(Q.L.); Bobic v. Canada (Minister of Employment and Immigration), 2004
FC 1488 [Bobic]. This is particularly true if the claimant was in
countries which would have offered protection if the claim was well founded,
and if the claimant can offer no reasonable explanation for failing to claim
refugee status.
[20] When
questioned why she did not seek legal help or asylum in the U.K., the Applicant
testified that she applied for status as a student. The Applicant further noted
that she had heard that England was sending people back to Africa, and was
afraid to make a claim for asylum, for fear of deportation. When her
application to study was denied in the U.K., the Applicant sought the help of
an agency to travel to the USA. When asked by the Member why she did not seek legal
advice in America, the Applicant initially answered that she did not have
adequate funds, and then later said it was because she had no legal status. When
asked what her “plan” was going to be upon arriving in the USA she stated
at page 19 of the Record of Hearing:
…-- I was in the United States
before, and seeing the life in the United States that there’s not even police
that may be will be following you unless maybe you’ve committed a crime, or
done something bad in the country. That’s how they maybe came decide to send
you back.
So I decide -- I just thought in
the United States, I’ll be able to be sneaking around, working and surviving.
[21] In the present case, the
Member offered the Applicant opportunities to explain her decisions to not seek
protection in the USA and the U.K.,
however, the Member did not find the Applicant’s explanations with respect to
her concern surrounding the immigration systems in the other countries valid. In
rejecting the explanations, the Member noted that the Applicant’s 10 month stay
in London was related to the fact she was awaiting an answer on her application
for study status. Such an application would have allowed authorities to know
her whereabouts, which is not consistent behavior for someone who fears
deportation. The Applicant’s fear of seeking advice in the absence of “status” appears
to be based on her reasoning that she could not approach immigration or legal
authorities without some kind of status to “fall back on” in the event her
application was denied. However, the Member noted that the Applicant made a
refugee claim in Canada, without having any kind of status to fall back on.
[22] In view of these reasons,
the Member did not find the Applicant’s
explanations convincing, in particular given the lengthy amount of time the Applicant
spent in the other countries. Indeed, the amount of time the Applicant spent
in other countries is quite long, relatively speaking. For example, in Bobic
at paragraph 6, the Court found it strange that the applicant had passed
through 5 countries on his way to Canada without making a claim in any of them,
“…despite being in England for one month and France for three days.” The Court
continued to state that if the applicant had truly feared for his life, he
would have applied at the first available opportunity and that his actions were
inconsistent with a subjective fear of persecution.
[23] The
lengthy amount of time that the Applicant spent in other countries resulted in
a substantial delay before her claim was made to Canadian authorities. Similar
to a failure to seek protection in other countries, the issue of delay can go
to the existence of a subjective fear of persecution, Huerta v. Canada
(Minister of Employment and Immigration) (1993), 157 N.R. 225 [Huerta].
In certain exceptional situations, a claimant’s
delay may be so extreme that it is nearly determinative of the claim, see Cruz
v. Canada (Minister of Employment and Immigration), (1994) F.C.J. No. 1247 (QL). In most cases,
however, delay is a relevant element which the tribunal may take into
account in assessing both the statements and the actions and deeds of a
claimant. In Huerta the claimant arrived in Canada as a tourist on
December 25, 1988 and did not claim refugee status until April 26, 1989. The
Board in Huerta found it hard to see the claimant’s conduct as the
conduct of a person who says she fears for her life. In the present case, the Member
drew the same conclusion, see also Ilie v. Canada (Minister of
Citizenship and Immigration), [1994] F.C.J. No. 1758 (QL); Lopez v.
Canada (Minister of Citizenship and Immigration), 2004 FC 1318; Riadinskaia
v. Canada (Minister of Citizenship and Immigration), [2001]
F.C.J. No. 30 (QL). Taking all the evidence as a whole, it cannot be said that
the Member’s conclusion on the Applicant’s lack of subjective fear was patently
unreasonable.
C. The Applicant’s fear of persecution lacked
an objective basis.
[24] The
Member’s reasons also addressed the absence of an objective, well-founded fear
of persecution with respect to the Applicant’s claim for refugee status. There
are several components to the Applicant’s evidence which are relevant to such a
determination. The first is any evidence of past persecution, which would
include the questions and accusations that the Applicant testified she faced at
the airport by officials, and the visits that members of the Zanu-PF paid to
her home. The dividing line when acts of harassment will be defined as
persecution (as contemplated by the IRPA), can be difficult to draw. This is a
determination of mixed fact and law, reviewable on a standard of reasonableness
simpliciter. In other words, the test is not whether the Court would come to
the same conclusion, but whether it was reasonable for the RPD to find as it
did. Here, I find that it was.
[25] With
respect to the airport incident, the Member accepted that the Applicant “may
have been harassed at the airport” but was not satisfied that the questioning
she faced was persecutory in nature, and adds that there was no evidence to
suggest the Applicant was threatened or faced any risk of physical harm. Evidence
of physical harm is certainly not necessary to prove persecution, Amayo v. Canada
(Minister of Employment and Immigration), [1982] 1 F.C. 520 however the potential harm must be sufficiently
serious to warrant international protection. The Member did not accept, as
credible, the evidence regarding the visits to the Applicant’s home, and/or
felt that part of the Applicant’s story was embellished. Given the nature of
the incidents described in the evidence, in combination with the Member’s
adverse findings of credibility, the Member’s decision cannot be said to have
been unreasonable.
[26]
The Applicant’s alleged membership in the MDC Party is the second issue relevant
to determining whether she has an objectively reasonable fear of persecution. When
analyzing the nexus between a well-founded fear of persecution based on
political opinion, the Board must consider all of the evidence about the claimant’s
activities and must consider how these activities will be perceived by
authorities in the claimant’s country. I am satisfied that the Member here did
consider the recently dated MDC membership card and the recent payment of MDC
dues in Toronto, and did not ignore this evidence as is submitted by
the Applicant. The Applicant testified that she has been a member of the MDC
since 1999. Not only could the Applicant not offer any documentary evidence to corroborate
this testimony, she had no other information about her participation with the
MDC besides “attending meetings in Zimbabwe” from which, she testified that she suffered no
repercussions. Based on this evidence, the Member found the Applicant was not a
member of the MDC Party, and further found that she was not being targeted by
the Zanu-PF as a result of any political views, actual or imputed.
[27]
Finally, the fact that the Applicant’s two daughters have been successful
in their respective refugee claims in Canada and Ireland, is relevant to the
determination of whether an objective basis exists for the Applicant’s fear of
persecution, but by no means determines the well-foundedness of the Applicant’s
fear in this case. Each case must be determined on its own merits and the
circumstances of the claimant’s family members cannot be considered indirect
persecution of the claimant, see Pour-Shariati v. Canada
(Minister of Employment and Immigration) (1997), 215 N.R. 174 (C.A.) [Pour-Shariati]. The Applicant’s submission
that the Member failed to consider the fact that her daughters have been
granted protection is not persuasive. The Member clearly acknowledges these
facts at the beginning of her decision.
[28]
When determining whether there exists an objective basis for a claimant’s
alleged fear, the test is whether there is a reasonable chance that persecution
would take place were the applicant returned to his country of origin, Adjei
v. Canada (Minister of Employment and Immigration) [1989] 2 F.C. 680 (C.A.). Previous
Board decisions have been over-turned because the Court found that the Board
sought to be convinced of persecution, rather than looking for a
reasonable chance. In the present case, the Member uses language such as “the
panel is unable to conclude that the claimant had a reasonable fear for
her life”. In my view, this demonstrates the correct test was applied. The
Member made this determination due to the insufficient and conflicting evidence
on pivotal issues such as the visits by members of the Zanu-PF to the Applicant’s
home, and her affiliation with the MDC. The Member does not reference any data
regarding the current situation in Zimbabwe, however such references are not necessary here given
her findings on the absence of any basis for the Applicant’s claim. I find that
it was not unreasonable for the Member, after hearing the evidence first-hand and
drawing the negative inferences that she did with respect to credibility, to
determine that the Applicant’s alleged fear of persecution was not reasonable
held.
[29] Indirect
persecution is not a basis for claiming refugee status, Pour-Shariati; Rafizade
v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 359 (QL). In this case, if the
Applicant’s daughters were or could have been subject to direct persecution in Zimbabwe, she
was not subject to it.
VI.
Person in need of protection
[30] Neither
the decision of the Member, nor the submissions of the parties on this
application gave the issue of whether the Applicant is a “person in need of
protection” much attention. Based on the findings of the Member, affirmed on
this decision, with respect to lack of objective fear of persecution, it cannot
be said that the Applicant would be at risk of torture or risk for her life or
face a risk of cruel and unusual treatment or punishment should she return to
her native country. I am not persuaded that the elements of section 97(1)(a)
and (b) of the IRPA are satisfied.
VII.
Zimbabwe
[31] The
negative image of the state of Zimbabwe presented by the media and the press,
about its political regime and abuse of human rights must not induce a court in
refugee claims to pre-judge a claim before hearing the particular facts of each
case.
[32] The
Applicant relies heavily upon two recent decisions of our court concerning
Zimbabwe, allowing judicial review against negative decision of the Immigration
Board, Musiyiwa v. Canada (Minister of Citizenship and Immigration),
2007 FC 181; Malunga v. Canada (Minister of Citizenship and Immigration),
2007 FC 1259.
[33] In
the two above cases, it was established that the claimants were either members
of MDC or had participated in anti-government demonstrations and were
identified as MDC supporters by a local Zanu-PF organizer.
[34] In
the present case, such evidence was not made in front of the Board.
[35] For
the reasons above, I find that the Member did not err in her decision and I
would dismiss the application. The parties are given seven days to present
questions for certification.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that the application be dismissed. The parties have seven days
from the date of this order to present questions for certification.
"Orville
Frenette"
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