Date: 19990415
Docket: IMM-2868-98
Between :
PHYDELLIS MUTAMBA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] The applicant seeks judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the Board) dated May 13, 1998, in which the Board determined he was not a Convention refugee as defined in subsection 2(1) of the Immigration Act.
[2] The only issue before the Court is whether the Board erred in its assessment of the evidence regarding the sur place claim. In that regard, the Board stated the following:
| On April 24, 1997, an inquiry4 from CIC officials in Canada regarding the claimant's Zimbabwean passport application was transmitted to Canadian officials in Nairobi and Harare. This inquiry described the claimant as a refugee claimant in Canada. On April 28, 1997, the Zimbabwean Government provided a copy of the claimant's passport application. The correspondence between the Canadian Immigration officials involved does not indicate that the Zimbabwean Government requested any further information about the claimant. Given the alacrity with which this inquiry (clearly highly irregular under the circumstances) was executed (it took a mere four days), the panel is of the view that the Zimbabwean Government did not consider this request other than routine and the claimant's travel to Canada other than legitimate. The panel notes that the claimant completed his PIF on September 2, 1997, some five months after the passport information was requested and executed, yet there is no indication5 that during this period any information about the claimant was sought by Zimbawean (sic) authorites (sic). As well the panel notes that there are no restrictions on movement within or outside the country. Indeed, a Zimbabwean citizen can remain outside Zimbabwe for five years without losing his Zimbabwean citizenship.6 |
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| 5 The claimant indicated that he was in touch with his brother by telephone, and indeed indicated that he had learned during one such telephone conversation of a second visit by the CIO. |
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| 6 Exhibit R-2, item 6, Country Reports for Human Rights Practices for 1996, United States Department of State, January 1997, p. 35. |
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[3] The applicant essentially argues that the disclosure to the Zimbabwean Government had the following consequences: 1) the telex sent by a Canadian immigration officer contains statements which build a cloud of criminality around the applicant; and 2) the telex discloses the fact that the applicant is a "refugee claimant in Canada". In addition, the applicant stated the following in paragraphs 35 and 36 of his "Further Affidavit":
| 35. At the hearing of my refugee claim, I further testified that in December 1997 agents of the government attended at my brother's Harare residence, where I last resided before fleeing Zimbabwe, to demand that I should turn myself in to the authorities as soon as I came back. |
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| 36. After my hearing, I received further information from my relatives in Zimbabwe that the officials of the Zimbabwean government had returned to my relatives to ask further questions about me, including questions surrounding the details of my refugee claim in Canada and my criminal record. |
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[4] The inference drawn by the Board from the "alacrity" with which the inquiry about the applicant was executed by the Zimbabwean Government appears to me to be totally unreasonable. How can one conclude either way that the Zimbabwean authorities are looking for the applicant based on the speed at which a request for information is answered! To me, the fact that the Government took a mere four days to answer this request tells us absolutely nothing about whether the Zimbabwean Government will persecute the applicant upon his return.
[5] As for the second reason given by the Board regarding the sur place claim, with respect to the lack of information sought about the applicant within the five months after he completed his PIF, it is contradicted by the evidence which shows that during that period of time, the applicant testified that in December 1997 agents of the Zimbabwean Government attended at his brother's Harare residence to demand that he should turn himself to the authorities as soon as he came back.
[6] As for the last reason given by the Board for rejecting the applicant's sur place claim, concerning the absence of "restrictions on movement within or outside the country" and the delay of five years to retain the Zimbabwean citizenship, it is far from sufficient to counter the applicant's allegation that he would have to surrender himself to the Zimbabwean authorities as soon as he gets to the port of entry.
[7] As I find that the specific reasons given by the Board do not warrant the rejection of the applicant's sur place claim for refugee status, the application for judicial review is allowed, the decision of the Board quashed and the matter remitted for rehearing by a differently constituted panel.
JUDGE
OTTAWA, ONTARIO
April 15, 1999
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