Docket: IMM-2244-02
Ottawa, Ontario, this 8th day of April, 2003
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
THEMBINKOSI BRI MXUMALO
Applicant
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 Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated April 16, 2002, wherein the applicant, Mr. Thembinkosi Bri Nxumalo, was refused the Convention refugee status.
[2] The applicant claimed refugee status by reason of his political opinions. He alleged to be a member of a union affiliated with the Zimbabwe Congress of Trade Union ("ZCTU") and that in September 1999, he joined the Movement for Democratic Change ("MDC"). He became active in the Ward 6 of the Bulawayo South Constituency, as a member of its Youth Committee. The applicant claimed that he worked on behalf of his party in the 2000 parliamentary elections and in the September 2001 municipal elections. He claimed that his problems started in August 2001.
[3] On August 20, 2001, the applicant was visited by three men who he suspected were secret agents for the government. They wanted the applicant to provide them with some information about the MDC party. On August 28, 2001, the same men came back and took the applicant to an office where he was allegedly detained and tortured during one day.
[4] When he was released the next day, the applicant fled to his friend's in Harare. He then left Zimbabwe on September 23, 2001.
[5] The Board concluded that the applicant's evidence overall "lacked credibility and trustworthiness". This was based on numerous inconsistencies between the applicant's testimony, Personal Information Form ("PIF"), and Point of Entry Notes, as well as on implausibilities in his story.
[6] The applicant alleged that the Board wrongly evaluated his credibility. He also claimed that his story is highly consistent with what is known about the situation in Zimbabwe today and that this objective situation was not considered by the Board. Finally, the applicant submitted that his removal would be in violation of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, and other international instruments.
[7] With regard to the applicant's credibility, I believe that the applicant is trying to get the Court to substitute its opinion to the one of the Board. As Justice Blanchard held in Hosseini v. Canada (M.C.I.), [2002] F.C.J. No. 509 (F.C.T.D.):
The assessment of the value of the applicant's explanations, like that of the other facts, is entirely within the jurisdiction of the Refugee Division, which also has recognized expertise in weighing the merits of testimony on the situation in various countries. This being so, I agree with the respondent's arguments, namely that the applicant could not simply repeat on judicial review an explanation already given to the specialized tribunal and dismissed by it. In Muthuthevar v. M.C.I., [1996] F.C.J. No. 207, on line: QL, Cullen J. was entirely of this opinion at para. 7 of this reasons:
...While the applicant seeks to "explain away" testimony that the Board found implausible, it must not be forgotten that these same explanations were before the Board and were not accepted as credible. The applicant has not directed to this Court evidence that was ignored or misconstrued, and in the absence of such a finding, the Board's conclusions on credibility must stand.
[8] For example, the applicant argued that the Board drew a negative conclusion from the answer given to Question 20 of the PIF. Question 20 reads "wanted by the police, military or any other authorities" and the applicant said that he was not wanted by the Zimbabwean state. He explained that the answer could be yes, he is wanted by the members of the state security agency, or it could be no because there were no formal accusations against him. He further stated that he was never in jail but that he was detained by the secret police.
[9] The applicant's arguments regarding the Board's findings on his credibility have not persuaded me that the conclusions were patently unreasonable. I did verify each finding on credibility and I was satisfied that supportive evidence existed for each one of them except for the last one.
[10] In respect of the applicant's allegation that the Board did not consider his case in relation to the actual situation in Zimbabwe, all I will say is that this Court not only concluded that the evidence related to a country is not sufficient to demonstrate a well-founded fear, but also that the objective and subjective components of the fear are absolutely necessary. If a refugee claim could be determined solely on documentary evidence relating to country conditions, then anyone could read a story in it and make it theirs.
[11] In any event, the Board admitted that the applicant had a "good grasp" of certain political events in Zimbabwe and in order to verify such knowledge, the Board must have compared it with the objective documentary evidence on Zimbabwe. Moreover, the Board concluded that the applicant's behaviour demonstrated a lack of subjective fear, therefore, since both subjective and objective fear are needed to demonstrate a well-founded fear, the determination of an objective fear in Zimbabwe was unnecessary.
[12] Regarding the applicant's third argument that his deportation would violate the Charter, this Court has addressed this issue before. It has confirmed on numerous occasions that the Board did not have the jurisdiction to apply the international instruments alleged by the applicant regarding his removal. In fact, the Court wrote that it was simply premature to invoke them at a stage where the only jurisdiction of the Board was to determined whether or not a claimant is a refugee according to the Convention [Sandhu v. Canada (M.C.I.) (2000), 258 N.R. 100 (C.A.), Barrera v. Canada (M.E.I.), [1993] 2 F.C. 3, Arica v. Canada (M.E.I.), [1995] F.C.J. No. 670, Kofitse v. Canada (M.C.I), [2002] F.C.J. No. 1168].
[13] After the hearing, the applicant was given 3 days to submit proposed questions for certification. The applicant argued that there is some confusion on the meaning of the word "wanted" in the former Question 20 of the Personal Information Form and that the tribunal often questions the credibility of refugee claimants because they have answered the port-of-entry notes that they are not being looked for by the police or the military when they have had a problem of political detention or political persecution in their country. He states that this reason for questioning credibility is mentioned in a great number of cases at the Immigration and Refugee Board.
[14] Alleging that given the inherent confusion between being "wanted" and being persecuted for political reasons, or between being in jail or being detained for political reasons, this is often raised as a point of credibility and used to attack the story of refugee claimants, the applicant submits the following questions:
Is the existence of a difference between the port-of-entry notes and the PIF on whether someone is wanted sufficient to make negative credibility findings when the applicant explains that he understood this to mean that he is sought after for criminal accusations?
Is the same type of finding valid when the applicant says he has not been in jail in his original statement, but also states afterwards that he was detained for political reasons?
[15] The respondent submits that the questions proposed by the applicant do not meet the criteria established by the Federal Court of Appeal in Canada (M.C.I.) v. Liyagnagamage (1994), 176 N.R. 4, in that they do not contemplate issues of broad significance or general application. It first argues that the applicant failed to submit any evidence in support of his allegation that the suggested questions are "often raised as a point of credibility and used to attack the story of refugee claimants."
[16] The respondent contends that the explanation given by the applicant that he thought the question meant "are you sought after for criminal accusations" clearly does not explain the inconsistency between the port-of-entry notes and the PIF. Logically, his explanation would have been more credible had the applicant answered the same way to the same question asked in the Port-of-entry notes and the PIF.
[17] The comments of Martineau J. in the recent decision Monteiro v. Canada (M.C.I.), [2002] F.C.J. No. 1720, clearly address the criteria in the Federal Court of Appeal decision in Liyanagamage, supra:
In Canada (Minister of Citizenship and Immigration) v. Liyanagamage (1994), 176 N.R. 4, the Federal Court of Appeal specified at paragraph 4 that a certified question must be one that "transcends the interests of the immediate parties to the litigation and contemplates issues of broad significance or general application [...] but it must also be one that is determinative of the appeal". Furthermore, the Court in Huynh v. Canada, [1995] 1 F.C. 633 (F.C.T.D.) (confirmed by [1996] 2 F.C. 976 (F.C.A.)) indicated that "[a] certified question is not about the case at bar; it seeks to clarify an undecided legal point of general importance". In the case at bar, the proposed questions are not determinative of the appeal. Moreover, the present record and the particular circumstances of this case would make it difficult, through an appeal, to clarify any undecided legal point of general importance. Accordingly, no question of general importance will be certified.
[18] In the present case, I agree with the respondent that the applicant did not support his arguments with any evidence. However, assuming to be true the applicant's allegations that the Board bases its credibility findings on the applicant's misinterpretation of the meaning of Question 20 in the PIF and of the similar question in the port-of-entre notes, I disagree with the respondent saying that these are not questions of general importance. I can see how someone could wonder what is the exact meaning of the question "Are you wanted by the police, or military or any other authorities in any country?". What is it exactly that the immigration officials want to know? Is the applicant fleeing justice because of a criminal offence he committed or is he fleeing the persecution he claims to suffer?
[19] For that matter I think it would be a question of general importance. Notwithstanding this determination, I find that the proposed questions would not be determinative of the appeal since the Board's decision is not solely based on that particular issue. The remainder of the findings would still stand and the decision would not be sent back for redetermination.
[20] For all the above reasons, I will dismiss this application without proposing any question for certification.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is dismissed and no question is certified.
"Simon Noël"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2244-02
STYLE OF CAUSE: THEMBINKOSI BRI NXUMALO v. MCI
PLACE OF HEARING: Montréal
DATE OF HEARING: March 18th,2003
REASONS FOR ORDER AND ORDER: THE HONOURABLE MR. JUSTICE SIMON NOËL
APPEARANCES:
Me Stewart Istvanffy FOR APPLICANT
Me Jocelyne Murphy FOR RESPONDENT
SOLICITORS OF RECORD:
Me Stewart Istvanffy FOR APPLICANT
1070, Bleury
Suite 503
Montreal, Quebec
H2Z 1N3
Me Jocelyne Murphy FOR RESPONDENT
Federal Justice Department
Quebec regional Office
200 West, René-Lévesque Blvd.
East Tower, 5th Floor
Montreal, Quebec
H2Z 1X4