Docket: IMM-4903-11
Citation: 2012 FC 699
Ottawa, Ontario, June 6,
2012
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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BRIDGET MUGWAGWA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Overview
[1]
Ms.
Bridget Mugwagwa, a citizen of Zimbabwe, claimed refugee
protection in Canada based on her
fear of persecution, mainly on political grounds. A panel of the Immigration
and Refugee Board rejected her claim, primarily because it did not believe she
genuinely feared persecution in Zimbabwe; she returned there twice after
leaving for the United States, and failed to seek asylum while in the US. Therefore,
she did not meet the definition of a Convention refugee under s 96 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] (see Annex for statutory
provisions cited). It also found that any risk Ms. Mugwagwa faced in Zimbabwe was a
general one, shared by the rest of the population, and did not fall within s 97
of IRPA.
[2]
Ms.
Mugwagwa argues that the Board’s conclusion was unreasonable because it failed
to take account of the explanations she provided for returning to Zimbabwe and
for deciding not to seek asylum in the US. Further, it ignored the evidence
relating to the mistreatment of her father and brother when it concluded that
she did not face a personalized risk in Zimbabwe. She asks me
to quash the Board’s decision and order another panel of the Board to
reconsider her claim.
[3]
I
can find no basis for overturning the Board’s decision and must, therefore,
dismiss this application for judicial review. The Board’s conclusion regarding
a lack of subjective fear on Ms. Mugwagwa’s part was reasonable on the evidence
before it. The same is true regarding the Board’s finding that any risk facing
Ms. Mugwagwa in Zimbabwe was a general one.
[4]
The
issues are:
1. Was
the Board’s finding that Ms. Mugwagwa did not subjectively fear persecution in Zimbabwe
unreasonable?
2. Was the Board’s
assessment of the risk facing Ms. Mugwagwa unreasonable?
II. Factual Background
[5]
Ms.
Mugwagwa was a member of the Movement for Democratic Change – Tsvangirai
[MDC-T] since 2004. She attended meetings and helped recruit new members in
rural areas. In June 2004, she was assaulted by a rival group of Zanu-PF youths
and had to hide from them to prevent further mistreatment.
[6]
Ms.
Mugwagwa’s family also experienced difficulties because of their association
with MDC-T. Her father was beaten and detained. After his release, he went into
hiding. Her brother was also attacked by members of Zanu-PF, and was later
harassed and detained by police.
[7]
In
2006, Ms. Mugwagwa moved to the United States to serve as a domestic
employee. Later, before his disappearance, her father stated that members of Zanu-PF
were angry because she was financially supporting MDC-T on the basis of her US income.
[8]
Ms.
Mugwagwa left the US and returned to Zimbabwe twice. She stayed there
for a month in 2007 because her work visa in the US had expired.
She returned again in 2008 when her employer could no longer afford to pay her.
In 2009, she left the US for Canada where she
claimed refugee status.
III. The Board’s Decision
[9]
The
Board’s main finding was that Ms. Mugwagwa’s fear of persecution in Zimbabwe was not
genuine. Had she truly feared persecution, she would not have returned to
Zimbabwe twice after she moved to the United States. Further, she did not
experience any persecution during those visits even though she continued
attending MDC-T meetings while there.
[10]
In
addition, Ms. Mugwagwa did not attempt to seek asylum in the US. While she
explained that the legal fees were high and that her employer discouraged her
from applying, these explanations were not consistent with a genuine fear of
persecution in Zimbabwe.
[11]
The
Board went on to conclude that Ms. Mugwagwa did not face a personal risk of
torture or cruel and unusual treatment or punishment in Zimbabwe. Any risk
she faced was a general one, shared by the rest of the population. In any case,
her evidence about her experiences in Zimbabwe, both before and after
her visits to the US, did not support a finding of substantial risk.
IV. Issue
One – Was the Board’s finding that Ms. Mugwagwa did not subjectively fear
persecution in Zimbabwe unreasonable?
[12]
Ms.
Mugwagwa argues that the Board overlooked her valid explanations for failing to
seek asylum in the US. She testified that her work permit had expired
in the US, that her
employer was opposed to her seeking asylum, that she could not afford a lawyer
to present her claim, and that her employer was unable to pay her. In addition,
the Board failed to take account of the fact that she avoided problems in Zimbabwe on her two
return visits there by keeping a low profile.
[13]
In
my view, the Board’s finding of a lack of subjective fear was not unreasonable
on the evidence before it. Ms. Mugwagwa left the US twice, did not experience
any problems back in Zimbabwe (even though she
continued to attend MDC-T meetings), and did not apply for asylum in the US when she had
ample opportunity to do so. Her explanations for not seeking asylum were not
persuasive. While lawyers can be expensive, Ms. Mugwagwa did not seek legal
aid. Further, had she genuinely feared persecution in Zimbabwe, the fact that
her employer had discouraged her from seeking asylum in the US would not
have dissuaded her.
V. Issue Two – Was the Board’s
assessment of the risk facing Ms. Mugwagwa unreasonable?
[14]
Ms.
Mugwagwa contends that the Board ignored the experiences of her father and
brother when it concluded that the risk to her in Zimbabwe is general,
not personal.
[15]
In
my view, the Board’s conclusion that the risk to Ms. Mugwagwa was neither
substantial nor personal was not unreasonable on the evidence. The evidence
showed that Ms. Mugwagwa had not experienced any sustained mistreatment and was
not of particular interest to her Zanu-PF opponents. Her profile was low. She
said she was not really harmed, even though stones were thrown at her
sometimes. The unfortunate experiences of her brother and father do not, in
themselves, demonstrate that she would be subjected to similar mistreatment.
VI. Conclusion and Disposition
[16]
The
Board’s conclusions that Ms. Mugwagwa’s conduct was inconsistent with a
subjective fear of persecution, and that she was unlikely to face a substantial
risk of mistreatment in Zimbabwe, were not unreasonable
on the evidence. They fell within the range of defensible outcomes based on the
facts and the law. Accordingly, I must dismiss this application for judicial
review. Neither party proposed a question of general importance for me to
certify, and none is stated.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1.
The
application for judicial review is dismissed;
2.
No
question of general importance is stated.
“James
W. O’Reilly”
Annex “A”
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Immigration
and Refugee Protection Act, [IRPA] SC 2001, c 27
Convention
refugee
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is outside each of their
countries of nationality and is unable or, by reason of that fear, unwilling
to avail themself of the protection of each of those countries; or
(b) not having a country of
nationality, is outside the country of their former habitual residence and is
unable or, by reason of that fear, unwilling to return to that country.
Person
in need of protection
97. (1) A
person in need of protection is a person in Canada whose removal to their country or countries
of nationality or, if they do not have a country of nationality, their
country of former habitual residence, would subject them personally
(a) to a danger, believed on
substantial grounds to exist, of torture within the meaning of Article 1 of
the Convention Against Torture; or
(b) to a risk to their life or to a
risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of
that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the
person in every part of that country and is not faced generally by other
individuals in or from that country,
(iii) the risk is not inherent or
incidental to lawful sanctions, unless imposed in disregard of accepted
international standards, and
(iv) the risk is not caused by the
inability of that country to provide adequate health or medical care.
Person
in need of protection
(2)
A person in Canada who is a member of a class
of persons prescribed by the regulations as being in need of protection is
also a person in need of protection.
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Loi
sur l’immigration et la protection des réfugiés, LC 2001, ch 27
Définition
de « réfugié »
96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit se trouve hors de tout pays dont
elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se
réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité
et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne
peut ni, du fait de cette crainte, ne veut y retourner.
Personne
à protéger
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit au risque, s’il y a des motifs
sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne
veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de
ce pays alors que d’autres personnes originaires de ce pays ou qui s’y
trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte
pas de sanctions légitimes — sauf celles infligées au mépris des normes
internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte
pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
Personne
à protéger
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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