Ottawa, Ontario, February 16, 2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
and
AND IMMIGRATION
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 1, 2006, which determined that the applicant was neither a Convention refugee nor a person in need of protection.
[2] The applicant requests that the decision be set aside and the matter remitted for redetermination by a differently constituted panel of the Board.
Background
[3] The applicant, Tichamuka Jean Musiyiwa, is a thirty-six year old citizen of Zimbabwe. She alleged having a fear of persecution due to her political opinion and as a failed asylum seeker. The applicant set out the circumstances leading to her claim for protection in the narrative portion of her Personal Information Form (PIF).
[4] The applicant joined the Movement for Democratic Change (MDC) in January 2000, after being introduced to the party by a friend. The MDC was the main opposition party in Zimbabwe. The applicant obtained an MDC membership card and attended party meetings. She explained that MDC members were routinely arrested, beaten, and tortured by the government and ruling party (ZANU-PF) for their involvement in the opposition. The applicant also claimed that ZANU-PF actively sought out individuals who had returned to Zimbabwe from abroad.
[5] The applicant testified that she had not been harassed for her involvement with the MDC until she was arrested for participating at a party rally on April 17, 2004. There were about thirty other women at the rally and they scattered when the police intervened. The applicant and three other women were detained for three days and were generally ignored by their captors. They were then released without charges. Two of her fellow activists went missing after being released, and the applicant never found out what happened to them. Their disappearance caused her to become fearful and motivated her to escape from Zimbabwe.
[6] She applied for a one-year visa to the United States on May 6, 2004, and left Zimbabwe on May 26, 2004. The applicant arrived in the United States, via Germany, in July 2004. She left her two young children in Zimbabwe in the care of her parents and ex-husband. The applicant explained that she wished to help her children eventually flee Zimbabwe. The applicant lived in the United States from July 2004 until September 2005, and explained that she did not seek asylum while there as she could not afford the legal fees quoted. The applicant arrived in Canada on September 28, 2005 and immediately claimed refugee status. The refugee hearing was held on February 22, 2006, and her claim was refused by decision dated March 1, 2006. This is the judicial review of the Board’s decision.
Board’s Reasons
[7] The Board determined that the applicant was not a Convention refugee, as she did not have a well-founded fear of persecution on a Convention ground. The Board also found that she was not a person in need of protection. The determinative issue was the well-foundedness of her fear. The Board also considered her failure to claim asylum in the United States. The claimant failed to demonstrate on a balance of probabilities that she faced a serious possibility of persecution if she returned to Zimbabwe. The applicant testified in a forthright manner and stated that she feared: (1) the unstable situation in Zimbabwe; (2) being recognized as a former detainee; (3) for her safety after being informed that her colleagues went missing; and (4) being detained and interrogated as a failed asylum seeker.
[8] The Board was not satisfied that the applicant had demonstrated that she faced a serious possibility of persecution if returned to Zimbabwe. Her subjective fear was not objectively supported. Her explanations did not satisfy the Board that there was a serious possibility that she would come to the attention of the authorities if she returned to Zimbabwe. The police did not know her name and absent evidence regarding the disappearance of her colleagues, there was nothing to suggest that their disappearance was caused by the authorities. Even if there was evidence that the authorities were involved in their disappearance, the police did not have the applicant’s name and it was implausible that she would come to their attention if she returned.
[9] The Board found it speculative that the applicant faced a serious possibility of coming to the attention of the authorities as a failed refugee claimant. There was documentary evidence regarding the poor treatment of deportees from the United Kingdom which indicated that President Mugabe disliked Britain. Because of its peculiar factual context, the Board did not find that the article supported her fear of persecution as a failed refugee returning from Canada. The test set out in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, (1993) 103 D.L.R. (4th) 1, required that a refugee claimant’s subjective fear have an objective basis.
[10] The Board concluded that on a balance of probabilities, the applicant’s fear was grounded in the unstable socio-economic conditions in Zimbabwe. This fear was faced by others in Zimbabwe and was described in the documentary evidence. However, there was no serious possibility that the applicant would come to the attention of the authorities, and there was therefore no objective basis for her fear of persecution. The Board noted that mere possession of an MDC card did not constitute a well-founded fear of persecution. Also, there were many MDC supporters still living in Zimbabwe. The Board considered her delay in claiming refugee protection and found that her lack of effort to find a way to seek asylum in the United States was inconsistent with her subjective fear.
Issue
[11] The applicant submitted the following issue for determination:
Whether the Board proceeded on improper principles and based its decision on erroneous findings of fact made in a perverse or capricious manner without regard to the material before it and/or whether the Panel’s assessment of the totality of the evidence is patently unreasonable and thereby subject to review.
[12] I would rephrase the issue as follows:
Did the Board err in finding that the applicant did not have a well-founded fear of persecution?
Applicant’s Submissions
[13] The applicant submitted that where the Board bases its decision upon findings of fact wholly unsupported by the evidence, draws inferences that are unreasonable, misstates the facts, or ignores relevant evidence, its decision should be overturned. The applicant submitted that the Board engaged in a perverse assessment of the evidence and that its decision was based upon speculation and unwarranted inferences. It was submitted that the Board misconstrued the facts and did not provide her with a fair hearing. The applicant also submitted that the Board committed errors of law in assessing her claim.
[14] The Board focused upon whether the applicant would come to the attention of the authorities. It was submitted that the Board failed to appreciate that even if she did not come to the attention of the authorities, she would face persecution by other groups such as war veterans, the youth militia, or ZANU-PF members. The documentary evidence demonstrated that these groups were persecuting opposition members such as the applicant. The applicant submitted that the Board erred in finding that she was not an active MDC member. It was clear that she had attended meetings and was not an inactive member who might not be noticed by agents of persecution.
The Board relied upon the fact that there were MDC supporters in Zimbabwe in order to impugn the well-founded nature of her fear. It was submitted that this consideration was irrelevant and there was no evidence that MDC members were not facing persecution. The applicant submitted that some MDC members may have the courage to remain in Zimbabwe and face persecution longer than less daring people. It was submitted that there was evidence that all MDC members were at risk.
[15] The applicant submitted that the Board’s finding that she did not look for viable methods to claim asylum in the United States was patently unreasonable. It was submitted that this finding was premised upon an unsupported assumption that the applicant was knowledgeable about the availability of such information on the internet. The applicant submitted that the Board perversely rejected her valid explanation for failing to seek asylum earlier.
Respondent’s Submissions
[16] The respondent submitted that the Board’s determination that a refugee claimant’s fear of persecution was not well founded was a question of fact reviewable on the standard of patent unreasonableness (see Federal Courts Act, R.S.C. 1985, c. F-7, paragraph 18.1(4)(d)). It was submitted that the applicant failed to demonstrate that the Board’s finding in this regard was patently unreasonable.
[17] The respondent submitted that the Board’s use of the term “authorities” encompassed all agents of persecution. It was submitted that this inference may be drawn from the fact that the applicant’s PIF narrative and counsel’s submissions referred to these agents of persecution, as did the documentary evidence. Given that the Board is presumed to have considered all of the evidence before it, the respondent submitted that it was reasonable to presume that the term “authorities” referred to all agents of persecution in Zimbabwe (see Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (QL) (F.C.A.)). It was submitted that this interpretation found support within the Board’s reasons, which distinguish between the narrowly construed “police” and the broadly construed “authorities”.
[18] The respondent submitted that by the applicant’s own admission, her activities with the MDC were “nothing major”. It was submitted that she fit the profile of an ordinary MDC member, who did not face a serious risk of persecution. The respondent submitted that the applicant bore the onus of demonstrating a well-founded fear of persecution, not the Board (see Khan v. Canada (Minister of Citizenship and Immigration), 2006 FC 1183). It was submitted that the documentary evidence did not suggest that all MDC members faced a well-founded fear of persecution regardless of their profile. The applicant never experienced problems due to her MDC membership until her detainment, during which she was ignored and her name was not recorded. There was no evidence that anyone was searching for her in Zimbabwe. Therefore, her experience did not demonstrate that every MDC member faced a well-founded fear of persecution. In addition, she did not testify that she would be politically active if she returned to Zimbabwe.
[19] The respondent submitted that it was open to the Board to weigh the evidence and find that she did not have a well-founded fear of persecution on account of her political opinion. It was submitted that disagreements with the weighing of evidence did not afford a legal basis upon which the Court might intervene (see Brar v. Canada (Minister of Citizenship and Immigration), [1986] F.C.J. No. 346 (QL) (F.C.A.)).
[20] The respondent submitted that it was the applicant’s lack of initiative in failing to investigate the American asylum process by any means which was detrimental to her subjective fear. It was submitted that the applicant was attempting to reverse the onus of proof, in that she argued that the Board was required to prove that she was knowledgeable about the availability of this information. The respondent submitted that the applicant bore the onus of establishing that she was not knowledgeable in this regard, which she did not do. While the applicant’s affidavit indicated that she was not knowledgeable about the availability of such information, she did not testify to this effect. It was submitted that the Court should be loathe to consider fresh evidence, since this application for judicial review is not an appeal de novo (see Lubega v. Canada (Minister of Citizenship and Immigration) (2006), 147 A.C.W.S. (3d) 292, 2006 FC 303).
[21] The respondent submitted that the Board may disbelieve the credibility of an applicant’s claim where there has been delay in claiming refugee status (see Heer v. Canada (Minister of Employment and Immigration), [1988] F.C.J. No. 330 (QL) (F.C.A.)). It was submitted that the Board was entitled to reject her explanation for the delay, given her personal circumstances. The respondent submitted that the lack of evidence going to the subjective element of her claim was sufficient for it to fail. It was submitted that no different result could be reached on a rehearing, therefore the application should be dismissed.
Analysis and Decision
Standard of Review
[22] The standard of review applicable to the Board’s determination that the applicant’s fear of persecution was not objectively well-founded is that of patent unreasonableness (see Hasan v. Canada (Minister of Citizenship and Immigration) (2004), 134 A.C.W.S. (3d) 1063, 2004 FC 1537).
[23] Issue
Did the Board err in finding that the applicant did not have a well-founded fear of persecution?
The Board determined that on a balance of probabilities, the applicant’s fear of persecution was based upon deteriorating socio-economic conditions in Zimbabwe. The Board also found that on a balance of probabilities, there was no objective basis for her fear of persecution if she returned to Zimbabwe. In Ward above, the Supreme Court of Canada held that in order to establish a fear of persecution, refugee claimants must subjectively fear persecution, and this fear must be objectively well-founded.
[24] The Board found that the applicant was forthright in her testimony. It appears that she was a member of the MDC and had been detained following a rally in April 2004. The applicant became an MDC member in 2000, and had not experienced any problems until her detainment in April 2004. Although she owned a membership card, attended meetings, and participated in one rally, she described her involvement in the party as “nothing major”. The Board noted that there was no evidence that her colleagues had disappeared as a result of action by the authorities. In addition, the police did not record her name when she was released.
[25] The applicant submitted that the Board erred by failing to address her fear of other agents of persecution, including war veterans, the youth militia, and ZANU-PF members. I agree with the respondent that as demonstrated in its reasons, the Board’s use of the term “authorities” encompassed agents of persecution other than the police.
[26] The Board’s reasoning regarding the objective basis of the applicant’s claim was articulated in part as follows:
[. . .] While she may have a subjective fear, she has not demonstrated that there is an objective basis to this fear. None of her explanations satisfy me that a serious possibility exists that she would come to the attention of the authorities she claims to fear if she returned to Zimbabwe. By her own admission, the police did not even know her name from that single incident in April 2004. With respect to the two women that she heard were missing, absence any more concrete evidence than she was able to provide, there is nothing to suggest on a balance of probabilities that their being missing is attributable to some action of the authorities…Further, by the claimant’s own testimony, she was not an active member of the MDC, other than her attending some meetings, and before April 2004, had no dealings with the police or the authorities.
…
In view of the foregoing analysis, I find on a balance of probabilities that the claimant’s fear is grounded in the unstable society and deteriorating social and economic conditions, about which the claimant is apprehensive should she return to Zimbabwe. It is aptly captured in the documentary evidence in articles such as the recent Amnesty International Report on Zimbabwe. However, I find on a balance of probabilities that there is no serious possibility that the claimant would come to the attention of the authorities, and I therefore find that there is no objective basis for the claimant’s fears that she would face persecution if she returned to Zimbabwe.
(Emphasis Added.)
[27] The Board appears to have considered the objective basis of the applicant’s claim from the perspective that it was unlikely that she would come to the attention of the authorities due to her detainment. In my view, the Board erred in considering the objective basis of her claim in this narrow context. The applicant also stated that she feared persecution for other reasons. The notes taken by the immigration officials indicated that the applicant feared persecution based on the following:
C. What are you afraid of if you returned to your country?
I’m afraid of the ruling party (ZANU-PF). I’m afraid of imprisonment & persecution. I was arrested because I was at a meting that was considered illegal to them (Movement for Democratic Change meeting). They held us for three days. There were some people that were taken away & never seen again. After this incident I planned to leave the country.
D. Whom are you afraid of if you returned to your country?
Police, youth army (ZANU-PF).
(Tribunal record at page 81)
[28] The documentary evidence includes the following statements about Zimbabwe at pages 117 and 118 of the tribunal record:
The perpetrators of torture, according to experts, include agents of Mugabe’s Zimbabwe African National Union-Patriotic Front (ZANU-PF) political party, police officials, agents of the Central Intelligence Organization, and, recently, members of the pro-Mugabe youth militia, who appear to have been schooled in torture methods.
. . .
Torture has been rampant since 1999 and has been used primarily against members and suspected members of the MDC, the main political party opposing Mugabe’s presidency. Commercial farm workers, journalists, and others have also fallen prey. Indeed, it has become an unbroken cycle, used by the regime to control populations and suppress opposition to Mugabe and to democratization.
. . .
Rape cases, which Reeler said could only be described as “political rape” are prevalent. The victims are typically women who belong to MDC, are married to MDC members, or are so suspected. Their attackers tell them that is why they are being raped. The prevalence of this is hard to document, however, because rape victims seldom come forward and report the assaults.
[29] The applicant was an MDC member and the Board did not address the objective basis of her claim as an MDC member. As the documentary evidence shows, MDC members were being persecuted. The Board ought to have considered the objected basis of her claim based on the fact that she was an MDC member. I am of the opinion that the Board committed a patently unreasonable error.
[30] As a result, I am of the opinion that the Board made a patently unreasonable error in finding that the applicant lacked an objective basis for her claim.
[31] I need not deal with the other points raised in argument.
[32] The application for judicial review is therefore allowed and the matter is referred to a different panel of the Board for redetermination.
[33] Neither party wished to submit a proposed serious question of general importance for my consideration for certification.
JUDGMENT
[34] 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.
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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FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1596-06
STYLE OF CAUSE: TICHAMUKA JEAN MUSIYIWA
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 8, 2007
APPEARANCES:
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Kingsley I. Jesuorobo
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Amina Riaz
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SOLICITORS OF RECORD:
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Kingsley I. Jesuorobo Toronto, Ontario
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John H. Sims, Q.C. Deputy Attorney General of Canada |
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