Ottawa, Ontario, March 20, 2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
MARGARET TAMBUDZAI CHANYOWEDZA
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Immigration and Refugee Board (Board) rejected the Applicants’ claims for refugee status and for protection on the issues of well foundedness and credibility. The principal Applicant (Applicant) is a citizen of Zimbabwe and her daughter, the minor Applicant, is a citizen of the United States. The critical issues in this judicial review are (a) whether the Board applied the correct legal test in s. 96 when it used the words “serious doubt” in respect of a well founded fear of persecution and (b) whether her opportunistic motives for joining a group were considered to disqualify her from s. 97 protection.
II. BACKGROUND
[2] The Applicant’s father had been the subject of attacks by Zimbabwean war veterans. Her father decided to send the Applicant and her sister to the United States where she attended college in 1999.
[3] She had a child while in the U.S. She also claimed that she joined a Zimbabwean protest group, the Movement for Democratic Change (MDC) but did not attend meetings because of fears that agents of her government would denounce her.
[4] She did not seek refugee status because, after a two-year delay, she understood that there was little point in applying due to the U.S. law generally prohibiting status after a one-year delay.
[5] The Applicant came to Canada in September 2005 and made a refugee claim largely on the basis of her father’s “persecution” in Zimbabwe. She claims that she joined the MDC branch in Niagara Falls, Canada, but that she played no role in its formation.
[6] It is evident that the Board had concerns about the overall credibility of the Applicant’s claim in a number of respects. The Board concluded that it had “serious doubts” that the Applicant faced a well founded fear of persecution. The Board goes on to find that “overall the principal claimant has failed to establish that she faces a serious possibility of harm if she returns” to Zimbabwe.
[7] The Board did not believe that the Applicant had joined the MDC in the United States and concluded that even if she was afraid that agents would disclose her membership, these fears were speculative. With respect to her involvement in the Canadian branch of the MDC, her role was minimal. After referring to the UNHCR Handbook and James C. Hathaway’s book on The Law of Refugee Status, the Board went on to hold that it was also entitled to consider her opportunistic motives in joining the Canadian MDC and concluded that she was bolstering her claim by creating the circumstances of her alleged fear.
III. ANALYSIS
A. Section 96
[8] The Applicant argues that the use of the words “serious doubts” as to the Applicant’s fear of persecution is either (a) the expression of the wrong legal test in s. 96 or (b) is a confusing statement not clearly expressing the correct legal test. The Applicant says that this case falls within the rationale of Justice O’Keefe’s decision in Tariq v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 822 (QL).
[9] With the greatest respect for counsel’s able argument, I cannot agree. One cannot become fixated on these words or engage in matters of semantics without considering the whole of the decision and the context within which those words appear. (See Sivagurunathan v. Canada (Minister of Citizenship and Immigration), 2005 FC 432)
[10] As I read these words, they refer to whether the Applicant has met the legal criterion under s. 96, not a definition of the legal test to be applied under that provision. This view is reinforced by the fact that the Board refers to the legal test under s. 96 later in the judgment.
[11] A review of the evidence before the Board, including the fact that no one had directed any attention toward her or her sister or even toward her brother who was living in Zimbabwe, shows that there was a factual basis for the Board’s conclusion.
[12] Therefore, as a matter of standard of review, the Board applied the correct legal test and made a reasonable finding in applying the facts to the law.
[13] There are no patently unreasonable findings of fact which would undermine this decision.
B. Section 97
[14] The Applicant correctly asserts that it is not sufficient to examine the purely subjective aspect of this claim. Even an opportunistic circumstance, while relevant to the legitimacy of the need for protection claim, does not justify disregarding objective risk. How far opportunistic and questionable claims may be pushed to create the objective risk need not be addressed here.
[15] In this instance, the Board did a thorough review of the objective component of her MDC membership in the U.S. The Board found that her MDC activities (if any) were not likely to come to anyone’s attention and that she had exhibited little interest in the movement.
[16] The Board then layers on this U.S. experience, her Canadian MDC connection, and her lack of involvement in the organization. The Board refers to the UNHCR Handbook and Professor Hathaway’s book in respect of the obligation to consider the objective basis of a claim, despite concerns about the subjective fears and claims founded on ill motives.
[17] Since there was no significant difference between her profile and risk in the context of her U.S. activities and those of her Canadian activities, there is no need to repeat the conclusions separately for each country.
[18] The Board had its obligation to consider this objective evidence of her profile and risk clearly in mind. There is nothing in its conclusions to suggest that it had failed to meet this obligation.
[19] The comments of Justice Hugessen in Asfaw v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1157 (QL) are apt:
The Board’s examination of the motives was therefore not an irrelevant matter and the determination which they reached on that subject was one which was open to them on the evidence. It would I agree have been an error if the Board had stopped its examination at that point and had not also looked at whether or not the claimant had an objective fear but, they did not commit that error.
[20] There was nothing patently unreasonable about the Board’s finding of non-membership in the U.S. MDC. It was consistent with her statement at the Canadian port of entry. The Board’s analysis of her objective risk was an alternative assessment based upon assuming she was a member in the U.S. The Board accepted that she was listed as a member of the Canadian MDC which indicates that its objective fear analysis was applicable to both countries.
[21] The Board’s rejection of her excuse for not filing a refugee claim does not ignore the part of her excuse based on her age of 18 at the time of entry to the U.S. The Board accepted that her age was a mitigating factor, as evidenced by the transcript; it is just that the mitigating factor was not sufficient to overcome all the other evidence of no genuine fear. There is nothing patently unreasonable in this conclusion.
IV. CONCLUSION
[22] For these reasons, I find no basis for overturning the Board’s decision. This application for judicial review will be dismissed. There is no question for certification.
JUDGMENT
IT IS ORDERED THAT this application for judicial review is dismissed.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2553-06
STYLE OF CAUSE: CHIPO PAULINE MUTANGADURA
MARGARET TAMBUDZAI CHANYOWEDZA
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 8, 2007
REASONS FOR JUDGMENT: Phelan J.
APPEARANCES:
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Mr. Micheal Crane
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Ms. Anshumala Juyal
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SOLICITORS OF RECORD:
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MR. MICHEAL CRANE Barrister & Solicitor Toronto, Ontario
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MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario
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