Washaya v. Canada (Citizenship and Immigration), 2007 FC 275

Date: 20070309

Docket: IMM-2335-06

Citation: 2007 FC 275

Ottawa, Ontario, March 9, 2007

PRESENT:     The Honourable Mr. Justice Phelan

BETWEEN:

TAURAI WASHAYA

FORTUNATE CHAPFIKA

Applicants

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR JUDGMENT AND JUDGMENT

[1]               At the request of counsel for the Respondent, consented to by the Applicant, the minor Applicant, Crystal Yemurai Washaya, was deleted from the style of cause. It was an administrative error to have her named in this matter as she is a U.S. citizen.

[2]               The Applicants are citizens of Zimbabwe. The male Applicant claimed political persecution as an opponent (or perceived opponent) of the Mugabe regime.

[3]               The central issue in the Board’s decision was credibility. There were two critical findings of fact that went directly to the Board’s credibility finding:

·                    the first was that the Applicant had participated in a student rally. The Board found that there was no credible or trustworthy evidence that he had been involved in a student rally.

·                    the second related to the existence of an arrest warrant in the Applicant’s name. The Board concluded that the document was not before it; that the Applicant should have obtained a copy or had an affidavit from his mother attesting to the warrant. From this lack of documents, the Board drew an adverse inference with respect to the Applicant’s credibility.

[4]               The Certified Tribunal Record shows that the Board had a police report which referred specifically to the existence of a warrant of arrest for the Applicant. The transcript of the hearing shows that both the Member and the RPO thought that the police report was the warrant. One can only speculate that in the midst of so many hearings, the Member simply forgot that this evidence was before him/her.

[5]               As to the Applicant’s attendance at a student rally, there was no basis for disbelieving him except due to the absence of an arrest warrant. The warrant is related to the student rally and therefore is germane to both factual findings and to the adverse inference drawn.

[6]               These factual findings are sufficiently infirmed that this judicial review must be granted. The Board’s decision is quashed and the matter is referred back to a new panel for a fresh determination.

JUDGMENT

            IT IS ORDERED THAT this application for judicial review is granted. The Board’s decision is quashed and the matter is referred back to a new panel for a fresh determination.

“Michael L. Phelan”

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          IMM-2335-06

STYLE OF CAUSE:                          TAURAI WASHAYA

                                                            FORTUNATE CHAPFIKA

                                                            and

                                                            THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                    Toronto, Ontario

DATE OF HEARING:                      March 6, 2007

REASONS FOR JUDGMENT

AND JUDGMENT:                          Phelan J.

DATED:                                             March 9, 2007

APPEARANCES:

SOLICITORS OF RECORD: