Toronto, Ontario, October 12, 2006
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision made by Jiti Singh Grewal, member of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated November 15, 2005, wherein the Applicant was found not to be a Convention refugee or a person in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] The Applicant is a citizen of Zimbabwe. He alleges a well-founded fear of persecution by the ruling ZANU-PF government by reason of his imputed political opinion as a member of the opposition party, the Movement for Democratic Change (MDC), as well as his membership in a particular social group, namely, as a person with family members who are active in the MDC.
[3] In particular, the Applicant testified before the Board that he is an active member of the MDC and fears being targeted by the Zanu-PF if returned to Zimbabwe. He presented an e-mail dated September 16, 2005 from Mr. Andrew M. Manyevere, who holds a position as Secretary General of the MDC Dallas branch, to support his contention that he became a member of the MDC Dallas branch. The Applicant also presented a letter dated November 25, 2003 from the “Office of the Shadow Minister of Local Government” signed by Mr. Gabriel Chaibva, MP. These letters of support endorse the Applicant’s contention that he is a member of the MDC and both authors recommend that he should not return to Zimbabwe until the political environment becomes more democratic and conducive to free expression. The Applicant also submitted two membership cards from the MDC.
[4] The Board did not give any weight to the e-mail and letter signed by MDC officials and found that they were obtained by “fraudulent means”. The main reason for coming to this latter conclusion is that according to the documentary evidence cited by the Board, the MDC had no policy to assist asylum seekers, either officially or unofficially (Exhibit R-5, ZZZ38535.E, dated February 28, 2002). The finding that the Applicant obtained the two documents in question “by fraudulent means”, in the Board’s words, “impacts the overall credibility of the [Applicant]” and “in light of the credibility concerns”, the Board also “does not give any weight” to the two MDC cards submitted by the Applicant as direct evidence of his membership in the MDC.
[5] There is no evidence that the Applicant meant to deceive the Board and the Board’s finding that the two letters of support mentioned above were obtained by “fraudulent means” is patently unreasonable. In making this finding, the Board overlooked relevant conflicting evidence or otherwise made a selective reading of the documentary evidence, which also mentions that “members of the party’s executive committee occasionally write letters of introduction for party members” (Exhibit R-1, RPD Information Package November 2004, ZWE38381.E, dated April 19, 2002 certified tribunal record, at page 73). Moreover, in the case at bar, it is apparent that the two letters of support mentioned above do not purport to speak in the name of the MDC as a party but are tendered by the writers in their personal capacities as persons knowledgeable about the Applicant’s personal involvement with the MDC.
[6] In addition, the Board imposed an excessive burden on the Applicant by expecting him to explain entries made by MDC officials, especially with regard to the location of the signatures appearing on the subscription schedule appearing on the MDC card issued in Dallas. Given the fact that the Board had no evidence before it as to the nature and the format of MDC membership cards, it also wrongly impugned the MDC card issued in Harare, on the basis that the card in question made no mention of when it was issued or when the Applicant obtained it (Adamarasha v. Canada (Minister of Citizenship and Immigration), 2005 FC 1529).
[7] The above errors are material and affect the determination made by the Board that the Applicant is not a Convention refugee or a person in need of protection. Therefore, it will not be necessary to examine the legality of the other findings made by the Board pertaining to the lack of subjective fear and the lack of credible evidence that the Applicant’s family members, especially his brother, are members of the MDC.
[8] Therefore this judicial review application will be allowed. I agree with counsel for the parties that this is not a matter for certification.
ORDER
THIS COURT ORDERS that
1. The application for judicial review is allowed.
2. The decision of the Refugee Protection Division, dated November 15, 2005, wherein the Applicant was found not to be a Convention refugee or a person in need of protection, is set aside and this matter is sent back to the Refugee Protection Division for re-determination by a differently constituted panel.
3. There is no question for certification.
“Luc Martineau”
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-7330-05
STYLE OF CAUSE: LLOYD MHAKA v.
THE MINSITER OF CITIZENSHIP &
IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: October 10, 2006
REASONS FOR ORDER
AND ORDER BY: Martineau, J.
DATED: October 12, 2006
APPEARANCES BY:
Mr. Kingsley Jesuorobo Applicant
Mr. David Joseph Respondent
SOLICITORS OF RECORD:
Kingsley Jesuorobo
Toronto, Ontario Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada Respondent