Date: 20061012
Docket: IMM-7330-05
Citation: 2006
FC 1212
Toronto, Ontario, October 12, 2006
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
LLOYD
MHAKA
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review of the decision made by Jiti Singh Grewal,
member of the Refugee Protection Division of the Immigration and Refugee Board
(the Board), dated November 15, 2005, wherein the Applicant was found not to be
a Convention refugee or a person in need of protection under sections 96 and 97
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2]
The Applicant
is a citizen of Zimbabwe. He alleges a well-founded
fear of persecution by the ruling ZANU-PF government by reason of his imputed political
opinion as a member of the opposition party, the Movement for Democratic Change
(MDC), as well as his membership in a particular social group, namely, as a
person with family members who are active in the MDC.
[3]
In
particular, the Applicant testified before the Board that he is an active
member of the MDC and fears being targeted by the Zanu-PF if returned to Zimbabwe. He presented an e-mail
dated September 16, 2005 from Mr. Andrew M. Manyevere, who holds a position as
Secretary General of the MDC Dallas branch, to support his contention that he
became a member of the MDC Dallas branch. The Applicant also presented a
letter dated November 25, 2003 from the “Office of the Shadow Minister of Local
Government” signed by Mr. Gabriel Chaibva, MP. These letters of support
endorse the Applicant’s contention that he is a member of the MDC and both
authors recommend that he should not return to Zimbabwe
until the political environment becomes more democratic and conducive to free
expression. The Applicant also submitted two membership cards from the MDC.
[4]
The Board
did not give any weight to the e-mail and letter signed by MDC officials and
found that they were obtained by “fraudulent means”. The main reason
for coming to this latter conclusion is that according to the documentary evidence
cited by the Board, the MDC had no policy to assist asylum seekers, either
officially or unofficially (Exhibit R-5, ZZZ38535.E, dated February 28, 2002). The
finding that the Applicant obtained the two documents in question “by
fraudulent means”, in the Board’s words, “impacts the overall credibility of
the [Applicant]” and “in light of the credibility concerns”, the Board also
“does not give any weight” to the two MDC cards submitted by the Applicant as
direct evidence of his membership in the MDC.
[5]
There is
no evidence that the Applicant meant to deceive the Board and the Board’s
finding that the two letters of support mentioned above were obtained by “fraudulent
means” is patently unreasonable. In making this finding, the Board overlooked
relevant conflicting evidence or otherwise made a selective reading of the
documentary evidence, which also mentions that “members of the party’s
executive committee occasionally write letters of introduction for party
members” (Exhibit R-1, RPD Information Package November 2004, ZWE38381.E, dated
April 19, 2002 certified tribunal record, at page 73). Moreover, in the case
at bar, it is apparent that the two letters of support mentioned above do not purport
to speak in the name of the MDC as a party but are tendered by the writers in
their personal capacities as persons knowledgeable about the Applicant’s personal
involvement with the MDC.
[6]
In
addition, the Board imposed an excessive burden on the Applicant by expecting
him to explain entries made by MDC officials, especially with regard to the
location of the signatures appearing on the subscription schedule appearing on
the MDC card issued in Dallas. Given the fact that the Board
had no evidence before it as to the nature and the format of MDC membership
cards, it also wrongly impugned the MDC card issued in Harare, on the basis
that the card in question made no mention of when it was issued or when the
Applicant obtained it (Adamarasha v. Canada (Minister of Citizenship and
Immigration),
2005 FC 1529).
[7]
The above
errors are material and affect the determination made by the Board that the
Applicant is not a Convention refugee or a person in need of protection.
Therefore, it will not be necessary to examine the legality of the other
findings made by the Board pertaining to the lack of subjective fear and the
lack of credible evidence that the Applicant’s family members, especially his
brother, are members of the MDC.
[8]
Therefore
this judicial review application will be allowed. I agree with counsel for the
parties that this is not a matter for certification.
ORDER
THIS COURT ORDERS that
1. The application for judicial review is allowed.
2. The
decision of the Refugee Protection Division, dated November 15, 2005, wherein
the Applicant was found not to be a Convention refugee or a person in need of
protection, is set aside and this matter is sent back to the Refugee Protection
Division for re-determination by a differently constituted panel.
3. There is no question for certification.
“Luc Martineau”
FEDERAL COURT
Names of
Counsel and Solicitors of Record
DOCKET: IMM-7330-05
STYLE OF CAUSE: LLOYD MHAKA v.
THE
MINSITER OF CITIZENSHIP &
IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: October
10, 2006
REASONS FOR ORDER
AND ORDER BY: Martineau,
J.
DATED: October
12, 2006
APPEARANCES BY:
Mr. Kingsley Jesuorobo Applicant
Mr. David Joseph Respondent
SOLICITORS OF RECORD:
Kingsley Jesuorobo
Toronto, Ontario Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada Respondent
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