Ottawa, Ontario, February 7, 2007
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
Applicant
and
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Nyamukondiwa is a 22 year-old citizen of Zimbabwe who claims refugee protection, stating that he is a member of the Movement for Democratic Change (MDC) and that he fears persecution at the hands of supporters of the Zimbabwe African National Union-Patriotic Front (ZANU-PF). The Refugee Protection Division of the Immigration and Refugee Board (Board) heard Mr. Nyamukondiwa’s claim and dismissed it in reasons that contain a number of factual errors.
[2] First, the Board did not believe Mr. Nyamukondiwa’s testimony that he had been severely beaten and yet “was told to get some over the counter medication at the clinic”. In fact, Mr. Nyamukondiwa stated in his Personal Information Form (PIF) that:
Feeling continuous bodily pain, I went to seek accommodation from one of my High School classmates who took me to a clinic. At the clinic they told me to obtain a report from the Police before treatment. Knowing that the Police in most cases support members of the ZANU (PF) youths as regards the way they treat members of the opposition, I felt it pointless to go to them because instead of helping me they would blame me for joining the opposition Party. My friend then went to buy some medicine over the counter in-order to relieve me from pain.
[3] Additionally, Mr. Nyamukondiwa testified before the Board that:
PRESIDING MEMBER: Did you get any medical help?
CLAIMANT: Yes, from over the counter because when I went to the hospital they told [me] that they needed a police report and since my father experienced this same situation of the [ZANU-PF] beating him, he went to the police but the police denied him a police report because he is an MDC supporter. And the police and the [ZANU-PF] work together so they didn’t give him a police report so I found it pointless to go to the police and get a police report because I thought that they were probably going to say the same thing or maybe make fun of me why I joined the MDC. So I didn’t get – go to a medical facility to get attention.
At no time did Mr. Nyamukondiwa say he was told to “get some over the counter medicine”.
[4] Second, the Board found that because Mr. Nyamukondiwa could enter and leave Zimbabwe with ease he did not have the profile of someone who the state considers to be dangerous. However, the state was not Mr. Nyamukondiwa’s agent of persecution. Mr. Nyamukondiwa feared young ZANU-PF supporters.
[5] Third, the Board did not believe Mr. Nyamukondiwa’s testimony because it found that after the beating his friends and relatives refused to shelter him and Mr. Nyamukondiwa was very vague about where he spent the two weeks that followed the beating. However, Mr. Nyamukondiwa stated in his PIF and testified orally that not all of his friends and relatives refused to take him in and after staying with high school friends he moved from relative to relative. I am unable to ascertain what testimony the Board characterized to be vague, as a review of the transcript shows Mr. Nyamukondiwa answered all of the questions put to him and the Board did not seek further clarification on this point.
[6] Fourth, the Board found it to be implausible if the “Zanu-PF gang” was looking for Mr. Nyamukondiwa that its members would not find him given that Mr. Nyamukondiwa did not have too many places in which to hide. The basis in the evidence for this inference is unclear.
[7] Finally, the Board found that Mr. Nyamukondiwa “provided no evidence that [ZANU-PF] had come looking for him at his house”. However, Mr. Nyamukondiwa testified that the tenants who lived at his former residence told him that ZANU-PF youths had come looking for him there.
[8] These errors are significant and were fundamental to the Board’s negative credibility finding. They show that in crucial respects the Board made its findings of fact without regard to the evidence before it. As such those findings are patently unreasonable. I am left with little confidence in the soundness of the Board’s other conclusions. For this reason, the application for judicial review will be allowed.
[9] Counsel posed no question for certification and I agree that no question arises on this record.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is allowed and the decision of the Refugee Protection Division dated March 2, 2006 is hereby set aside.
2. This matter is remitted for a redetermination by a differently constituted panel of the Refugee Protection Division.
3. Due to the many errors contained therein, the reasons given by the Refugee Protection Division in support of its March 2, 2006 decision are not to be provided to the panel that hears the redetermination of this claim.
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1695-06
STYLE OF CAUSE: TAWANDA JERALD NYAMUKONDIWA, Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION, Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 30, 2007
APPEARANCES:
JIDE OLADEJO FOR THE APPLICANT
MARGHERITA BRACCIO FOR THE RESPONDENT
SOLICITORS OF RECORD:
JIDE OLADEJO FOR THE APPLICANT
TORONTO, ONTARIO
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA