Date: 20070216
Docket: IMM-1706-06
Citation: 2007 FC 182
Ottawa, Ontario, February 16,
2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
CLARIS
CHIEDZA MUZA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of the
decision of the Refugee Protection Division of the Immigration and Refugee Board
(the Board) dated March 9, 2006, which determined that the applicant was
neither a Convention refugee nor a person in need of protection.
[2]
The
applicant seeks a declaration setting aside the Board’s decision and remitting
the matter for redetermination.
Background
[3]
The
applicant, Claris Chiedza Muza, is a twenty-one year old citizen of Zimbabwe. She alleged
having a fear of persecution on the basis of her membership in a particular
social group and because of her political opinion. The applicant feared
persecution on the basis of her membership in the pro-movement for democracy
(MDC) party, desertion from the National Youth Service (NYS), and
anti-government opinions. The applicant described the circumstances which led
her to seek protection in the narrative portion of her Personal Information
Form (PIF).
[4]
The
applicant joined the MDC in July 2001. In July 2002, she was forcibly recruited
from school and taken to an NYS training camp run by the ruling Zimbabwe
African National Union-Patriotic Front (ZANU-PF). She believed that she was
recruited because she was a member of the MDC. The applicant explained that
ZANU-PF forced MDC supporters to attend such camps in order to extract
information from them and make them defect. She described her first days at the
camp as tolerable; however, the situation soon deteriorated. The applicant was
forced to denounce the MDC and was deprived of food. She was physically and
sexually abused by her instructors. When the applicant complained about the
mistreatment, she was told that it was her punishment for being an MDC member. Two
of her friends were raped while at the camp.
[5]
The
applicant described an altercation in which a commander began sexually abusing
her and she attempted to fight him off. He pinned her down and threatened to kill
her if she kept resisting. The commander released her when she began suffering
from a serious asthma attack. The applicant then began having chest pain and
persuaded a guard to take her to the infirmary. She remained there for three days
and escaped during visitation hours. The applicant had been at the camp for a
total of thirteen days. She then went into hiding at her uncle’s home. Members
of ZANU-PF searched for her but her mother did not tell them that she had
escaped. The ZANU-PF members told her mother to have her daughter return to the
camp because she was wanted for desertion. The applicant applied for a two-year
United
States
student visa on August 21, 2002, and it was issued on August 29, 2002.
[6]
The
applicant fled Zimbabwe on September 4, 2002 and arrived in the United
States on September 5, 2002, via London. She studied in the United
States
from September 2002 until September 2005. However, she did not take a
sufficient course-load to maintain her student visa. She had lost contact with
her sponsor and was unable to pay her school fees. The applicant explained that
the ZANU-PF was searching for her sponsor for having sponsored people fleeing Zimbabwe. The
applicant explained that she did not seek asylum in the United
States
because she feared being refused and deported to Zimbabwe. Wanted for
desertion, she feared arrest, torture, and rape upon her return. Once she
obtained money from her sponsor, she no longer had status to remain in the United
States.
When she tried to regain status in 2004, American immigration authorities
ordered her to leave the country. She left the United States on September 6,
2005, arrived in Toronto that day, and immediately claimed refugee
protection. Her refugee hearing was held on February 13, 2006, and her claim
was refused by decision dated March 9, 2006. This is the judicial review of the
Board’s decision.
Board’s Reasons
[7]
The
Board determined that the applicant was neither a Convention refugee nor a
person in need of protection. Her claim was rejected due to a lack of credible
evidence. The Board acknowledged the presumption that sworn testimony should be
considered truthful, unless there is good reason to doubt its veracity (see Maldonado
v. Canada (Minister of
Employment and Immigration), [1980] 2 F.C. 302 (C.A.)). Inconsistencies and
implausibilities may be taken into consideration in assessing the credibility
of the applicant’s evidence, in addition to its rationality and common sense
(see Shahamati v. Canada (Minister of Employment
and Immigration), [1994] F.C.J. No. 415 (QL) (F.C.A.)).
[8]
The
Board did not believe that she was a member of the MDC. The applicant testified
that she joined the MDC in July 2001, however her card bore no date and there
was no indication that dues had been paid prior to 2005. The Board found that
the cards could be obtained upon payment of a small fee and were not indicative
of party membership. The applicant stated that she joined the MDC in 2001
because she wanted to support them financially. However, her brother allegedly
paid her dues in 2001 and 2002. Despite being a member of the MDC, she did not
participate in rallies or meetings, and did not have problems prior to her
alleged recruitment in July 2002. When asked by immigration officials whether
she belonged to any political group, she did not mention being a member of the
MDC. She explained this omission by stating that she had not thought about it. Her
failure to attach importance to her MDC membership indicated that she was not a
member. She testified that her siblings were MDC supporters, however, no
documentary evidence was provided in support of this assertion.
[9]
The
applicant’s evidence regarding her recruitment to the NYS was not credible. The
applicant testified that she was recruited while at school in July 2002. However,
she provided a booklet which showed that she had completed the academic session
during which she was allegedly recruited. She explained that her marks were
averages arrived at according to those she had obtained prior to her
disappearance. It was not credible that the school booklet would not mention
that she had failed to complete the term or write exams. It was also not
credible that her mother was never informed that she had been taken away from
school. The applicant explained that the school was government-run and the
headmaster likely felt obligated to allow the recruitment of students. The
method of recruitment lacked credibility, as the evidence showed that
unemployed youth are attracted to join the NYS and are taken from the street. There
was no evidence that students were taken forcibly.
[10]
The
applicant obtained a passport in May 29, 2002, applied to an American college
in July 2002, and received her student visa on August 29, 2002, which showed
that she had prepared to study abroad before her recruitment in July 2002. The
Board reasoned that she left Zimbabwe in September 2002 to
study, rather than to flee persecution. This finding was supported by the fact
that she had not applied for asylum while in the United States. The applicant
explained that she did not claim asylum because she was out of status when she
arrived in the United States. She had been unable to take the required
number of courses for lack of funds. The Board found that if she feared
deportation and was out of status, this would have made her asylum claim all
the more important. Her sister had made a successful claim for asylum in the United
States;
therefore she had family who could have helped her make a claim.
[11]
The
applicant submitted a letter allegedly from the Office of the President, which
advised that she had deserted the NYS and that this was a state security
concern. The letter was faxed on the day of the hearing. The applicant
explained that it had been lost in her mother’s house since December 2002. The
applicant had only received it the previous day. It was impossible to check the
document’s authenticity without the original, and it was unclear who had issued
it. Given her implausible and incredible testimony regarding her recruitment
and escape from the NYS, no weight was given to the letter.
[12]
The
applicant also submitted a letter from a Canadian doctor which indicated that
the scar on her hand was consistent with her history of trauma. Her PIF did not
refer to any incident in which she had been stabbed. The applicant testified
that she was stabbed during an attempted rape. She explained that the
statement, “I’ll kill you” in her PIF narrative referred to the man stabbing
her hand. Her explanation was insufficient and the omission from the PIF was
important. The Board did not accept that the scar was inflicted in the altercation
described in her PIF. In addition, the doctor’s conclusion that she suffered
from post-traumatic stress did not confirm the allegations in her PIF.
[13]
The
Board found that the applicant’s abduction and her treatment after abduction lacked
credibility. This finding was supported by credibility concerns resulting from
omissions in her PIF. The Board found that she was not a member of the MDC and
did not desert the NYS. She also did not have a profile that would render her
likely to be recruited to the NYS. There was no serious possibility that she
would be persecuted if returned to Zimbabwe. The applicant’s claim
under section 97 of IRPA was also rejected as there was no additional evidence
with respect to her fear of returning to Zimbabwe.
Issues
[14]
The
applicant submitted the following issues for consideration:
1. Did
the Board err in finding that the applicant’s claim was characterized by a lack
of credible evidence?
2. Did
the Board err in that its findings of fact were patently unreasonable?
3. Were
the Board’s plausibility findings inconsistent with Federal Court
jurisprudence?
[15]
I
would rephrase the issues as follows:
1. Did the Board err
with respect to its implausibility findings?
2. Was the Board’s
negative credibility finding patently unreasonable?
Applicant’s Submissions
[16]
The
applicant submitted that the Board’s credibility findings were patently
unreasonable. It was submitted that the documentary evidence did not state that
only certain types of youth were forcibly recruited by the militia. There was
evidence before the Board establishing that: (1) women were being raped in
militia camps; (2) opposition supporters were taken to youth militia camps and
tortured; and (3) youth militia training had become compulsory in Zimbabwe. It was
submitted that there was documentary evidence which corroborated her story. As
a result, the Board’s findings regarding the profile of persons forced to serve
in the youth militia was patently unreasonable.
The Board found it implausible that the
applicant was recruited for militia training from school. However, documentary
evidence indicated that the region in which her school was located was an
epicentre of state-sponsored violence during the period in which she was
abducted. The evidence established that the NYS was used by the government to
deploy violence for political purposes and that the country’s institutions were
in chaos. It was submitted that the Board’s findings that it was implausible
for the applicant’s mother not to know that she had been recruited, or that
that the headmaster would allow the recruitment of students, were not well
supported.
[17]
In
Toth v. Canada (Minister of Citizenship and Immigration), (2002), 118 A.C.W.S. (3d) 119, the Court
held that the appropriateness of an implausibility finding can only be assessed
if the Board clearly identifies all of the facts which form the basis of its
conclusion. In Valtchev v. Canada (Minister of Citizenship and
Immigration), (2001)
208 F.T.R. 267, 107 A.C.W.S. (3d) 293, the Court held that the Board must be
careful when rendering a decision based on plausibility, since actions that
appear implausible by Canadian standards may be plausible in the claimant’s
milieu.
The applicant submitted that the Board’s implausibility findings were made with
capricious disregard for the evidence. It was submitted that the Board erred in
that it expected Zimbabwean schools to function as they do in Canada.
[18]
The
applicant submitted that the finding that she did not face a risk of
persecution and could obtain protection did not satisfy the test set out in Faryna
v. Chorny, [1952] 2 D.L.R. 354, (1951) 4 W.W.R. (N.S.) 171(B.C.C.A.),
because an informed person would recognize that her evidence was consistent
with the preponderance of probabilities which obtained in the relevant time and
place. In R.K.L. v. Canada (Minister of
Citizenship and Immigration), (2003) 228 F.T.R. 43, 26 Imm. L.R. (3d) 292, the Court
held that not every implausibility in the applicant’s evidence will reasonably
support a negative credibility finding. It was found that microscopic
examinations of peripheral issues were inappropriate and that credibility and
plausibility should be assessed in the context of country conditions and other
documentary evidence (see also Zirou v. Canada (Minister of
Citizenship and Immigration) (2003), 30 Imm. L.R. (3d) 244, 123 A.C.W.S. (3d)
543).
[19]
The
Board did not believe that the applicant was a member of the MDC and found that
her claim lacked credible evidence. The applicant submitted that the Board held
her evidence to a standard which exceeded that of a balance of probabilities. It
was submitted that she provided documents with respect to her identity and
other elements of her claim (see Refugee Protection Division Rules,
S.O.R./2002-228, Rule 7). It was submitted that the Board did not rely upon any
evidence when it found that her MDC cards were not indicative of party
membership. The applicant submitted that the Board erred in requiring her to provide
documentation of the reasons for which her siblings had been accorded refugee
status in the United
States.
The applicant submitted that the Board failed to apply the presumption set out
in Maldonado above. It was submitted that the fact that her MDC
membership was not listed in the form filled out by the immigration officer was
a minor inconsistency with her PIF narrative that should not have led to a
negative credibility finding.
[20]
The
applicant submitted that the Board made an unsupported inference with respect
to the timing of her application for travel documents and the authenticity of
her narrative. The Board ignored evidence that she had applied for her student
visa on August 21, 2002, when it concluded that she had undertaken preparations
to study abroad in July 2002. The applicant submitted that people obtain
passports for many reasons and that this should not be perceived as an
indication that her claim lacked credibility.
[21]
The
applicant submitted that: (1) her failure to claim asylum in the United
States;
(2) her late disclosure of the letter from the Office of the President; and (3)
evidence of her wounding during the attempted rape, may be contextualized given
the principles established in Zirou. In Jones v. Canada (Minister of
Citizenship and Immigration) (2006),
54 Imm. L.R. (3d) 128, 2006 FC 405, the Court stated that the Board should
both take into account that victims of domestic abuse may exhibit symptoms of
post-traumatic stress syndrome which may impair their memory, and consider the
Gender Guidelines in such cases. The applicant submitted that the Board erred
in failing to apply the Gender Guidelines to her case. It was also submitted
that the uncontradicted evidence before the Board was sufficient to ground a
successful claim.
Respondent’s Submissions
[22]
The
respondent submitted that the Board’s plausibility findings were entitled to a
high level of deference. Therefore, where the Board’s inferences and
conclusions were reasonably open to it on the record, the Court should not
interfere (see Aguebor v. Canada (Minister of Employment
and Immigration) (1993), 160 N.R. 315,
42 A.C.W.S.
(3d) 886 (F.C.A.)). It
was submitted that given the documentary evidence, the Board’s finding that the
applicant’s description of her recruitment was improbable was not capricious.
The respondent submitted that the Board gave cogent reasons for rejecting
certain documents tendered in support of her claim that she was an MDC member.
[23]
The
respondent submitted that the Board was entitled to take into account the
crucial discrepancy between her interview responses and her PIF narrative, regarding
her MDC membership (see Ratnavelu v. Canada (Minister of
Citizenship and Immigration), 2005 FC 938). It was submitted that the
Board was entitled to find that her failure to claim asylum in the United
States
was inconsistent with a well-founded fear of persecution (see Sellathamby v.
Canada (Minister of
Citizenship and Immigration) (2000), 97 A.C.W.S. (3d) 1195). The
respondent submitted that the Board was not required to accept her explanation
for the delay if it was implausible on reasonable grounds (see Bogus v. Canada (Minister of
Employment and Immigration), [1993] 71 F.T.R. 260, 45 A.C.W.S. (3d) 513).
[24]
The
respondent submitted that the Board’s findings regarding the credibility and
plausibility of the applicant’s evidence were reasonably open to it on the
record. It was submitted that the assessment of credibility and weighing of
evidence were within the Board’s jurisdiction and afforded no legal basis upon
which this Court could interfere with the decision (see Castro v. Canada
(Minister of Employment and Immigration) (1993), 42 A.C.W.S. (3d) 118).
Analysis and Decision
Standard of Review
The standard of review applicable to the
Board’s credibility and plausibility findings is that of patent
unreasonableness (see Aguebor above).
[25]
Issue
1
1. Did the Board err
with respect to its implausibility findings?
The Board determined that the applicant
was not forcibly recruited into an NYS militia camp. This determination was
based upon a number of implausibilities in her story. In Valtchev
above, Justice Muldoon stated the following regarding implausibility findings
at paragraph 7:
A tribunal may make adverse
findings of credibility based on the implausibility of an applicant's story
provided the inferences drawn can be reasonably said to exist. However,
plausibility findings should be made only in the clearest of
cases, i.e., if the facts as presented are outside the realm of
what could reasonably be expected, or where the documentary evidence
demonstrates that the events could not have happened in the manner asserted by
the claimant. A tribunal must be careful when rendering a decision based
on a lack of plausibility because refugee claimants come from diverse cultures,
and actions which appear implausible when judged from Canadian standards might
be plausible when considered from within the claimant's milieu. […]
[26]
Unemployed
youth
The Board stated that the
evidence showed that bored, unemployed youth are attracted to join the youth
militia and that those forced to join the youth militia appeared to be
unemployed youth picked up from the street. The Board then concluded that it
would be implausible that the applicant was recruited in the manner she
described, as she was an aspiring young A-level student attending a boarding
school. The Board failed to note that the documentary evidence also stated that
national youth service was now compulsory in Zimbabwe (see tribunal
record, volume 2, page 170). In light of this evidence, I find that this
implausibility finding was patently unreasonable.
[27]
Mother
not informed by school that her daughter was forcibly recruited
The documentary evidence
indicates that the ZANU-PF is free to do what it wants. Its members can
assault, torture and rape people. The applicant testified that the school was
government-run and that the headmaster would probably be in trouble if he did
not cooperate with the ZANU-PF. This could also explain why he did not report
their activities to the applicant’s mother. What would be implausible in a
Canadian context is not necessarily implausible in the chaotic Zimbabwean
context. I find that this implausibility finding is patently unreasonable.
[28]
School
report
The applicant testified she was
taken from the school approximately three weeks before the end of the school
term. The Board referred to a school document which it concluded showed that
the applicant had finished the term and stated when the next term would begin.
Also, the Board found that there was no indication under “Form Teacher’s
Comments” that the applicant did not finish the school term. The applicant
testified the marks shown were averages from marks achieved prior to her
disappearance from the school. The Board simply said this was not credible. I
note that there were no marks given under the “Exam” column. I am of the view
that the Board cannot use this evidence to find that the applicant lacked
credibility.
[29]
Passport
and Visa
The Board concluded that the
applicant went to the United States in order to study because she obtained a
passport on May 29, 2002, and she received her U.S. student visa
on August 29, 2002. I would note that the applicant was never asked why she
obtained the passport, and that she applied for the student visa on August 21,
2002, which was after she was recruited in mid-July. I am of the view that the
Board’s conclusions on this point are patently unreasonable.
[30]
I
do not propose to deal with the remaining issue as I am of the view that having
considered the above findings, the issue of the applicant’s credibility should
be revisited with consideration for the evidence noted. I cannot know how
consideration of these facts would have affected the Board’s credibility
finding. It is not for this Court to make that finding as it is the Board’s
right to consider these additional facts and make its credibility finding.
[31]
The
application for judicial review is therefore allowed and the matter is referred
to a different panel of the Board for redetermination.
[32]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[33]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is referred to a different panel of the Board for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27.:
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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.
(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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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.
(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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