Date: 20030904
Docket: IMM-5884-01
Citation: 2003 FC 1024
Ottawa (Ontario), September 4, 2003
Present: The Honourable Mr. Justice Blais
BETWEEN:
CLAUDINE MOYO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board [the Board] dated November 29, 2001, wherein it determined that Claudine Moyo [the Applicant] was not a Convention refugee.
FACTS
[2] The Applicant is a 38-year old teacher from Zimbabwe. She arrived in Canada on April 13, 2001 and claimed refugee status the same day. The Applicant's claim was based on an incident that took place in Zimbabwe on March 19, 2001, in which she and other teachers were targeted by Zimbabwean "war veterans" who abused and humiliated them. The Applicant, who held a Movement for Democratic Change [MDC] membership card and t-shirt, was told by the veteran to support the Zanu P.F. party and to denounce the MDC. They promised to come back to verify that this had occurred. The Applicant did not return to her teaching post, but left the country and travelled to Canada the following month.
ISSUES
[3] 1. Did the Board base its decision on erroneous findings of fact made in a perverse or capricious manner or without regard to the material before it in not finding the Applicant to be credible?
2. Did the Board err in concluding that mere membership in the MDC was insufficient to meet the Convention criteria of political opinion?
3. Did the Board err in finding that the Applicant would not face more than a "mere possibility" of serious harm?
ANALYSIS
1. Did the Board base its decision on erroneous findings of fact made in a perverse or capricious manner or without regard to the material before it in not finding the Applicant to be credible?
[4] The standard of review of findings of credibility is patent unreasonableness: Aguebor v. Minister of Employment & Immigration, (1983) 160 N.R. 315. Thus, this Court cannot interfere with credibility findings unless they were patently unreasonable or made in a perverse or capricious manner or without regard to the evidence before it.
[5] The Board held that the Applicant's failure to mention her MDC membership card and her failure to recall the date she received her teacher's certificate by fax cast doubt on her credibility generally. The Applicant submits that these omissions may be explained as the result of misunderstandings of the questions posed and, furthermore, that they relate to minor details. It may be that the discrepancy concerning these minor details does not warrant making a general adverse credibility finding.
[6] The Board made further adverse credibility findings concerning the number of teachers that were involved in the incident with the veterans. The Applicant testified that there were 17 teachers who were harassed, but in her Personal Information Form [PIF] stated "...by that time, I was joined by two other teachers who were also being harassed". The Applicant points out that when the qualifying words "by that time", indicating a later time period, are considered, her PIF appears to be consistent with her testimony.
[7] An overall reading of the Applicant's PIF and an examination of the hearing transcript reveal a minor inconsistency. According to the PIF, after the Applicant's MDC t-shirt was found, she was ordered to do "toyi-toyi" (forced jumping) and spin around while denouncing the MDC President. At this time, only the Applicant and two other teachers were involved. However, in the hearing transcript, she states that all 17 teachers were ordered to do toyi-toyi and spin around.
[8] A reading of the transcript reveals that the Applicant responded to the questions and was straight forward; I cannot understand how such a lack of credibility finding could be reached, pursuant to that testimony.
[9] Similarly, the Applicant stated in her PIF that all the teachers denied being MDC members when the war veterans arrived. However, in her testimony, the Applicant stated that all the teachers professed to be Zanu P.F. members.
[10] Again, a review of the transcript failed to identify a contradiction. I do not think that an adverse credibility finding was appropriate in this particular case.
[11] The Board considered it implausible that the Applicant would leave her teaching position without sending a letter of resignation or receiving a letter of termination from the school. The Board held that the lack of evidence concerning her departure from the school was central to establishing her claim, and stated that this further impugned her credibility. This finding is not patently unreasonable, considering the relevance of the school-yard incident to the Applicant's claim.
[12] While some adverse credibility findings of the Board relate to inconsequential details, as I mentioned above, the adverse credibility findings made in relation to the incident of persecution as described by the Applicant cannot be said to be patently unreasonable, nor made in a perverse or capricious manner, nor without regard to the material before it.
2. Did the Board err in concluding that mere membership in the MDC was insufficient to meet the Convention criteria of political opinion?
[13] In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689,
the Supreme Court of Canada held that whether a claimant fears persecution on the basis of his or hers "political opinion" must be analyzed from the perspective of the persecutor, stating at para. 83:
Second, the political opinion ascribed to the claimant and for which he or she fears persecution need not necessarily conform to the claimant's true beliefs. The examination of the circumstances should be approached from the perspective of the persecutor, since that is the perspective that is determinative in inciting the persecution. The political opinion that lies at the root of the persecution, therefore, need not necessarily be correctly attributed to the claimant. Similar considerations would seem to apply to other bases of persecution.
[emphasis added]
[14] In the case at bar, the veterans who confronted the group of teachers appeared to be of the view that the teachers were supporters of the MDC. This view was likely bolstered by the fact that the war veterans discovered the Applicant's MDC t-shirt. Clearly, the Applicant and the other teachers were perceived by the veterans to be MDC supporters, regardless of the limited extent of political activity engaged in by the Applicant. Therefore, from the perspective of the persecutor, the Applicant was a supporter or member of the MDC and, as such, she meets the Convention grounds for political opinion.
[15] At page 10 of the Application Record, the Board states: "[I]n the present case, the claimant had never participated in MDC activities. Her mere membership in the MDC is insufficient to meet the criteria of a Convention refugee."
[16] The standard of review for questions of mixed fact and law is reasonableness simpliciter: Jayesekara v. Canada (Minister of Citizenship and Immigration), (2001) 17 Imm. L.R. (3d) 266, [2001] F.C.J. No. 1393. The Board's finding that the basis for the Applicant's fear did not meet the legal definition of "political opinion" in the circumstances of this case was clearly unreasonable, since the law clearly states that the Convention ground is to be determined from the perspective of the persecutor. However, this is not a material error in view of the negative outcomes on the first and third (below) issues.
3. Did the Board err in finding that the Applicant would not face more than a "mere possibility" of serious harm should she return to Zimbabwe?
[17] In Adjei v. Canada (Minister of Employment and Immigration) [1989] 2 F.C. 680, MacGuigan J.A. commented on the required level of risk of future persecution, at para. 8:
What is evidently indicated by phrases such as "good grounds" or "reasonable chance" is, on the one hand, that there need not be more than a 50% chance (i.e., a probability), and on the other hand that there must be more than a minimal possibility. We believe this can also be expressed as a "reasonable" or even a "serious possibility", as opposed to a mere possibility.
[emphasis added]
[18] This is a question of fact or mixed fact and law: does the Applicant face a "reasonable possibility" of harm should she return to Zimbabwe? (question of fact) or does the Applicant meet the legal grounds for objective fear of persecution? (question of mixed fact and law). The standard of review is patent unreasonableness or reasonableness simpliciter.
[19] The Respondent submits that the nature of persecution is that it is repeated or persistent. In Rajudeen v. Canada (Minister of Employment and Immigration), (1984) 55 N.R. 129, [1984] F.C.J. No. 601 [Rajudeen], the Federal Court of Appeal defined "persecution" with the aid of dictionary definitions:
The first question to be answered is whether the applicant had a fear of persecution. The definition of Convention Refugee in the Immigration Act does not include a definition of "persecution". Accordingly, ordinary dictionary definitions may be considered. The Living Webster Encyclopedic Dictionary defines "persecute" as:
To harass or afflict with repeated acts of cruelty or annoyance; to afflict persistently, to afflict or punish because of particular opinions or adherence to a particular creed or mode of worship.
The Shorter Oxford English Dictionary contains inter alia, the following definitions of "persecution':
A particular course or period of systematic infliction of punishment directed against those holding a particular (religious belief); persistent injury or annoyance from any source.
[emphasis added]
[20] In addition, the Respondent submits that the Board is best-positioned to evaluate whether the Applicant's treatment fits the legal definition of persecution, citing the Supreme Court of Canada's decision in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 at para. 47:
... The expertise of the Board is in accurately evaluating whether the criteria for refugee status have been met and, in particular, assessing the nature of the risk of persecution faced by the applicant if returned to his or her country of origin. ...
[emphasis added]
[21] A refugee claimant need not show evidence of past persecution in order to establish a "well-founded fear of persecution" [Salibian v. Canada (Minister of Employment & Immigration), [1990] 3 F.C. 250]. However, evidence of past persecution is an effective way to show future persecution [Rajudeen, supra].
[22] The evidence of the Applicant revealed a single incident of harassment, abuse and humiliation by the war veterans in Zimbabwe. The documentary evidence, as noted by the Board, establishes "post-election violence and political intimidation against MDC activists".
[23] The Board determined that the Applicant's treatment did not establish past persecution, and that there existed only a "mere possibility" that she would be persecuted once she returned to Zimbabwe. In view of the evidence presented, this finding is not unreasonable, and there is no basis for the intervention of this Court.
[24] Although the Board's finding that the Applicant did not meet the Convention ground for "political opinion" was unreasonable, the error is not material, since the Board ultimately held that she was not credible and that she did not run the risk of persecution should she return to Zimbabwe.
O R D E R
THIS COURT ORDERS THAT:
[1] This application for judicial review is dismissed.
[2] No question for certification.
Pierre Blais
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5884-01
STYLE OF CAUSE: CLAUDINE MOYO v. MCI
PLACE OF HEARING: Montreal
DATE OF HEARING: August 7th, 2003
REASONS FOR ORDER AND ORDER : Mr. Justice Blais
APPEARANCES:
Me Claudette Menghile FOR APPLICANT
Me Andrea Shahin FOR RESPONDENT
SOLICITORS OF RECORD:
Me Claudette Menghile FOR APPLICANT
10, St. Jacques Ouest
Montréal, Québec
H2Y 1L3
Ministère fédéral de la Justice FOR RESPONDENT
Complexe Guy-Favreau
200, boul. René-Lévesque ouest
Tour Est, 5e étage
Montréal, Québec
H2Z 1X4