Date: 20091002
Docket: IMM-2133-05
Citation: 2009 FC 1001
Halifax,
Nova Scotia, October 2, 2009
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
REJOYCE
ENNIAH CHOTO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[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 March 15, 2005, which
determined that the respondent is neither a Convention refugee nor a person in
need of protection.
[2]
The
applicant seeks an order setting aside the decision and referring the matter
for redetermination by a differently constituted panel of the Board.
Background
[3]
This
matter was deferred until after a decision was made in the series of cases
dealing with reverse order questioning. As a result of the decision in the
reverse order questioning cases, that argument was discontinued in the present
case.
[4]
Rejoyce
Enniah Choto (the applicant) is a citizen of Zimbabwe. She came to
Canada on a student
visa in September 2001. She returned to Zimbabwe for a
two-month visit in the summer of 2003. Her student visa to Canada was extended
until May 30, 2005. Everything was fine until August 2004 when she heard from a
family friend that her mother had been attacked in Zimbabwe by men from
the ruling party and their home had been vandalized. She then learned from her
father that the whole family is at risk because he supports the opposition
party, Movement for Democratic Change (MDC), and the applicant’s mother is a
member of the MDC. Until then, the applicant did not know that her parents were
involved in the MDC. The applicant has no political affiliation herself.
[5]
As
a result of these events, the applicant fears returning to Zimbabwe. On
September 7, 2004, the applicant claimed refugee protection on the basis of
perceived political opinion and membership in a particular social group. On
March 15, 2005, the Board denied the claim because it did not believe the
applicant’s story.
Reasons for
the Board’s Decision
[6]
The
Board found several omissions and inconsistencies which impugned the
applicant’s credibility. First, the applicant failed to mention in her Personal
Information Form (PIF) that from 1998 to 2003 her father was a diplomat of
President Mugabe’s government in Zimbabwe and after 2003, he was
posted to the Ministry of Foreign Affairs. This information was provided in the
applicant’s Canadian visitor visa file, and it also was given in her oral
testimony. The Board found this to be a significant omission because the
applicant’s claim was based on political grounds. [Her father holding a
high-ranking position in government while her mother was a member of the
opposition party would have greatly increased the risk that the family faced in
Zimbabwe at the hands
of the ruling party].
[7]
Second,
the applicant testified at the hearing that it was not until October 2004 that
she learned from her mother that her father had been fired from his government
position due to her mother’s membership in the MDC. That was the applicant’s
explanation as to why information about her father’s profile in government was
missing from her PIF which she had signed in October 7, 2004. The Board did not
find this to be a reasonable explanation. The Board noted that no information
about the father’s position or his dismissal from that position was in the
e-mail sent by the applicant’s mother on February 23, 2005 and tendered in
support of the applicant’s claim. The only mention in the e-mail of any problems
that the applicant’s father might have faced was the statement, “It has been
rough for my husband but by the grace of God we are still surviving”.The Board stated that the applicant’s
mother’s “failure to mention the profile of her husband and the punitive action
taken against him is a key reason why I find her communication contrived and
untrustworthy”.
[8]
Third,
the applicant’s mother stated in her e-mail that “Because our home phone was
destroyed on the day of the attack, I only managed to speak with my daughter
after about three weeks after the attack”. The Board found this statement to be
inconsistent with the allegation that the applicant’s mother was in the
hospital for the six weeks following the attack.
[9]
Fourth,
despite the great risk that the applicant’s family faced in Zimbabwe, the
applicant did not provide persuasive evidence that her family had seriously
tried to leave and she was unaware as to whether they had any intention of
leaving. There was also no indication in the applicant’s mother’s e-mail that
the family wished to leave Zimbabwe.
[10]
The
Board also addressed the concerns of applicant’s counsel with respect to the
forced conscription of youth in the government’s militia which had begun in
2000. The Board found that the risk it posed to the applicant was minimal. The
Board based this conclusion on the documentary evidence and the fact that the
applicant was not afraid to return to Zimbabwe in 2003, the applicant’s parents
did not express concern about the militia in their communications with her, and
the applicant’s sister was within the catchment age and there was no persuasive
evidence that she had been approached to join the youth militia.
Issues
[11]
The
applicant raised the following issues:
1. Was
the Board’s overall assessment of the totality of the evidence patently
unreasonable, perverse and capricious?
2. Did
the Board misapprehend material evidence?
3. Did
the Board decide the case on the basis of its own conjecture and speculations
and not based on the evidence before it?
4. Did
the Board take extraneous factors into consideration in its assessment of the
applicant’s credibility?
[12]
The
issue is whether the Board erred in finding that the applicant was neither a
Convention refugee nor a person in need of protection.
Applicant’s
Submissions
[13]
The
applicant submitted that the Board erred in substituting its own speculative
views as to what was plausible in place of the applicant’s evidence.
[14]
The
applicant submitted that the Board erred in reading the applicant’s mother’s
e-mail as though it should have been an exhaustive account of their family
experiences.
[15]
The
applicant submitted that the Board erred in concluding that it was implausible
for the applicant’s father to work for the government and to support the
opposition at the same time. The applicant submitted that there was no evidence
that the family’s support for the opposition was known to the government until
the family was attacked and the applicant’s father was dismissed from his
position.
Respondent’s
Submissions
[16]
The
respondent submitted that it was reasonable for the Board to disbelieve the
applicant on the basis of the omissions, inconsistencies and contradictions
noted in the applicant’s story.
[17]
The
respondent submitted that the fact that the applicant’s father was a diplomat
of the Mugabe government from 1998 to 2003 and posted to the Ministry of
Foreign Affairs thereafter was extremely relevant to the applicant’s claim. The
respondent submitted that the applicant seriously undermined her credibility by
omitting this crucial element from her PIF.
[18]
The
respondent submitted that the dismissal of the applicant’s father due to the
applicant’s mother’s membership in the opposition party would have meant that
the government was informed of the political involvement of the family and
would have demonstrated that the applicant and her family were at greater risk.
The respondent submitted that the Board was well founded to conclude that the
omission of this information from the applicant’s mother’s e-mail undermined
the credibility of the applicant’s story.
Analysis
and Decision
Standard
of Review
[19]
The standard of review applicable to credibility
determinations is the standard of patent unreasonableness (see Keleta v. Canada (Minister of Citizenship and
Immigration), 2005 FC 56 at paragraph 11). The
standard has now become the standard of reasonableness since the decision of
the Supreme Court of Canada in Dunsmuir v. New
Brunswick, 2008 SCC 9.
Issue
[20]
Did the Board err in finding that the applicant is neither
a Convention refugee nor a person in need of protection?
[21]
The
applicant’s claim is that she fears persecution by the ruling party in Zimbabwe
because her mother is a member of the opposition party, MDC, and her father was
fired from his position with the government due to her mother’s political
involvement. The Board found that the applicant’s story was contrived, mainly
because the fact that the applicant’s father had a high-ranking position with
the government—a fact which was crucial to the applicant’s politically-based claim—was
missing from her PIF and from her mother’s e-mail filed in support of the
claim. The e-mail written by the applicant’s mother in February 2005 stated
that she had been attacked by the ruling party because of her membership in the
MDC, but made no mention of the fact that her husband had a position in the
government or had been fired from his position because of their involvement
with the MDC.
[22]
The
Board found that when the applicant was confronted with this omission of
information at the hearing, she could not provide a reasonable explanation for
it. I shall reproduce the relevant portion of the transcript below, as shown at
pages 257 to 259 of the tribunal record:
PRESIDING MEMBER: Do you think, and I’m
just asking for your opinion here, do you think that your father and your
mother would be at a greater risk of trouble with the government, given that
your father was a member of the government and was a supporter of the MDC?
Would this put them at greater risk?
CLAIMANT: Well, at this time, yes, because
my father has already lost his job. He no longer works for the Foreign Affairs
since they discovered that his spouse was a member of the MDC.
PRESIDING MEMBER: How do we know that?
Where did you tell us that? When did he lose his job?
CLAIMANT: After the incident.
PRESIDING MEMBER: Your mother didn’t say
that in the letter either, in the email.
CLAIMANT: No, I only realized - like, I
was told that my father lost his job after I already made –
PRESIDING MEMBER: Anyway, you haven’t
answered my question. My question was, would you think there would be a greater
risk for your mother and father, being supporters of the MDC, while your father
was a member of the government.
CLAIMANT: Yes.
PRESIDING MEMBER: It would be, wouldn’t
it? But see, you haven’t said that in your form, that all of this risk affects
your mother and father, and by extension, presumably, affects you and your
sisters.
CLAIMANT: Yes.
PRESIDING MEMBER: So why wouldn’t you
have said that in your form?
CLAIMANT: Because my father lost his job
after I had already made my claim here.
PRESIDING MEMBER: No, you’re still not -
okay.
RPO: Why did your mother, why did she
join the MDC?
CLAIMANT: Because of the changes that
were going on in my country. Like, she used to support the Zanu PF, but
because of the many promises and the changes that were going on, she was also
looking for a change and hoping that, with the situation that was back home,
things might change for the better if she joined a different party, because since
the other party wasn’t doing much –
PRESIDING MEMBER: When did you say you
heard that your father lost his job? When did you hear that?
CLAIMANT: In October.
PRESIDING MEMBER: October of 2004?
CLAIMANT: October 2004.
PRESIDING MEMBER: See, your mom’s email
is dated 23rd of February 2005.
CLAIMANT: Because my mother had written
a letter, like in person, but then because when she tried to send the documents
to me the post opened the letters and they said she couldn’t sent [sic] it
directly to me because whatever information was contained in it was a risk. And
that’s when I later on contacted my mother and I told her, if I couldn’t get
the letter on time she could at least write me an email.
PRESIDING MEMBER: Well, you know, she’s
writing this obviously on your behalf. It’s a To Whom It May Concern letter,
and I would have thought that if her husband was a member of the government and
had been fired because they found out that he or she was supporting the MDC,
that that would have been an additional strong point for her to mention in this
communication to you, because it’s not for your knowledge. This is a To Whom
It May Concern letter. It’s for my knowledge.
CLAIMANT: Yes.
PRESIDING MEMBER: You see?
CLAIMANT: Well, I don’t think - I don’t know,
she might have not-
[23]
In
my view, the omission of this crucial information from the applicant’s
evidence, coupled with the lack of a satisfactory explanation for this
omission, is a sufficient basis on which to find that the applicant’s story was
not credible. It was therefore not unreasonable for the Board to conclude that
the applicant lacked a well-founded fear of persecution if returned to Zimbabwe.
[24]
I
would therefore find that this application for judicial review be dismissed.
[25]
Neither party wished to submit a proposed serious question
of general importance for my consideration for certification.
JUDGMENT
[26]
IT
IS ORDERED that the application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
S.C. 2001, c. 27
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95.(1)
Refugee protection is conferred on a person when
(a) the person
has been determined to be a Convention refugee or a person in similar
circumstances under a visa application and becomes a permanent resident under
the visa or a temporary resident under a temporary resident permit for
protection reasons;
(b) the Board
determines the person to be a Convention refugee or a person in need of
protection; or
(c) except in
the case of a person described in subsection 112(3), the Minister allows an
application for protection.
(2) A
protected person is a person on whom refugee protection is conferred under
subsection (1), and whose claim or application has not subsequently been
deemed to be rejected under subsection 108(3), 109(3) or 114(4).
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.
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.
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95.(1)
L’asile est la protection conférée à toute personne dès lors que, selon le
cas :
a) sur constat
qu’elle est, à la suite d’une demande de visa, un réfugié ou une personne en
situation semblable, elle devient soit un résident permanent au titre du
visa, soit un résident temporaire au titre d’un permis de séjour délivré en
vue de sa protection;
b) la
Commission lui reconnaît la qualité de réfugié ou celle de personne à protéger;
c) le ministre
accorde la demande de protection, sauf si la personne est visée au paragraphe
112(3).
(2)
Est appelée personne protégée la personne à qui l’asile est conféré et dont
la demande n’est pas ensuite réputée rejetée au titre des paragraphes 108(3),
109(3) ou 114(4).
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.
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.
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