Date: 20030110
Docket: IMM-5757-01
Ottawa, Ontario, the 10th day of January 2003
Present: The Honourable Mr. Justice Pinard
Between:
Sikhulile NDHLOVU
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review of a decision by the Convention Refugee Determination Division of the Immigration and Refugee Board dated November 22, 2001, determining that the applicant is not a Convention refugee is dismissed.
"Yvon Pinard"
Judge
Certified true translation
Mary Jo Egan, LLB
Date: 20030110
Docket: IMM-5757-01
Neutral Citation: 2003 FCT 6
Between:
Sikhulile NDHLOVU
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision by the Convention Refugee Determination Division of the Immigration and Refugee Board (IRB) dated November 22, 2001, determining that the applicant is not a Convention refugee within the meaning of subsection 2(1) of the Immigration Act, R.S.C., 1985, c. I-2 (the Act).
[2] The applicant is a citizen of Zimbabwe and is claiming refugee status on the basis of her political opinion, because she belongs to the "Liberty Party of Zimbabwe" (LPZ).
[3] The applicant submits that the IRB erred in assessing the documentary evidence concerning her claim. It is settled law that the IRB is a specialized tribunal with jurisdiction to assess the plausibility and credibility of testimony as long as the inferences drawn are not unreasonable (Aguebor v. M.E.I. (1993), 160 N.R. 315 (F.C.A.)) and the grounds are clear and unmistakable (Hilo v. M.E.I. (1991), 130 N.R. 236 (F.C.A.)).
[4] In this case, the IRB had doubts about the applicant's membership in the LPZ, because she submitted a form letter as evidence. The IRB did not err in deciding not to assign any probative value to the letter. However, because the two other documents submitted to establish that the applicant was a member of the LPZ directly contradict the finding made by the IRB, it should not have rejected them without an explanation. Nonetheless, this error is of no consequence because the panel did not make a patently unreasonable error in finding that the LPZ was a minor political party, that the applicant's profile was not that of a political activist and that the documentary evidence failed to establish that political violence is practised against its members. In fact, on that point, the panel stated:
While the documentary evidence3 confirms that there are examples of politically motivated violence initiated by the ruling ZANU(PF) party upon the opposition group; the documentation talks exclusively of the Movement for Democratic Change (MDC), a political party that came to prominence in challenging the ruling party (ZANU(PF)) during the June 2000 parliamentary election.
The Liberty party4 is described as a minor political party located in the Ndebele area and has little impact on the political process. The claimant was unable to produce any documentation to confirm political violence practised against the Liberty party.
In fact, the only article produced5 by the claimant talked about visits by representatives of the C.I.O. to certain members to investigate funding for various community party projects. However, there is no allegation of violence in said article.
As in the Adu6 case:
"The "presumption" that a claimant's sworn testimony is true is always rebuttable and, in appropriate circumstances, may be rebutted by the failure of the documentary evidence to mention what would normally expect it to mention."
The panel does not believe there is objective evidence to support the allegation of persecution against members of the Liberty party. Further, the claimant's profile was not that of a political activist. The claimant is twenty-three years of age. Despite being a member of the party since January 1998, her entire political activity related to passing pamphlets (on occasion) and assisting with various social projects. . . .
3 Exhibit P-7: Document from Amnesty International entitled "Zimbabwe: Politically motivated violence deliberately targeting opposition political activists and farming communities in rural areas", News Service, 25 April 2000;
Exhibit P-8: "Zimbabwe: Amnesty International calls for international observers".
4 Exhibit A-3: Zimbabwe Assessment (April 2001).
5 Exhibit P-9: Articles en liasse.
6 Adu, Peter, v. M.E.I. (F.C.A. no. A-194-92), Hugessen, Strayer, Robertson, January 24, 1995.
[5] After reviewing the evidence, I am of the view that the applicant has not discharged her burden of proving that the inferences drawn by the IRB, a specialized tribunal, could not reasonably have been drawn. Although the IRB erred in rejecting the evidence about the applicant's membership in the LPZ, a finding to the contrary would not have altered its final decision, because its finding as to a lack of objective fear was reasonable.
[6] Lastly, the applicant submits that the IRB made a patently unreasonable error concerning her flight from her country of origin. She maintains that the IRB erred in finding that she could not have been a victim of persecution because she was able to leave her country using her own passport. Although it may be that using the passport does not by itself constitute sufficient evidence of the lack of a well-founded fear of persecution, the IRB cited it as only one part of the evidence that it considered.
[7] Since I am of the view that the IRB discharged its obligations without making a reviewable error, the application for judicial review is dismissed.
"Yvon Pinard"
Judge
OTTAWA, ONTARIO
January 10, 2003
Certified true translation
Mary Jo Egan, LLB
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5757-01
STYLE OF CAUSE: Sikhulile NDHLOVU v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 19, 2002
REASONS FOR ORDER BY: The Honourable Mr. Justice Pinard
DATED: January 10, 2003
APPEARANCES:
Stewart Istvanffy FOR THE APPLICANT
Ella Lokru, student-at-law
Édith Savard FOR THE RESPONDENT
Vana Valletta, student-at-law
SOLICITORS OF RECORD:
Stewart Istvanffy FOR THE APPLICANT
Lawyer
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario