Toronto, Ontario, March 7, 2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
DONHODZO THANDIWE NDUDZO
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Principal Applicant, Chiedza Melody Ndudzo, is a citizen of Zimbabwe who bases her Convention refugee claim on an alleged fear of persecution by reason of her political opinion. In a decision dated April 20, 2006, a panel of the Immigration and Refugee Board, the Refugee Protection Division (the Board) determined that the Principal Applicant and her daughter (who is a citizen of the United States) were neither Convention refugees nor persons in need of protection. The Applicants seek judicial review of that decision.
Issues
[2] The Applicants raise the following issues:
1. Did the Board err with respect to its finding that the evidence with respect to the alleged attack of March 15, 2000 was implausible?
2. Did the Board err in ignoring other evidence before it or it failed to give adequate reasons for rejecting that evidence?
3. Did the Board err with respect to its findings that the Principal Applicant had acted in a manner inconsistent with that of persons fearing persecution or that the Principal Applicant had shown a lack of subjective fear?
Background
[3] The Principal Applicant is a citizen of Zimbabwe and a member of the Movement for Democratic Change (MDC) Party in that country. The ruling party is the Zimbabwe African National Union – Patriotic Front (Zanu-PF). She claims that she was harassed by the Zanu-PF. She described an incident in January 2000 when she was arrested and detained by the police, apparently because of her possession of an MDC membership card. In March 2000, during her attendance at an MDC rally, she was attacked by a gang of Zanu-PF members. The last incident before her flight from Zimbabwe was an attack by members of the Zanu-PF in her home, on March 15, 2000. She left Zimbabwe for the United States in May 2000 where she resided until coming to Canada with her American-born daughter in September 2005.
[4] The Board dismissed her claim, primarily on the basis of a lack of credibility. The Board did not believe her story of being attacked in her home in March 2000 by members of the Zanu-PF. The key reasons appear to have been that:
• The Board did not accept as plausible the Principal Applicant’s story that the Zanu-PF thugs left the house, without harming the Principal Applicant, after seeing the Principal Applicant’s mother’s uniform. The Board also did not accept that the Zanu-PF thugs would not report the mother to the government authorities. The mother works for the government as a member of the army. As stated by the Board:
As a well-known army officer in the neighbourhood, the panel finds it more likely than not , [the mother] would have been perceived as having betrayed the government she served by harbouring MDC supporters in her home, especially so that the supporters are her own daughters. Further, the panel finds it implausible that if the principal claimant’s mother was so clearly identifiable by the Zanu-PF, that she would still be working in the government six years later and without having encountered any problems as a result of the March 15, 2000 incident.
• The Board noted the Applicant’s inconsistent testimony on how many Zanu-PF invaders came to the home.
[5] The Board also concluded that the Principal Applicant did not claim asylum in the United States during her five-year stay there “because of a lack of subjective fear of returning to Zimbabwe”.
Analysis
[6] Issues of credibility are factual findings that will only be overturned if they are patently unreasonable. On this standard, the Court will only intervene if the decision of the Board is perverse or capricious or made without regard to the evidence (Federal Courts Act, R.S.C. 1985, c. F-7, s. 18.1(4) (d); Brar v. Canada (Minister of Employment and Immigration), [1986] F.C.J. No. 346 (F.C.A.); Tekin v. Canada (Minister of Citizenship and Immigration), 2003 FCT 357 at para. 10).
[7] I am not persuaded that the Board erred in its finding on the March 15, 2000 home invasion. The Applicant submits that the Board “engaged in a mode of speculation” in assessing the evidence and drawing inferences. I do not agree. The Board considered the explanations of the Applicant with respect to the March 2000 incident and provided clear reasons, in its decision, why it rejected those explanations. While the Board drew some inferences with respect to the plausibility of the Zanu-PF actions, it did so with reference to and in the context of the documentary evidence concerning the country conditions (see, Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (F.C.A.); R.K.L. v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 162, at para.14) This was not a situation where the Board drew inferences without any factual foundation. I do not find the Board’s findings on the March 15, 2000 event to be patently unreasonable.
[8] I am also satisfied that the Board was not unreasonable in its finding that the Female Applicant’s failure to claim in the United States showed a lack of subjective fear. It is open to the Board to conclude that a failure to claim or delay in claiming refugee protection weighed against her credibility (Gonzalez v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 805). In this case, the Female Applicant’s explanations were considered and rejected by the Board. I see no reason to intervene.
[9] However, I have two concerns with the decision of the Board. The first is that the Board found inconsistencies in the testimony of the Female Applicant on the number of attackers during the home invasion. Having reviewed the Personal Information Form (PIF) of the Female Applicant and the transcript, I am satisfied that there was no inconsistency. The Board erred. Nevertheless, this is a minor error that, in my view, was not determinative of the issue of the credibility of the Female Applicant’s version of the March 15, 2000 incident. My second concern is more serious. There is no mention of – and certainly no analysis of – the incidents in January 2000 and March 2000 and certain other evidence. After dealing with the March 15, 2000 home invasion, the Board stated simply:
The panel is cognizant that the principal claimant described some other events of alleged harassment in her PIF narrative by Zanu-PF individuals. However, the panel has found that a material part of the principal claimant’s story, the March 15, 2000 incident was seriously lacking in credibility for the above reasons stated.
The Board continues by quoting from the case of Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238 (F.C.A.):
I would add that . . . even without disbelieving every word an applicant has uttered, a . . . panel may reasonably find him so lacking in credibility that it concludes there is no credible evidence relevant to his claim . . . In other words, a general finding of a lack of credibility on the part of the applicant may conceivably extend to all relevant evidence emanating from his testimony.
[10] It appears that the Board, on the basis of its finding on the March 15, 2000 incident, has made a general finding of lack of credibility. In other words, by not being credible about this one incident, the Principal Applicant is not to be believed on any element of her story. As a result, the Board did not address or consider:
• the incidents in January 2000 and March 2000 or explain why they were not indicative of persecution; or
• the Female Applicant’s evidence of her membership in the MDC; or
• the documentary evidence concerning the treatment of MDC members in Zimbabwe.
[11] There may be circumstances where a general finding of lack of credibility could be reasonable drawn from an analysis of one incident. In my view, this is not such a case. I agree with the Applicants that, in this case, the Board should have dealt with the aspects of the claim outlined above. Its failure to do so constitutes a reviewable error.
[12] I have no way of knowing whether the conclusion of the Board would have been different had it carried out a complete analysis. Accordingly, I will allow the application for judicial review.
[13] Neither party proposed a question for certification. No question of general importance will be certified in this case.
ORDER
THIS COURT ORDERS that
1. The application is allowed and the matter referred back for re-determination by a different panel of the Board;
2. No question of general importance is certified.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-2597-06
STYLE OF CAUSE: CHIEDZA MELODY NDUDZO
DONHODZO THANDIWE NDUDZO
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MARCH 6, 2007
REASONS FOR ORDER BY: SNIDER J.
APPEARANCES BY: Mr. D. Clifford Luyt
For the Applicants
Mr. David Knapp
For the Respondent
SOLICITORS OF RECORD: Czuma Ritter
Barristers and Solicitors
Toronto, Ontario
For the Applicants
John H. Sims, Q.C.
Deputy Attorney General of Canada
For the Respondent