Date: 20030930
Docket: IMM-5122-02
Citation: 2003 FC 1119
Ottawa, Ontario, this 30th day of September, 2003
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
SEHLULE NYATHI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Introduction
[1] This is an application for judicial review of the negative decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), rendered October 2, 2002.
Background
[2] Sehlule Nyathi is a 32-year old citizen of Zimbabwe. As a member of the Movement For Democratic Change ("MDC"), she claims a well-founded fear of persecution from the ruling Zimbabwe African National Union - Patriotic Front ("ZANU-PF"), on the basis of her political opinion. She also claims to be a person in need of protection pursuant to s. 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act").
[3] The applicant's evidence is that she was an election monitor in the civic election held in Harare on September 8-9, 2001. The election was won by the MDC candidate. As a result of her involvement, the applicant states that she was the target of a series of threatening actions and phone calls. On September 10, 2001, she received a telephone call at work from a person who told her "we are going to get you" and "we know where you are". She was followed on that day and during the following week. On September 16, 2001, she went to her parents' house in Bulawayo, located 300 miles away. On September 18, 2001, someone banged on the gate of her parents' house and she received another threatening call at the house. The applicant left Zimbabwe for Canada, in fear for her life. Her uncle in Edmonton arranged for her passage to Canada, and she arrived on September 30, 2001, and claimed refugee status on November 9, 2001.
Board's Decision
[4] The Board set out the applicant's narrative as stated above. The Board held that the applicant's story was not credible nor plausible. The Board stated that the applicant did not do
anything that would have resulted in her receiving threats from the ZANU-PF.
[5] The Board noted that the applicant joined the MDC in February 2001, and participated in three political rallies that the same year. These rallies were targeted by the ZANU-PF, who tried to break up the meetings.
[6] The Board noted that the applicant's political party affiliation was not known by the electoral commission who hired her and that there were no polling irregularities in the civic election, nor indications of the monitors' political affiliations.
[7] The Board stated that it did not believe that the applicant would be harmed were she to return to Zimbabwe. Although the applicant stated that the ZANU-PF generally carry out their threats, the Board asked why the applicant would be followed 300 miles to her parents' home, and then not be harmed after having received threats at that location. The Board held that "there was no credible evidence before [it] to indicate that members of ZANU-PF had any interest in the claimant before she came to Canada or that they will if she were to return to Zimbabwe today." Consequently, the Board rejected the applicant's claim for asylum.
Issues
[8] The applicant raises two issues on judicial review:
A. Did the Board base its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard to the material before it?
B. Did the Board commit an error of law in concluding that the applicant is not a person in need of protection?
Standard of Review
[9] The first issue raised by the applicant involves plausibility and credibility determinations which are findings of fact. The jurisprudence has held that such findings are usually afforded the highest level of deference on judicial review. The standard of review for findings of fact by an administrative tribunal is "patent unreasonableness": Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at para. 37; Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.).
[10] The applicant argues that the second issue is a question of law for which the applicable standard of review is correctness. The second issue is whether the Board erred in its assessment of whether the applicant is a person in need of protection under the Act. I am of the view that this raises a question of mixed fact and law for which the standard of review is reasonableness simpliciter: Jayesekara v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1014, [2001] F.C.J. No. 1393 (QL).
Analysis
A. Did the Board base its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard to the material before it?
[11] The applicant argues that the Board made three errors in its consideration of the facts. First, by rejecting the applicant's allegation of being threatened by members of ZANU-PF on the basis that she did not do anything that would have brought such a response from the said members. In so doing, the applicant contends that the Board failed to consider documentary evidence which corroborated her claim, including a letter from her mother which confirmed that threatening calls are still being made by the agents of persecution. Second, by finding implausible the call received by the applicant after the civic election, accusing her of convincing people to vote for MDC and threatening to harm her when she had stated that there were no voting irregularities. And third, by finding implausible that the ZANU-PF would go to such lengths merely to scare her if they were interested in harming her.
[12] With respect to the first of the three factual errors, it is the applicant's position that the Board committed a review able error by stating in its reasons that the applicant, "...[She] did not do anything that would have brought such a response from members of ZANU-PF." The applicant argues that such reasoning by the Board fails to recognize that the applicant was being targeted because she was an election monitor and a member of the MDC. The Board accepted the applicant's evidence that she was a member of the MDC. The applicant argues that the documentary evidence supports her story that MDC polling agents have been targeted, assaulted, and tortured by the ZANU-PF. The applicant asserts that the documentary evidence further supports her narrative concerning the targeting of MDC polling agents by the ZANU-PF, since it includes an account of the abduction of Mr. Nabanyama, a former member of ZANU-PF and MDC polling agent. The applicant submits that the Board ignored this relevant evidence, since it was not referred to in its decision. The applicant submits that the Board must state in clear and unmistakable terms why this evidence was rejected. The applicant also contends that assessment of plausibility should not be from a Canadian perspective, and that the Board should have considered the facts from the perspective of the persecutor.
[13] With respect to the second alleged factual error, the applicant argues that it is inconsequential whether there were any irregularities at the polling station where she worked during the civic election as an election monitor or whether she was asked about her political affiliation. The applicant argues that the documentary evidence supports her contention that ZANU-PF members would have been able to identify her and that election monitors, who are members of the MDC, are at risk. The applicant therefore argues that the Board's finding that the threatening call received after the election was implausible, was in error.
[14] Finally, the applicant maintains that the Board erred in finding implausible that the ZANU-PF members who allegedly wanted to harm the applicant, would go to such lengths to only scare her. The applicant testified at the hearing that she knew it was just a matter of time, and that the documentation supported her contention that ZANU-PF members usually carried out their violent threats.
[15] All of the above arguments, ably advanced by counsel for the applicant, challenge the Board's plausibility and credibility findings. These are findings of fact reviewable only if they are determined to be patently unreasonable. For reasons which will follow, I am of the view that these findings of fact are not patently unreasonable.
[16] The election in which the applicant participated in as an election monitor was a civic election in Harare, held on September 8-9, 2001. The documentation on the record deals with the national elections that were held on June 24-25, 2000, and in 2002, and refer essentially to polling agents who worked for an opposition party candidate and to "middle-ranking opposition officials" targeted by the ZANU-PF. The applicant's situation is different, since she was a one-time election monitor whose political party affiliation was not known prior to her being hired. The Board noted in its reasons that the applicant joined the MDC in February 2001, and participated in three rallies that year. There is no evidence of her being politically involved prior to that time.
[17] At the hearing, the applicant stated that she applied for work as an election monitor at the government offices in Harare. The only qualification was that she be 18 years of age or older. The applicant testified that she provided her name, address, work phone number and the name and address of her parents. The applicant also stated that she was not asked about her political affiliation when she applied to become an election monitor. The applicant stated that there were four monitors at her station and that she did not know the political affiliations of the other three.
Her job was to ensure that people did not display their political affiliations at the polling station, as the elections were to be non-partisan. I accept that the ZANU-PF party has engaged in political intimidation and violence against the opposition party MDC. However, in the circumstances of this case, given the applicant's political profile, the Board did not err in finding that she would not be targeted by the ZANU-PF by reasons of her work as a polling monitor. I am satisfied that the Board did not make a patently unreasonable finding of fact nor ignore documentary evidence in holding that the applicant's story was not plausible.
[18] With respect to the applicant's argument that the Board failed to deal with certain other evidence she adduced, I accept the respondent's submission that the Board is not required to mention all of the evidence introduced by the applicant: Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (C.A.). However, I am of the view that the Board should have specifically dealt with the letter from the applicant's Mother, tendered to corroborate the applicant's evidence that the threats from the ZANU-PF are ongoing. Notwithstanding this error, the decision must be considered as a whole, in the sense that a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole. The Supreme Court of Canada in a recent decision stated that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling. The Court went on to state that this does not mean that every element of the reasoning given must independently pass a test for reasonableness. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision. See Law Society of New Brunswick v. Ryan [2003] S.C.J. No. 17 at para. 55 & 56. I am satisfied that the reasons in this instance are tenable as support for the decision.
B. Did the Board commit an error of law in concluding that the applicant is not a person in need of protection?
[19] The applicant submits that the Board erred in not fully assessing whether the applicant was a person in need of protection. The applicant refers to the documentary evidence to establish that MDC members are in great danger at the hands of the ZANU-PF, and submits that this documentary evidence contradicts the Board's conclusion that the applicant is not a person in need of protection. The applicant argues that the finding that there is no serious possibility that the applicant would face danger of torture or risk to life or be subjected to cruel and unusual punishment is contrary to the documentary evidence and constitutes an error of law. The applicant advanced the following argument:
Even if the panel member was correct in finding the applicant not to be a person whose refugee claim was based on one of the Convention refugee grounds, it is respectfully submitted that the applicant should still have been assessed on whether she is a person in need of protection.
[20] The applicant's argument on this second issue relies in part on grounds stated in her first issue: that the Board failed to have regard to the documentary evidence in assessing her claim. For essentially the same reasons given earlier, I find the Board's determination that the applicant's story was implausible in the circumstances to be reasonably open to it. Consequently, the applicant's argument concerning the documentary evidence is without merit.
[21] The Board determined the applicant's section 96 claim on a negative credibility finding. The Board did not believe her story and did not accept that she had a well-founded fear of persecution at the hands of the ZANU-PF based on her political opinion. A "person in need of protection", as set out in s. 97 of the Act, is a person whose removal would subject her personally to "a danger, believed on substantial grounds to exist, of torture..." or to a "risk to [her] life or to a risk of cruel and unusual treatment or punishment...". A negative credibility determination which may be determinative of a refugee claim under s. 96 of the Act is not necessarily determinative of a claim under subsection 97(1) of the Act. The elements required to establish a claim under section 97 differ from those required under section 96 of the Act, where a well-founded fear of persecution to a Convention ground must be satisfied. Although the evidentiary basis, may well be the same for both claims, it is essential that both claims be considered as separate. A claim under section 97 of the Act requires that the Board apply a different test, namely whether a claimant's removal would subject that individual personally to the dangers and risks stipulated in paragraphs 97(1)(a) and (b) of the Act. Whether a Board properly considered both claims is a matter to be determined in the circumstances of each individual case bearing in mind the different elements required to establish each claim.
[22] In the instant case, a review of the documentary evidence does not support the applicant's allegation that there is substantial evidence to show that all MDC members are in great danger at the hands of ZANU-PF. As noted earlier in these reasons, the documentary evidence does mention certain incidents of violence against persons with a much higher political profile than that of the applicant. Excepting the applicant's evidence which was determined to be non-credible, there is no other credible evidence which would allow a Board to conclude that the applicant is a person in need of protection under the provisions of section 97 of the Act.
[23] With respect to the s. 97 claim, the Board did express its conclusion that the applicant is not "a person in need of protection". It failed, however, to expressly deal with the claim in its reasons and erred by so doing.
[24] This error is not, in my view, material to the result. The Board did in its reasons consider the documentary evidence and I find that, in the circumstances of this case, the evidence would not support a finding that the applicant was a person in need of protection within the provisions of s. 97 of the Act, in any event. No useful purpose would be served in sending the matter back for re-consideration on this basis.
Conclusion
[25] For the reasons set out above, the application for judicial review will be dismissed.
[26] Neither party proposed a question for certification. The Court declines to certify a question.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board dated October 2, 2002, is dismissed.
2. No question of general importance is certified.
"Edmond P. Blanchard"
Judge
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5122-02
STYLE OF CAUSE: Sehlule Nyathi v. MCI
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: August 12, 2003
REASONS FOR ORDER AND ORDER: Blanchard J.
DATED: September 30, 2003
APPEARANCES:
Mr. Simon K. Yu FOR APPLICANT
Ms. Tracy J. King FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Simon K. Yu FOR APPLICANT
906-10080 Jasper Ave
Edmonton, Alberta T5J 1V9
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Edmonton, Alberta T5J 3Y4