Date: 20070207
Docket: IMM-1695-06
Citation: 2007 FC 141
Ottawa, Ontario, February 7, 2007
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
TAWANDA JERALD NYAMUKONDIWA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] Mr.
Nyamukondiwa is a 22 year-old citizen of Zimbabwe who claims refugee
protection, stating that he is a member of the Movement for Democratic Change
(MDC) and that he fears persecution at the hands of supporters of the Zimbabwe
African National Union-Patriotic Front (ZANU-PF). The Refugee Protection
Division of the Immigration and Refugee Board (Board) heard Mr. Nyamukondiwa’s
claim and dismissed it in reasons that contain a number of factual errors.
[2] First,
the Board did not believe Mr. Nyamukondiwa’s testimony that he had been
severely beaten and yet “was told to get some over the counter medication at
the clinic”. In fact, Mr. Nyamukondiwa stated in his Personal Information
Form (PIF) that:
Feeling continuous bodily pain, I
went to seek accommodation from one of my High School classmates who took me to
a clinic. At the clinic they told me to obtain a report from the Police before
treatment. Knowing that the Police in most cases support members of the ZANU
(PF) youths as regards the way they treat members of the opposition, I felt it
pointless to go to them because instead of helping me they would blame me for
joining the opposition Party. My friend then went to buy some medicine over
the counter in-order to relieve me from pain.
[3] Additionally,
Mr. Nyamukondiwa testified before the Board that:
PRESIDING MEMBER: Did
you get any medical help?
CLAIMANT: Yes,
from over the counter because when I went to the hospital they told [me] that
they needed a police report and since my father experienced this same situation
of the [ZANU-PF] beating him, he went to the police but the police denied him a
police report because he is an MDC supporter. And the police and the [ZANU-PF]
work together so they didn’t give him a police report so I found it pointless
to go to the police and get a police report because I thought that they were
probably going to say the same thing or maybe make fun of me why I joined the
MDC. So I didn’t get – go to a medical facility to get attention.
At no time did Mr. Nyamukondiwa say
he was told to “get some over the counter medicine”.
[4] Second,
the Board found that because Mr. Nyamukondiwa could enter and leave Zimbabwe
with ease he did not have the profile of someone who the state considers to be
dangerous. However, the state was not Mr. Nyamukondiwa’s agent of
persecution. Mr. Nyamukondiwa feared young ZANU-PF supporters.
[5] Third,
the Board did not believe Mr. Nyamukondiwa’s testimony because it found that
after the beating his friends and relatives refused to shelter him and Mr.
Nyamukondiwa was very vague about where he spent the two weeks that followed
the beating. However, Mr. Nyamukondiwa stated in his PIF and testified
orally that not all of his friends and relatives refused to take him in and
after staying with high school friends he moved from relative to relative. I
am unable to ascertain what testimony the Board characterized to be vague, as a
review of the transcript shows Mr. Nyamukondiwa answered all of the questions
put to him and the Board did not seek further clarification on this point.
[6] Fourth,
the Board found it to be implausible if the “Zanu-PF gang” was looking for Mr. Nyamukondiwa
that its members would not find him given that Mr. Nyamukondiwa did not have
too many places in which to hide. The basis in the evidence for this inference
is unclear.
[7] Finally,
the Board found that Mr. Nyamukondiwa “provided no evidence that [ZANU-PF] had
come looking for him at his house”. However, Mr. Nyamukondiwa testified that
the tenants who lived at his former residence told him that ZANU-PF youths had
come looking for him there.
[8] These
errors are significant and were fundamental to the Board’s negative credibility
finding. They show that in crucial respects the Board made its findings of
fact without regard to the evidence before it. As such those findings are
patently unreasonable. I am left with little confidence in the soundness of
the Board’s other conclusions. For this reason, the application for judicial
review will be allowed.
[9] Counsel
posed no question for certification and I agree that no question arises on this
record.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is allowed and the
decision of the Refugee Protection Division dated March 2, 2006 is hereby set
aside.
2. This matter is remitted for a redetermination by a differently
constituted panel of the Refugee Protection Division.
3. Due to the many errors contained therein, the reasons given by
the Refugee Protection Division in support of its March 2, 2006 decision are
not to be provided to the panel that hears the redetermination of this claim.
“Eleanor R. Dawson”
FEDERAL COURT
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: IMM-1695-06
STYLE
OF CAUSE: TAWANDA
JERALD NYAMUKONDIWA, Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION, Respondent
PLACE OF HEARING: TORONTO,
ONTARIO
DATE OF HEARING: JANUARY 30, 2007
REASONS FOR JUDGMENT
AND JUDGMENT: DAWSON, J.
DATED: FEBRUARY 7, 2007
APPEARANCES:
JIDE OLADEJO FOR
THE APPLICANT
MARGHERITA BRACCIO FOR
THE RESPONDENT
SOLICITORS OF RECORD:
JIDE OLADEJO FOR
THE APPLICANT
BARRISTER & SOLICITOR
TORONTO, ONTARIO
JOHN H. SIMS, Q.C. FOR
THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
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