Federal Court Decisions

Date: 20070515

Docket: IMM-2861-06

Citation: 2007 FC 518

Ottawa, Ontario, May 15, 2007

PRESENT:     THE CHIEF JUSTICE

BETWEEN:

CEDRIC KONDWANI KAVALO

GLENDA SITHOLE

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]               The applicants are married and are citizens of Zimbabwe. In 2005, they sought refuge in Canada after living in the United States for some ten years.

[2]               In 1999, Mr. Kavalo’s mother became ill. The applicants began sending funds to Mr. Kavalo’s sister, Grace, in Zimbabwe to help pay for their mother’s medical treatments. The funds were sent from the U.S. to Zimbabwe via Western Union.

[3]               During that same period, Grace Kavalo is said to have become involved with the Movement for Democratic Change (MDC), an opposition party in Zimbabwe.  

[4]               In June 2000, Mr. Kavalo was advised that his sister Grace had been detained by the Central Intelligence Operation (CIO) in Zimbabwe. She was beaten and threatened with death while being questioned concerning her involvement with the MDC and the source of the funds she had been receiving.

[5]               Shortly after this incident, Grace Kavalo joined the applicants in the United States. She did not seek refuge in Canada with the applicants.

[6]               It is on the basis of these allegations that the applicants seek refugee status. They fear persecution from the ruling party in Zimbabwe as a result of Grace Kavalo’s involvement with the MDC. The Refugee Protection Division determined that the applicants’ allegations were not credible and that they had failed to establish that they were Convention refugees or persons in need of protection. This proceeding is the application for judicial review of that negative decision.

[7]               The presiding member questioned Mr. Kavalo.

[8]               It was the applicant’s view that the CIO knew, even before detaining Ms. Grace Kavalo, that she was receiving funds. In the port of entry notes, the immigration officer attributed the following statement to Mr. Kavalo concerning his sister: “She was asked why the money was coming in but was not showing up in the bank account at any time”. Under questioning during her detention, Ms. Kavalo disclosed that the funds were being sent by the applicants.

[9]               On review of the refugee hearing transcript, it can be readily understood that Mr. Kavalo was suggesting the CIO knew of his sister’s receipt of funds as the result of information it had intercepted from Western Union.  

[10]           It was not unreasonable for the tribunal to be concerned with the applicants’ inability to produce any documentation from Western Union to confirm that funds had been transferred some five years ago. In view of the position asserted by the applicants, it could be expected that the tribunal would canvass the issue of Western Union’s security procedures.

[11]           The presiding member questioned why the CIO would interrogate Ms. Kavalo if it had previously obtained the relevant information concerning the transfer of funds through Western Union. Counsel for the applicant ably argued that the CIO was determined to obtain further confirmation from Ms. Kavalo. In my view, however, the tribunal did not commit a reviewable error in questioning the plausibility that the CIO could have become aware of the particulars of the transfers, if they in fact occurred. The applicants provided no further explanation beyond mere speculation.

[12]           The applicants’ reliance on Ms. Kavalo’s affidavit, signed in Texas one month prior to the refugee hearing, does not explain why arrangements were not made to have her testify via videoconference to bolster further the applicants’ case. There is no reviewable error in the tribunal’s decision not to attach probative value to her affidavit. To the contrary, this is consistent with its overall negative credibility assessment.

[13]           It may be true that no individual inconsistency identified by the tribunal, particularly concerning the knowledge of the CIO prior to its alleged detention of Ms. Kavalo, is fatal to the applicants’ claim. However, when taken collectively, the concerns noted by the tribunal regarding the security measures implemented by Western Union, the applicants’ premise that the CIO knew of the transfers and the persons involved before questioning Grace Kavalo, the statements attributed to Mr. Kavalo in the port of entry notes and the lack of Western Union documentation could support the rejection of the testimony. Upon a complete review of the record, I am not persuaded that the negative credibility finding was unreasonable, let alone patently unreasonable.

[14]           Accordingly, this application for judicial review will be dismissed. There is no serious question to be certified.

ORDER

THIS COURT ORDERS that this application for judicial review is dismissed.

“Allan Lutfy”

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                          IMM-2861-06

STYLE OF CAUSE:                          CEDRIC KONDWANI KAVALO ET AL

                                                            v.

                                                            THE MINISTER OF CITIZENSHIP AND

                                                            IMMIGRATION

PLACE OF HEARING:                    TORONTO, ONTARIO

DATE OF HEARING:                      MAY 9, 2007

REASONS FOR :                              CHIEF JUSTICE LUTFY

DATED:                                             MAY 15, 2007           

APPEARANCES:

SOLICITORS OF RECORD: