Date: 20040225
Docket: IMM-2850-03
Citation: 2004 FC 279
Toronto, Ontario, February 25th, 2004
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
FRANCIS SEBASTIAN NDOTO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant is a 20-year old man from Tanzania. He claims to face persecution in Tanzania as a result of his membership in the political opposition party, the Civic United Front (CUF). He also claims that he faces persecution from the police as a result of his attempt to commence legal proceedings against them after the death of his father during a demonstration in January 2001.
[2] In reasons dated March 26th, 2003, the Board found the applicant's story to be credible. However, it concluded, based upon recent documentary evidence, that an agreement reached between the leaders of the CUF and the Chama Cha Mapinduzi Party (CCM) had resulted in a cessation of violence in Tanzania. As a result of this change in the country conditions, it concluded that the applicant would not face a risk of torture or other mistreatment if he was returned to that country.
Issues
[3] This application really only raises two issues:
1. Did the Board err in its consideration of the change in country conditions in Tanzania between January 2002 and March 2003?
2. Did the Board fail to consider the threat which the applicant faced from the police?
Standard of Review
[4] It is a finding of fact whether or not country conditions have changed so as to alter the well-foundedness of an applicant's fear of persecution. The standard of review for this type of finding of fact is patent unreasonableness. See Conkova v. Canada (M.C.I.), [2000] F.C.J. No. 300.
Issue 1. Did the Board err in consideration of the change in country conditions in Tanzania between January 2002 and March 2003?
[5] The applicant submits that any change in country conditions must be sufficiently radical and long lasting as to negate what was previously a well-founded fear of persecution pursuant to the judgment in Biakona v. Canada (M.C.I.), [1999] F.C.J. No. 391. He submits that the Board failed to provide clear reasons as to why a change in country conditions of this nature had occurred in Tanzania from the time the applicant left the country in January 2002 until the time of the refugee hearing in March 2003.
[6] Refugee status is determined based upon conditions at the time of the refugee hearing. In this case, the Board found that the applicant might have had a well-founded fear of persecution in January 2002 following his arrest and detention and as a result of the deaths of his father and brother during earlier political demonstrations. However, the Board then thoroughly canvassed changes in the relationship between the CUF and the CCM as a result of the agreement which the two parties reached in January 2002. It noted that most of the criminal charges had been dropped against CUF members for demonstrations during the unrest and that refugees from the violence were safely returning home. Moreover it noted that, unlike in the past, there was an international commitment to ensure that the peace process was durable and long lasting.
[7] The Board's discussion was sufficient and clearly indicated that current country conditions negated the well-foundedness of the applicant's fear from the CCM which had contributed to his decision to flee the country. Moreover, it clearly stated that it had preferred documentary evidence rather than the testimony of the applicant because of the latter's partisan and out-dated nature. As a result, the decision of the Board in this regard cannot be considered patently unreasonable.
Issue 2. Did the Board fail to consider the threat which the applicant faced from the police?
[8] The applicant submits that the Board failed to consider his viva voce testimony and his other submissions regarding the specific threat which he faces from the police as a result of his attempt to commence legal action following his father's death. He submits that this information was highly relevant to his claim such that the Board erred by failing to discuss it. In his support, he cites the case of Singh v. Canada (Secretary of State) (1994), 80 F.T.R. 132.
[9] It is presumed that the Board has fully considered all of the evidence before it, even if such evidence is not specifically discussed in the Reasons (Florea v. Canada (M.E.I.), [1993] F.C.J. No. 598; Hassan v. Canada (M.E.I.), (1992), 147 N.R. 317). There is also a presumption that the Board fully considered all of the evidence before it unless the opposite is shown. Nonetheless, the Board is obliged to specifically discuss evidence which is central to the applicant's claim.
[10] The Tribunal Record contains extensive testimony regarding the relationship between the police and the applicant's family after his father's death. Specifically, between pages 241-248 and pages 255-256 of the Tribunal Record, the applicant testified that the police had "suspected" his family following their inquiry about the father's death and that he believed that his brother was shot as a result of his association with the family.
[11] In its Reasons, the Board specifically recognized that the applicant claimed that the police had harassed him as a result of the family's inquires about commencing legal action against them. However, it then intertwined the issue of membership in the CUF with the issue of fear of police retaliation. At pages 1-2 of its Reasons it therefore stated:
The claimant claims that the police harassed his family because they made inquiries to take legal action. On May 1, 2001 the claimant's brother was shot by the police, he later dies at the hospital. The claimant reported the incident to the police but no action was taken. After his brother's death the claimant and his mother moved to his uncle's house in Kisimajogoo. On October 19, 2001 the claimant's uncle's house was set on fire by CCM members because they supported CUF. On December 9, 2001 the claimant was arrested along with six other CUF members for allegedly setting fire at the CCM office in Mkunazini. The claimant was released on January 1, 2002, after his uncle posted a bond. At this point arrangements were made for the claimant to flee Tanzania.
[12] Similarly in the Conclusions portion of its Reasons, the Board dealt with both issues at once. It stated at page 8 of its Reasons:
The panel finds that there is not a serious possibility of persecution if the claimants were to return to Tanzania. The panel finds that there is no risk to his life or risk of cruel or unusual treatment or punishment , and no danger of torture to the claimant should he return to Tanzania.
[13] I cannot see anything patently unreasonable in the intertwining of these two issues. Both issues were considered and the same conclusion reached in respect of them.
[14] Accordingly, there is no reason to set aside the Board's decision.
ORDER
THIS COURT ORDERS that this application be dismissed.
"K. von Finckenstein"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2850-03
STYLE OF CAUSE: FRANCIS SEBASTIAN NDOTO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 24, 2004
REASONS FOR ORDER
AND ORDER BY : von FINCKENSTEIN J.
DATED: FEBRUARY 25, 2004
APPEARANCES:
Ms. Stella Anaele
FOR APPLICANT
Ms. Marina Stefanovic
FOR RESPONDENT
SOLICITORS OF RECORD:
Torlaw Holdings
North York, Ontario
FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR RESPONDENT
FEDERAL COURT
TRIAL DIVISION
Date: 20040225
Docket: IMM-2850-03
BETWEEN:
FRANCIS SEBASTIAN NDOTO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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