Date: 20040416
Docket: IMM-6324-03
Citation: 2004 FC 575
OTTAWA, Ontario, this 16th day of April, 2004
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
HLALO NDLOVU
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[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 July 29, 2003, wherein the Board determined that the applicant is not a Convention refugee or a person in need of protection due to a lack of credible evidence.
FACTS
[2] The applicant is a 27 year old citizen of Zimbabwe who claims a well-founded fear of persecution because of his political opinion, at the hands of Zimbabwe African National Union-Patriotic Front ("ZANU-PF") supporters, war veterans, the Zimbabwe police, and the Central Intelligence Organization ("CIO"). On July 24, 2001 the applicant made a refugee claim upon his arrival at Dorval Airport in Montreal.
[3] The applicant claims that he is a member of the Liberty Party of Zimbabwe ("LPZ"), which opposes the ruling ZANU-PF. He makes the following allegations:
1. in May 2001, while attending an LPZ meeting in Bulawayo, he and eight other LPZ members were arrested , interrogated, and detained for approximately one day by riot police;
2. on June 3, 2001, while attending an LPZ meeting, war veterans arrived at the venue armed with baseball bats, sticks, knobkerries, and axes. They began to beat up LPZ members, including the applicant. He fled to his uncle's house in another township because some of his attackers had followed him to his parent's home. His parents advised him that someone had telephoned the family home and threatened to kill him, and an unidentified person was watching the family home; and,
3. on June 9, 2001 his parents informed him that he was wanted for questioning by the police. In addition, government authorities contacted his employer and instructed her to fire him, or risk the consequences.
Following these events, the applicant fled Zimbabwe on July 21, 2001, via South Africa and France.
[4] The Board found that the applicant was a member of LPZ, and that his fear of persecution is related to his political opinion. However, the Board decided that the applicant did not provide sufficient credible evidence to support his claim for the following reasons:
1. the applicant's explanation for not making a refugee claim while in South Africa for two days was unreasonable, and not supported by the documentary evidence;
2. the applicant's explanation for not making a refugee claim while in France was also unreasonable, and unsupported by the documentary evidence, and the applicant's own evidence;
3. the corroborating letters sent by the LPZ were mere copies and of a suspicious character;
4. the documentary evidence indicates that the LPZ has been selling false identity cards and letters for asylum purposes;
5. the June 13, 2001 supporting letter from ZimRights was issued 2 months before the applicant left Zimbabwe, yet the applicant failed to bring it with him to Canada, or to explain the discrepancy in his evidence as to how he received the letter;
6. the applicant's low political profile is unlike that of opposition political activists who would likely face persecution upon return to Zimbabwe; and
7. the applicant's sister's testimony was vague and did not corroborate the applicant's account of persecution.
ANALYSIS
[5] This Court will interfere with a credibility finding when based on a patently unreasonable finding of fact. See Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.), and De (Da) Li Chen v. Canada (Minister of Citizenship and Immigration) (1999), 49 Imm. L.R. (2d) 161 (F.C.A.).
[6] The Board heavily based its rejection of the applicant's credibility on the following erroneous finding of fact at page 6 of its decision:
[...] He alleged that the LPZ split into two factions after the date of the correspondence referred to in the foregoing documentary evidence of June 2001, and after the split the Secretary-General signed all of those attestation letters.
However the documentary evidence before me does corroborate that LPG split into two different political factions after June 2001 [sic]. On the contrary, this documentary evidence indicates that according to two newspaper articles, one from the Zimbabwe Mirror on June 16, 2000 and one from The Daily News on May 22, 2000, internal decisions within the LPG led to the formation of two rival groups. According to the Zimbabwe Mirror, one of the groups is led by Caanan Moyo and the other by Jubulani Ndlovu.[...] Given this testimony, the applicant was asked why the Secretary-General from the splinter party, the Liberal Party, would sign the January 5, 2003 letter on his behalf. However, the claimant provided no response to this question. [emphasis added]
This is a misstatement of the documentary evidence because the Zimbabwe Mirror article that the Board relied on refers to the leader of the second group as Twoboy Jubane, and not Jabulani Ndlovu. The documentary evidence also states that the Secretary-General, Jabulani-Ndlovu, was
authorized to sign attestation letters, and this is the name that appears on the applicant's January 5, 2003 attestation letter. I find that the Board carried this error throughout its analysis of the applicant's corroborating letters and therefore rejected his credibility, in part, on this material fact.
[7] I find that contrary to the Board's finding, both the applicant and his sister testified that the applicant's sister left Zimbabwe in 2002. Therefore the applicant could not have based his 2001 decision to make a refugee claim in Europe on an event that had not yet occurred. The applicant left Zimbabwe in 2001.
[8] The documentary evidence indicates that LPZ youth supporters were being beaten up even though the party is not a major opposition to the ZANU-PF. The Board finds to the contrary. The Board also does not refer to the hospital record dated June 9, 2001, which the applicant supplied to corroborate his narrative. This is material corroborative evidence which ought to have been considered.
[9] The letter from ZimRights dated June 13, 2001 was discounted because it was obtained for the applicant by the same person who obtained the letters from the Liberty Party. I am of the view that since the Liberty Party letters were rejected on a patently unreasonable basis, I must overturn the Board's assumption that the ZimRights letter was not credible.
[10] I also cannot accept the Board's rejection of the claim because of delay. There was no delay, and the failure to claim in South Africa and France was reasonably explained, and makes common sense.
[11] Accordingly, I am of the view that this application should be allowed.
[12] The parties and the Court agree that this application does not raise a serious question of general importance for certification.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is allowed and the matter is to be redetermined by a differently constituted panel of the Board.
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6324-03
STYLE OF CAUSE: Hlalo Ndlovu v. MCI
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: April 6, 2004
REASONS FOR ORDER
AND ORDER BY : THE HONOURABLE MR. JUSTICE KELEN
DATED: April 16, 2004
APPEARANCES:
Simon K. Yu FOR THE APPLICANT
W. Brad Hardstaff FOR THE RESPONDENT
SOLICITORS OF RECORD:
Simon K. Yu, Barrister & Solicitor
Edmonton, AB FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, ON FOR THE RESPONDENT
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