Date: 20070509
Docket: IMM-1451-06
Citation: 2007
FC 500
Ottawa, Ontario, May 9, 2007
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
MOSES JERRY WILLIAM DZIMBA
(A.K.A. MOSES JERRY WIL DZIMBA)
SOLA DZMIBA
Applicants
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) that determined that
the applicants were not Convention refugees or persons in need of protection
pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (IRPA).
Allegations made by the applicants
[2]
The
principal applicant and his wife are citizens of Zimbabwe. The principal applicant alleges to have
a well-founded fear of persecution based on his membership in a particular
social group, that is to say, a police officer with knowledge of police and war
veteran activities, as well as on a perceived political opinion as a supporter
of the MDC (Movement for Democratic Change).
[3]
The
principal applicant worked for 28 years as a police officer in Zimbabwe, specifically from 1974 to
2002. He was entitled to retire in 1999 after 25 years of service but chose to
continue for another three years. He held a variety of positions, including
those of senior officer. According to the documentary evidence, the police
force in Zimbabwe is well known for
perpetrating human rights abuses. The principal applicant was aware of such
abuses. However, he asserts that he never committed any such abuses but was
committed to bringing to justice those individuals who did.
[4]
The
principal applicant alleges that in 2001 he was put in charge of a police
precinct and investigated abuses committed by government supporters. In 2001,
war veterans attacked farmers in a land grab. He attempted to investigate the
complaints of the citizens and arrest the offenders but his superiors hampered
his investigation. He was ordered to release suspects and close the files. In
February 2002, he ordered his officers to search the government party (ZANU-PF)
office, at which point he came under suspicion as an opposition party (MDC)
supporter. During the run-up to the elections in March 2002, he met with MDC
MPs from his area to address their security concerns in the face of government
violence. When the MDC won the election, he asserts that he was threatened by
the secret police who accused him of opposition sympathies.
[5]
As a
result of the above, the principal applicant alleges that he was transferred to
the Commissioner’s pool, an office created to send those officers suspected of
sympathizing with the MDC to a state of limbo without duties or command. He was
worried that he could easily be made to disappear. Fearing for his life, he
arranged to leave the country. Acting as secretly as possible, he was able to
secure a visa, receive a lump sum payment from his pension, and depart. He
arrived in the United
States via South Africa and was joined there by his
wife (the female applicant) in December 2003.
[6]
The female
applicant returned to Zimbabwe in May 2004 to be with their
children. She alleges that she had hoped the situation in Zimbabwe would have gotten better. She
claims that members of Zanu-PF and of the Central Intelligence Organization
(CIO) told her that her husband was a spy and that she and the children would
suffer the consequences. After repeated visits by “thugs” to the family home,
in October 2004, she returned to the U.S.
The applicants came to Canada in September 2005 and made
their claim for refugee protection.
[7]
The
applicants’ refugee claim was heard by the Board on January 10, 2006. The
principal applicant was informed by the Board that exclusion and credibility
were at issue. Minister’s counsel did not appear at the hearing.
Decision of the Board
[8]
The
principal applicant’s claim for refugee protection was refused on the ground
that he was excluded under Article 1F(a) of the Convention (pursuant to s. 98
of the IRPA), which provides as follows:
F. The
provisions of this Convention shall not apply to any person with respect to
whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime,
or a crime against humanity, as defined in the international instruments drawn
up to make provision in respect of such crimes;
[9]
The Board
stated that the evidence led it to find on a balance of probabilities that the
principal applicant was a member of the Zimbabwe police force; that the same
police force, along with other security forces, perpetuated crimes against
humanity in a widespread and systematic fashion; that the principal applicant
was deployed to carry out such crimes and that he indeed engaged in acts of
torture; that even if he did not personally engage in such acts he, by
knowledge of them, was complicit, in that he did not remove himself from his
occupation when he became aware of such crimes against humanity.
[10]
Indeed,
the Board found that the principal applicant should have left the police force
at the first opportunity available, finding that it was not reasonable that the
principal applicant continued to work in a police force that had committed
human rights abuses, tortured farmers and opposition party members and
civilians, only leaving when he received his pension. Noting that it also had
“separate and serious credibility concerns”, the Board found that if the
principal applicant’s evidence was to be believed regarding the adverse
attention he had drawn “since 2001”, it was “implausible that his perceived
sedition” would not have resulted in his immediate dismissal, pointing to
documentary evidence in this regard that indicated that the army and the police
were purging opposition supporters from their ranks.
[11]
That being
said, the Board recognized that a claimant’s sworn testimony is presumed to be
true, unless there is reason to doubt its truthfulness. In this regard, the
Board noted that the “principal claimant’s own testimony is that on numerous
occasions when he tried to investigate the offences committed by the Zanu-PF he
was ordered to release the individuals and it was since then that he was not
only not dismissed but also got promoted, allowed to retire and allowed to
leave the country.” In light of all of this, the Board did not believe that the
CIO suddenly began threatening the principal applicant and his family. The
Board concluded on a balance of probabilities that the principal applicant had
not attracted the attention of the authorities, was not perceived as an
opponent of the regime, and was not perceived as a supporter of the MDC.
[12]
The Board
went on to find that as the principal applicant was able to access his pension,
he was in good standing with the police. It concluded that if he were truly
considered an opponent, he would have been dealt with differently, citing the
fact that the documentary evidence was “full of the actions and the brutalities
of the authorities towards individuals who betrayed the regime”. The Board
found that this further strengthened its conclusion that the principal applicant
had never been targeted or received threats to his life from Zanu-PF or the
CIO.
[13]
The Board
additionally found that the documentary evidence was quite specific about the
crimes against humanity for which there would be serious reasons for
considering the principal applicant had committed or had been complicit in. A
considerable number of examples of human rights abuses are outlined in the
Board’s decision from existing country information reports, the most specific
reference being to the land grab operation conducted by war veterans, which
received government support. The Board noted for example that the documentary
evidence showed that the police force was integral to the policy of the Mugabe
government to harass, intimidate and if necessary, kill white farmers if they
resisted giving up their land, and that these crimes against humanity were
perpetuated in a widespread and systematic way. Indeed, the Board found that if
the principal applicant had not obeyed as he was instructed in order to commit
crimes against humanity, he would have been dealt with and dismissed from his
duties.
[14]
The Board
also dismissed the claim made by the female applicant. The Board drew an
adverse inference from the female applicant re-availment, finding it
constituted behaviour inconsistent with a well-founded fear of persecution, a
fear of death, or a fear of cruel and unusual treatment or punishment. In light
of the negative credibility findings with respect to her husband’s claim, the
Board further found that there was not a reasonable chance that the female
claimant would be persecuted if she were to return to Zimbabwe, and that she was not a person in need
of protection.
Standard of review
[15]
The
Federal Court of Appeal in Harb v. Canada (Minister of Citizenship and
Immigration),
2003 FCA 39 at paragraph 14 [Harb] dealt with exclusion under Article
1F(a) of the Refugee Convention. The Court of Appeal found that to the extent
the issues raised are findings of fact, they are to be reviewed on a standard
of patent unreasonableness; where the question is one of mixed fact and law,
they “can only be reviewed if they are unreasonable”; to the extent that they
raise a question of pure law alone, such as the interpretation of the exclusion
clause, “the findings can be reviewed if they are erroneous” i.e. the
standard of correctness.
[16]
Indeed, as
indicated in Kasturiarachchi v. Canada (Minister of Citizenship and
Immigration), 2006 FC 295 at paragraph 12 [Kasturiarachchi], the
assessment of the Board’s findings of facts is on the basis of the patently
unreasonable standard; whereas the “question as to whether the facts, as found,
establish that the individual was complicit in crimes against humanity is
reviewable on a standard of reasonableness”. In this regard, when assessing
whether a decision satisfies the reasonableness standard, the question is
whether the reasons, when taken as a whole, are tenable as support for the
decision: Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 at
paras. 55-56 (see also Chowdhury v. Canada (Minister of Citizenship and
Immigration), 2006 FC 139 at para. 13; Shrestha v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 887 at paras. 10 and 12 ; and Valère
v. Canada (Minister of Citizenship and Immigration), 2005 FC 524 at para.
12).
Credibility of Principal
Applicant
[17]
The
principal applicant takes issue with the following findings of fact made by the
Board.
[18]
First,
the Board erred with regards to two important dates. The Board incorrectly
stated that the principal applicant had started being threatened by the
authorities in 2001 (tribunal record, pages 7‑8) and that he left
the country in March 2003. Though his investigations had been interfered with
earlier, which he said frustrated him, he was not in fact threatened and
investigated until March 2002, after he had ordered his men to search the ZANU-PF
party offices and the MDC had won the election in his district. In May 2002, he
was removed from his post and transferred to another precinct; in August 2002
he was transferred to the “Commissioner’s pool” and went into hiding; and in
November 2002, he fled Zimbabwe. The principal
applicant highlights that these differences in dates are important, because the
correct dates demonstrate that once he was identified as a threat, the authorities
acted quickly.
[19]
Second,
the Board’s conclusion that it was implausible that the principal applicant’s
actions would have resulted in anything other than dismissal is patently
unreasonable, particularly in light of the fact that the Board acknowledges that
the Commissioner’s pool had been “established to send those officers
[suspected] of sympathizing with the MDC to a state of limbo without duties or
command” (tribunal record, page 12).
[20]
Third,
the conclusion of the Board that the principal applicant was “not only not
dismissed but also got promoted” (tribunal record, page 8) is also patently
unreasonable. The principal applicant states there was no evidence before the
Board to indicate such a promotion. The applicant highlights that this
reference is made with respect to the period 2001-2002. The applicant only held
two positions during this time, Commander (January-May 2001) and Deputy Officer
Commanding (May 2001-August 2002). There was no evidence before the Board that
the transfer from the first to the second entailed a promotion or any
“increased responsibility”. There is a reference to the fact that the principal
applicant was made “Deputy Constituency Commander” for his constituency during
the March 2002 election, but this designation is given automatically to all
superintendents during an election period, as explained in paragraph 2 of the
affidavit submitted by the principal applicant with the present application.
[21]
Fourth, the principal applicant
states that he resigned in a clandestine fashion and that his resignation was
done quickly and quietly. The principal applicant also notes that the Pensions
Office is a separate department that must not have been aware he was under
investigation and that the police were unaware that he was withdrawing his
pension. Therefore, the Board’s assertion that he was allowed to retire is
patently unreasonable.
[22]
Fifth,
the Board’s assertion that he was allowed to leave the country, as it was
actually a carefully planned escape, is also patently unreasonable.
[23]
In
my opinion, these various grievances are unfounded and cannot succeed. The
findings made by the Board are based on the evidence and are not patently
unreasonable. In particular, I find that the Board made no reviewable error in
finding that the principal applicant had received adverse attention from the
authorities in 2001, because the principal applicant had been allegedly told
twice that year to stop investigations. With respect to the applicant’s
assertion that the authorities moved quickly to threaten, investigate and
isolate him, the evidence indicates otherwise. The applicant testified that as
early as 2001, when he was stationed in Kwe-Kwe, he was under suspicion of
having MDC sympathies (tribunal record, page 363). Despite this, and the fact
that he was allegedly threatened in 2002, he did not leave the country, quit
his job or get fired. He did not “resign” until August 2002, the same month he
was allegedly moved to the Commissioner’s Pool (tribunal record, pages 384-385).
[24]
I
also note that the evidence is not consistent with the principal applicant’s
assertion that he suffered consequences from his alleged investigation into
criminal activities of the Zanu-PF. He held several senior-ranking positions
and was given increased responsibilities during the time period in which crimes
against humanity were taking place. Therefore, it was not patently unreasonable
for the Board to have considered this fact. Indeed, as evidenced by the
information set out in his Personal Information Form (PIF), the principal applicant
had received a number of promotions and had enjoyed great mobility throughout
his career. With respect to the finding that the principal applicant was
“allowed to retire”, given that the principal applicant was eligible for
retirement as of June 1999, turned in his equipment and received his pension
and benefits, this characterization by the Board is not patently unreasonable,
as there was evidence indicating that those suspected of being MDC sympathizers
were denied such benefits. Aside from the principal applicant stating he had to
obtain his pension in a “clandestine” manner, there is no evidence that the
normal procedure was not followed. It was not unreasonable for the Board to
conclude that the principal applicant had left the force in good standing.
[25]
Findings
regarding credibility are quintessentially findings of fact. The question,
therefore, is not whether the reasons of the Board are error-free, but rather,
the question is whether or not the conclusions of the Board can be said to have
been made without regard to the evidence, in a perverse and capricious manner.
Moreover, the Board’s decision has to be read as a whole and the alleged errors
are not determinative. Even if I were to accept that the Board erred with
respect to the principal applicant’s fear of persecution, as explained below,
the Board’s conclusion that the principal applicant was complicit with crimes
against humanity is reasonable.
Exclusion of Principal Applicant
[26]
The
principal applicant questions the legality of its exclusion under Article 1F(a)
of the Convention on a number of grounds that can be summarized as follows.
[27]
First, the
principal applicant argues that there is no evidence supporting the finding
that he has been personally engaged in torture or has committed crimes against
humanity. He challenges the reasonableness of the assumption made by the Board
that “if the principal claimant did not obey as he was instructed in order to
commit crimes against humanity, he would have been dealt with and dismissed
from his duties as the regime had been doing” (tribunal record, page 10). The
principal applicant points to the fact that there was no evidence that the
applicant was ever “instructed” to commit such abuses, nor did the Board
identify any reason for believing that a person of the applicant’s rank and
seniority would ever have received such an order.
[28]
Second,
the principal applicant argues that although the Board noted that the abuses by
the police in Zimbabwe are widespread and
systematic, it did not find that the Zimbabwean police is an organization with
a “limited, brutal purpose” such that mere membership would be sufficient to
establish an officer’s complicity in torture or crimes against humanity. The
Board therefore cannot base its findings on the mere fact that the applicant
was a police officer for 28 years: Ramirez v. Canada (Minister of Employment and
Immigration),
[1992] F.C.J. No. 109 at para. 16 (F.C.A.).
[29]
Third, the
principal applicant argues that the Board’s reasons do not support a finding of
complicity. With respect to the Board’s finding that the applicant had said he
did not leave because he did not want to leave his job (tribunal record, page
6), the principal applicant points out that this was not the entirety of his
evidence. He had also explained that he had sworn an oath to maintain the rule
of law and to safeguard human rights and that he saw it as his duty to stay on
the force and bring the perpetrators to justice. Until he felt that his own
life was in danger, he had always believed that he could continue to do his
duties. He asserts that the Board did not consider this explanation
(Applicant’s record at p. 36, lines 231-232 (PIF); Applicant’s record at p.
127). Instead, the Board drew the erroneous conclusion that he left when he
received his pension (tribunal record, page 7). In this regard, the principal
applicant points out that by the time he left the police force, he had been
eligible for his pension for several years. He argues that his reasons for
staying on the police force demonstrate an evident lack of complicity and that
the Board failed to even turn its mind to this issue.
[30]
Fourth,
the principal applicant also notes that the Board has focused entirely on his
knowledge of the crimes being committed and his failure to leave the force
earlier. The principal applicant highlights that although the fact that a
claimant has a high rank within an organization that commits crimes against
humanity may make the case for a finding of complicity stronger, the analysis
cannot end there. At bottom, complicity “rests…on the existence of a shared
common purpose” with the perpetrators: Ramirez, above, at para. 18. The
principal applicant argues that the evidence overwhelmingly indicates that the
applicant did not have a shared common purpose. He points out that he had
provided evidence that he attempted to stop the atrocities and eventually
resigned his post (applicant’s record, pages 89-90).
[31]
The Board
must be satisfied that there are “serious reasons for considering” that a
claimant should be excluded from claiming refugee status. In practice, this
means that the Board must be satisfied that the evidence demonstrates
“something more than suspicion or conjecture, but something less than proof on
a balance of probabilities” (Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 at para.
18 (F.C.A.) [Sivakumar]). Indeed, this lower than usual standard of
proof reflects Canada’s and the international community’s resolve to ensure
that war criminals are denied safe havens (see also Torres Rubianes v. Canada (Minister of Citizenship and
Immigration),
2006 FC 1140 at para. 3 [Torres Rubianes]).
[32]
It is
clear from the reasons of the Board that it was “of the opinion that if the
principal claimant did not obey as he was instructed in order to commit crimes
against humanity, he would have been dealt with and dismissed from his duties
as the regime has been doing” (tribunal record, page 10). The Board further
stated that it found “the documentary evidence quite specific and clear about
crimes against humanity for which there would be serious reasons for
considering the principal claimant has committed or been complicit in”
(tribunal record, page 10).
[33]
In its
decision, the Board notes that the Amnesty International reports
that human rights violations are primarily committed by the Zimbabwe security
forces (which includes the civil and military police and the CIO), “which
operate with the consent and acquiescence of the state and are supported by the
state with resources and public encouragement”. Furthermore, the U.S.
Department of State Report indicates that the Zimbabwean government provided
material support to war veterans, who occupied commercial farms and in some
cases killed, tortured, beat and abused farm owners (the land grab). Security
forces also tortured, beat and abused persons. Indeed, according to the
documentary evidence, in some cases, the army and the police provided
transportation and other logistical support. There is evidence of the police
firing at crowds of demonstrators during food riots. There is also evidence of
persons being killed and tortured while in police detention. The documentary
evidence shows that “police force is integral to the two deadly policies of the
Mugabe Government [to] harass, intimidate and if necessary, kill white farmers
if they resist giving up their land.”
[34]
Referring
to Sivakumar, the Board concluded that “[t]hese crimes against humanity
are perpetuated in a widespread and systematic way” (tribunal record at p. 12).
The Board then concluded on a balance of probabilities that the “principal
claimant was a member of Zimbabwe Police Force; that the same police force
along with other Security Forces perpetuate crimes against humanity in a
widespread and systematic fashion; that the claimant was deployed to carry
out such crime (sic) and that he indeed engaged in acts of torture”
(tribunal record at p. 13) [Emphasis added].
[35]
The
principal applicant does not dispute the fact that the Zimbabwe police have engaged in crimes against
humanity, or that the principal applicant was a member of the police force for
28 years. However, the principal applicant disputes the assumption made by the
Board that he personally committed such crimes.
[36]
It is
crucial that in making a decision to exclude under Article 1F(a), the Board
provide findings of fact as to specific crimes against humanity that a
particular claimant is alleged to have committed. As was noted by the Federal
Court of Appeal in Sivakumar:
The importance of providing findings of
fact as to specific crimes against humanity which the refugee claimant is
alleged to have committed cannot be underestimated in a case such as this where
the Refugee Division determined that the claimant has a well-founded fear of
persecution at the hands of the Sri Lankan government. For example, the Amnesty
International Report of 1989 indicates that the Sri Lankan government is
responsible for arbitrary arrest and detention without charge or trial,
"disappearances", torture, death in custody, and extrajudicial
killings. Given the seriousness of the possible consequences of the denial of
the appellant's claim on the basis of section F(a) of Article 1 of the
Convention to the appellant and the relatively low standard of proof required
of the Minister, it is crucial that the Refugee Division set out in its
reasons those crimes against humanity for which there are serious reasons to
consider that a claimant has committed them. In failing to make the
required findings of fact, I believe that the Refugee Division can be said to
have made an error of law [Emphasis added].
[37]
In the
present case, there is nothing in the reasons that outlines the specific nature
of the acts that the applicant is stated to have committed. It was simply not
enough for the Board to have serious reasons for considering that the principal
applicant had committed some kind of crimes against humanity in light of his
role or position with the police. If the Board’s analysis had ended here, the
decision would have had to have been quashed. However, it did not however end
there.
[38]
The
Board’s analysis focused primarily on complicity. It must be remembered that once
the test for complicity is met, exclusion applies even if the specific acts
committed by a claimant himself are not crimes against humanity: Harb,
above, at para. 11. Furthermore, the Court may uphold the decision of the
Refugee Division to exclude, despite the errors committed by the Board, if
"on the basis of the correct approach, no properly instructed tribunal
could have come to a different conclusion": Ramirez, above, at
para. 32; Sivakumar, above, at para. 34.
[39]
Since the
Board did not find that the Zimbabwean police force was an organization with a
“limited, brutal purpose”, the mere fact that the principal applicant was a
police officer was not sufficient to demonstrate complicity in war crimes: Ardila
v. Canada (Minister of Citizenship and Immigration), 2005 FC 1518 [Ardila];
Valère, above, at para. 21. Evidence of knowing participation is
therefore required. A person is complicit if this person contributes directly
or indirectly to this organization or makes these activities possible while
being aware of the activities of the organization: Bazargan v. Canada (Minister of Citizenship and
Immigration)
(1996), 205 N.R. 282 at para. 11 (F.C.A); Sumaida v. Canada (Minister of Citizenship and
Immigration),
[2000] 3 F.C. 66 at paras. 31-32 (F.C.A); Harb, above, at para. 11 (F.C.A.).
[40]
Even
though a claimant has not personally perpetrated the acts himself or herself,
the tolerance of such crimes is sufficient to be held liable (Fabela v. Canada (Minister of Citizenship and
Immigration),
2005 FC 1028 at para. 19). In Sivakumar, the complicity of a person who
can be characterized as "a leader" of the organization guilty of
international crimes was considered by Justice Linden in these terms at pages
440 and 442:
Bearing in mind that each case must be decided
on its facts, the closer one is to being a leader rather than an ordinary
member, the more likely it is that an inference will be drawn that one knew of
the crime and shared the organization's purpose in committing that crime. Thus,
remaining in an organization in a leadership position with knowledge that the
organization was responsible for crimes against humanity may constitute
complicity.
... [T]he closer one is to a position of
leadership or command within an organization, the easier it will be to draw an
inference of awareness of the crimes and participation in the plan to commit
the crimes.
[41]
Similarly,
as highlighted in Baqri v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1096 at para. 28
“[a] leadership position, while not necessarily justifying a conclusion of
complicity, may support the inference of a knowing participation in the
organization's plan and purpose to commit the international crimes”. As noted
by the applicant however, this issue is not determinative.
[42]
Madam
Justice Reed’s synthesis of the principles presented in the cases of Ramirez,
Sivakumar, and Moreno in Penate v. Canada (Minister of Employment and
Immigration),
[1994] 2 F.C. 79 at 84-85 (F.C.T.D.) also offers useful guidance on this
point:
The Ramirez, Moreno, and Sivakumar cases
all deal with the degree or type of participation which will constitute
complicity. Those cases have established that mere membership in an
organization which from time to time commits international offences is not
normally sufficient to bring one into the category of an accomplice. At the
same time, if the organization is principally directed to a limited, brutal
purpose, such as a secret police activity, mere membership may indeed meet the
requirements of personal and knowing participation. The cases also establish
that mere presence at the scene of an offence, for example, as a bystander with
no intrinsic connection with the persecuting group will not amount to personal
involvement. Physical presence together with other factors may however qualify
as a personal and knowing participation.
As I understand the jurisprudence, it is that a
person who is a member of the persecuting group and who has knowledge that activities
are being committed by the group and who neither takes steps to prevent them
from occurring (if he has the power to do so) nor disengages himself from the
group at the earliest opportunity (consistent with safety for himself) but who
lends his active support to the group will be considered to be an accomplice. A
shared common purpose will be considered to exist. I note that the
situation envisaged by this jurisprudence is not one in which isolated
incidents of international offences have occurred but where the commission of
such offences is a continuous and regular part of the operation [Emphasis
added].
[43]
This
statement has been followed more recently (see for example: Zazai v. Canada (Minister of Citizenship and
Immigration),
2004 FC 1356 at para. 28, aff’d 2005 FCA 303; Kasturiarachchi, above,
at para. 16.
[44]
That being
said, it is clear from the reasons of the Board that all six factors identified
by the Federal Court of Appeal in Sivakumar for determining that there
are “serious reasons to believe” that an individual has been complicit in
crimes against humanity and thus has the requisite mens rea are present.
Therefore, the Board’s decision to exclude the principal applicant on the
ground of complicity is reasonable in the present circumstances.
[45]
First, with respect
to the
nature of the organization, the Zimbabwean police force committed crimes
against humanity in a widespread and systematic fashion and multiple examples
were referenced by the Board (tribunal record, pages 7, 10-12). Indeed, the Board
found that the documentary evidence was “quite specific and clear” that this
organization had committed crimes against humanity during the 28 years the
applicant had served (tribunal record, page 10).
[46]
Second, as to the method of
recruitment, the principal applicant joined the police force voluntarily in
1974, committing to 25 years of service. This ended in June 1999. The principal
applicant voluntarily stayed on for another three years.
[47]
Third,
with respect to his position and rank in the organization, the principal
applicant held progressively senior positions and responsibilities throughout
his career, as evidenced by the information set out in his PIF. Indeed, the
principal applicant does not dispute that he was a senior officer, whatever
title he had. Accordingly, it was not patently unreasonable for the Board to
infer from this information that the principal applicant had received a number
of promotions and had enjoyed great mobility throughout his career.
[48]
Fourth,
as to the length of time he spent in the organization, the principal applicant
was a police officer for 28 years. Therefore, it was not patently unreasonable
for the Board to find that such a length of time does not preclude an inference
of knowing participation and shared common knowledge. The respondent pointed
out that the principal applicant in fact admitted to knowing that human rights
abuses were being perpetrated by fellow officers (Bedoya v. Canada (Minister
of Citizenship and Immigration), 2005 FC 1092 at para. 25 [Bedoya]).
[49]
Fifth,
as to whether there was an opportunity to leave, the principal applicant does
not dispute that he only resigned from the police in 2003, after he was
allegedly threatened by a superior. The principal applicant never indicated he
was not permitted to leave and he testified he was never tempted to leave before
2002, as he did not feel that he was in danger until then (tribunal record,
pages 356-8, 405). The fact he was not dismissed also suggests he was complicit
(tribunal record, pages 8, 10, 115). Further, given that the principal
applicant had allegedly been thwarted from doing his job for years, it was not
patently unreasonable for the Board to draw an adverse inference from the
principal applicant’s failure to leave the police force sooner (Torres Rubianes,
above, at para 18; Bedoya, above, at para. 26).
[50]
Sixth,
with respect to his knowledge of the organization’s atrocities, the principal
applicant admitted to knowing that the CIO and the police were supporting the
illegal land grabs and that they were harassing, intimidating, torturing and
killing farmers, opposition party members and civilians. He held senior
positions for the last ten years of his employment (tribunal record, pages 31,
360). In this regard, a simple denial of common purpose, even if credible,
“cannot suffice to negate the presence of common purpose” (Harb, above,
at para. 27). A claimant’s actions can be more revealing. It is otherwise too
simple to say that one did not share the same purpose and attempt to distance
oneself from the actions of the offending organization (see also Shakarabi
v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. 444 at
para. 25; Ali v. Canada (Solicitor General), 2005 FC 1306 at para. 2).
[51]
This
brings us to examine the legality of the Board’s decision with respect to the
claim made by the female applicant.
Claim of Female Applicant
[52]
The female
applicant asserts that the Board’s reasons for rejecting her claim are
insufficient. She had explained to the Board that she had returned to Zimbabwe to be with her children, and
because she had hoped that after five months, the situation had improved. This
explanation was reasonable and could not be arbitrarily dismissed by the Board.
[53]
The female
applicant further asserts that while a lack of subjective fear may be relevant
to a claim under section 96 of the IRPA, it is not relevant under section 97 of
same, and the Board is in error if it rejects a claim on this basis (Shah v.
Canada (Minister of Citizenship and Immigration), 2003 FC 1121 at para. 16;
Ghasemian v. Canada (Minister of Citizenship and Immigration), 2003 FC
1266 at paras. 18-19).
[54]
These
arguments cannot succeed in the present case.
[55]
The Board
had already found that the principal applicant’s claim that he was being
targeted by the CIO or Zanu-PF was implausible. That finding was not patently
unreasonable.
[56]
Subjective
fear is certainly a relevant factor to consider in a section 97 analysis. While
it may not be determinative, subjective fear relates to the personalized risk
and the basis for holding that objectively, such a risk exists. In light of the
fact that the female applicant’s claim was based entirely on the fear of being
targeted in light of the activities of her husband, which were not considered
plausible, the Board properly conducted its analysis (Mengistu v. Canada
(Minister of Citizenship and Immigration), 2004 FC 901 at para. 16).
[57]
It was
also open to the Board to reject the explanations of the female applicant.
[58]
Moreover,
the Board was entitled to draw an adverse inference from the fact that the
applicant re-availed herself of the protection of Zimbabwe. If she had truly feared for her life,
she would not have returned: Shaikh v. Canada (Minister of Citizenship and
Immigration),
2005 FC 74 at paras. 62-63; Bogus v. Canada (Minister of Employment and
Immigration), [1993] 71 F.T.R. 260, aff’d [1996] F.C.J. No. 1220 (F.C.A.)(QL);
Ali v. Canada (Minister of Citizenship and
Immigration),
[1996] F.C.J. No. 558 at para. 13 (F.C.T.D)(QL).
Psychological Report
[59]
I have
also considered the applicants’ allegation that the Board failed to consider
the psychological report that confirms that the principal applicant suffered
from post-traumatic stress disorder as a result of his persecution in Zimbabwe. They contend that this
report supports their story. The applicants raised this issue almost as a side
issue. In this regard, the applicants point out that although the Board does
not have an obligation to refer to every piece of evidence, where the evidence
is relevant, failure to refer to it may lead the Court to infer that the panel
ignored the evidence: Cepeda-Gutierrez v. Canada (Minister of Citizenship
and Immigration), [1998] F.C.J. No. 1425 (F.C.T.D.) at paras. 27-28; Florea
v. Canada (Minister of Employment and
Immigration),
[1993] F.C.J. No. 598 (F.C.A.); Bains v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 497
(F.C.T.D.).
[60]
The
psychological report merely concludes that the principal applicant suffers from
post-traumatic stress disorder as a result of his past experiences. This report
cannot be used in this case as evidence to corroborate the allegations made by
the applicants with respect to their fear of persecution. Although there is no
mention made of it in the Board’s reasons, in view of the negative credibility
findings made by the Board, which are being upheld by the Court, the alleged
omission does not constitute a reviewable error in the present case.
Conclusion
[61]
For the
reasons mentioned above, the present judicial review application must fail.
No question of general importance has been raised by counsel and none is
raised in this case.
ORDER
THIS COURT ORDERS that the application for judicial
review be dismissed. No question is certified.
“Luc
Martineau”
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