Madziba v. Canada (Minister of Citizenship and Immigration), 2003 FC 950

Date: 20030805

Docket: IMM-4762-02

Citation: 2003 FC 950

Ottawa, Ontario, this 5^th day of August, 2003

Present:           THE HONOURABLE MR. JUSTICE O'REILLY                          

BETWEEN:

                                                                 JOSEPH MADZIBA

                                                   TANDIWE BENHILDA MADZIBA

                                              TAKWANA ESLOM MADZIBA, a minor

                                 CLEOPATRA CHIDOCHEMOYO MADZIBA, a minor

                                             CAESAR TAWANDA MADZIBA, a minor

                                              MACBETH TAPIWA MADZIBA, a minor

                                                                                                                                                      Applicants

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                      REASONS FOR JUDGMENT AND JUDGMENT

[1]                 Joseph Madziba came to Canada from Zimbabwe in June 2001. His family, consisting of his wife, Benhilda, and their four children, arrived two months later. On behalf of the entire family, Mr. Madziba made a refugee claim , which a panel of the Immigration and Refugee Board dismissed. Mr. Madziba argues that the Board made a number of serious errors and asks for a new hearing before a different panel. One of the alleged errors involves evidence that the Board should have considered, but did not. On that ground alone, this application for judicial review must be allowed.

[2]                 Mr. Madziba said that he had been mistreated in Zimbabwe because of his status and activities as a journalist. While he admitted that he was not involved in political reporting, he said that some people in Zimbabwe loathe all journalists, blaming them for the government's poor international reputation.

[3]                 But the Board did not believe that Mr. Madziba was a journalist at all, at least not in the usual sense of the term. It based its conclusion in part on Mr. Madziba's failure to provide written proof of his credentials. It said: "he was undocumented with respect to his employment as a journalist"; "the claimant has not provided a reasonable explanation for the lack of press identity documents"; "the claimant did not provide any documents to substantiate that he was employed by the government [that is, the Zimbabwe Broadcasting Corporation, "the ZBC"] from 1981-1996"; and, finally, "the claimants made up a story based on a journalist who wrote anti-government stories in order to support a fabricated refugee claim." Obviously, the Board was troubled that there was no written evidence of Mr. Madziba's status as a journalist or his employment history with the ZBC.

[4]                 At the end of the hearing, the presiding member of the Board invited Mr. Madziba to send in additional materials and promised to look at them. Indeed, later that same day, counsel for Mr. Madziba faxed a number of documents to the Board with a covering note asking it to "please kindly see identity documents for Mr. Madziba from Zimbabwe Broadcasting Corporation and Anglo-American Corporation of Zimbabwe Journalistic Awards".

[5]                 According to its records, the Board received the documents but, for some reason, it did not have hard copies of them. The official record of the proceedings does not include them. Accordingly, the panel could not have considered them when it ruled against the Madziba family's claim.

[6]                 In my view, this situation demands that the Madziba family receive a new hearing before a different panel of the Board. To be clear, there was certainly no malice on the Board's part. It has apologized for the error. Still, nothing can change the fact that the panel disposed of the claim without considering certain relevant evidence. Justice requires a new hearing.

[7]                 This application for judicial review is therefore granted. No question of general importance was proposed for certification, and none is stated.

                                                                        JUDGMENT

IT IS HEREBY ADJUDGED that:

1.          This application for judicial review is allowed.

2.          The applicants are entitled to a new hearing before a different panel of the Board; and

3.          No question of general importance is stated.

                                                                                                                                      "James W. O'Reilly"          

                                                                                                                                                               Judge             

                                                                     FEDERAL COURT

             Names of Counsel and Solicitors of Record

DOCKET:                                             IMM-4762-02

STYLE OF CAUSE:                           JOSEPH MADZIBA

                                                   TANDIWE BENHILDA MADZIBA

                                              TAKWANA ESLOM MADZIBA, a minor

                                 CLEOPATRA CHIDOCHEMOYO MADZIBA, a minor

                                             CAESAR TAWANDA MADZIBA, a minor

                                              MACBETH TAPIWA MADZIBA, a minor

                                                                                                                                                      Applicants

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

PLACE OF HEARING:                     TORONTO, ONTARIO

DATE OF HEARING:                       WEDNESDAY, JULY 9, 2003

REASONS FOR JUDGMENT

AND JUDGMENT BY:                     THE HON. MR. JUSTICE O'REILLY

DATED:                                                AUGUST 5, 2003         

APPEARANCES BY:                        Mr. Kingsley Jesuorobo

                                                                                                       For the Applicants

Ms. Sally Thomas

For the Respondent

SOLICITORS OF RECORD:          Mr. Kingsley Jesuorobo

                                                               Barrister and Solicitor

968 Wilson Ave., 3^rd Floor

Toronto, Ontario M3K 1E7

For the Applicant

Morris Rosenberg

Deputy Attorney General of Canada

For the Respondent