PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
(A.K.A. MOSES JERRY WIL DZIMBA)
SOLA DZMIBA
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board) that determined that the applicants were not Convention refugees or persons in need of protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
Allegations made by the applicants
[2] The principal applicant and his wife are citizens of Zimbabwe. The principal applicant alleges to have a well-founded fear of persecution based on his membership in a particular social group, that is to say, a police officer with knowledge of police and war veteran activities, as well as on a perceived political opinion as a supporter of the MDC (Movement for Democratic Change).
[3] The principal applicant worked for 28 years as a police officer in Zimbabwe, specifically from 1974 to 2002. He was entitled to retire in 1999 after 25 years of service but chose to continue for another three years. He held a variety of positions, including those of senior officer. According to the documentary evidence, the police force in Zimbabwe is well known for perpetrating human rights abuses. The principal applicant was aware of such abuses. However, he asserts that he never committed any such abuses but was committed to bringing to justice those individuals who did.
[4] The principal applicant alleges that in 2001 he was put in charge of a police precinct and investigated abuses committed by government supporters. In 2001, war veterans attacked farmers in a land grab. He attempted to investigate the complaints of the citizens and arrest the offenders but his superiors hampered his investigation. He was ordered to release suspects and close the files. In February 2002, he ordered his officers to search the government party (ZANU-PF) office, at which point he came under suspicion as an opposition party (MDC) supporter. During the run-up to the elections in March 2002, he met with MDC MPs from his area to address their security concerns in the face of government violence. When the MDC won the election, he asserts that he was threatened by the secret police who accused him of opposition sympathies.
[5] As a result of the above, the principal applicant alleges that he was transferred to the Commissioner’s pool, an office created to send those officers suspected of sympathizing with the MDC to a state of limbo without duties or command. He was worried that he could easily be made to disappear. Fearing for his life, he arranged to leave the country. Acting as secretly as possible, he was able to secure a visa, receive a lump sum payment from his pension, and depart. He arrived in the United States via South Africa and was joined there by his wife (the female applicant) in December 2003.
[6] The female applicant returned to Zimbabwe in May 2004 to be with their children. She alleges that she had hoped the situation in Zimbabwe would have gotten better. She claims that members of Zanu-PF and of the Central Intelligence Organization (CIO) told her that her husband was a spy and that she and the children would suffer the consequences. After repeated visits by “thugs” to the family home, in October 2004, she returned to the U.S. The applicants came to Canada in September 2005 and made their claim for refugee protection.
[7] The applicants’ refugee claim was heard by the Board on January 10, 2006. The principal applicant was informed by the Board that exclusion and credibility were at issue. Minister’s counsel did not appear at the hearing.
Decision of the Board
[8] The principal applicant’s claim for refugee protection was refused on the ground that he was excluded under Article 1F(a) of the Convention (pursuant to s. 98 of the IRPA), which provides as follows:
F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
[9] The Board stated that the evidence led it to find on a balance of probabilities that the principal applicant was a member of the Zimbabwe police force; that the same police force, along with other security forces, perpetuated crimes against humanity in a widespread and systematic fashion; that the principal applicant was deployed to carry out such crimes and that he indeed engaged in acts of torture; that even if he did not personally engage in such acts he, by knowledge of them, was complicit, in that he did not remove himself from his occupation when he became aware of such crimes against humanity.
[10] Indeed, the Board found that the principal applicant should have left the police force at the first opportunity available, finding that it was not reasonable that the principal applicant continued to work in a police force that had committed human rights abuses, tortured farmers and opposition party members and civilians, only leaving when he received his pension. Noting that it also had “separate and serious credibility concerns”, the Board found that if the principal applicant’s evidence was to be believed regarding the adverse attention he had drawn “since 2001”, it was “implausible that his perceived sedition” would not have resulted in his immediate dismissal, pointing to documentary evidence in this regard that indicated that the army and the police were purging opposition supporters from their ranks.
[11] That being said, the Board recognized that a claimant’s sworn testimony is presumed to be true, unless there is reason to doubt its truthfulness. In this regard, the Board noted that the “principal claimant’s own testimony is that on numerous occasions when he tried to investigate the offences committed by the Zanu-PF he was ordered to release the individuals and it was since then that he was not only not dismissed but also got promoted, allowed to retire and allowed to leave the country.” In light of all of this, the Board did not believe that the CIO suddenly began threatening the principal applicant and his family. The Board concluded on a balance of probabilities that the principal applicant had not attracted the attention of the authorities, was not perceived as an opponent of the regime, and was not perceived as a supporter of the MDC.
[12] The Board went on to find that as the principal applicant was able to access his pension, he was in good standing with the police. It concluded that if he were truly considered an opponent, he would have been dealt with differently, citing the fact that the documentary evidence was “full of the actions and the brutalities of the authorities towards individuals who betrayed the regime”. The Board found that this further strengthened its conclusion that the principal applicant had never been targeted or received threats to his life from Zanu-PF or the CIO.
[13] The Board additionally found that the documentary evidence was quite specific about the crimes against humanity for which there would be serious reasons for considering the principal applicant had committed or had been complicit in. A considerable number of examples of human rights abuses are outlined in the Board’s decision from existing country information reports, the most specific reference being to the land grab operation conducted by war veterans, which received government support. The Board noted for example that the documentary evidence showed that the police force was integral to the policy of the Mugabe government to harass, intimidate and if necessary, kill white farmers if they resisted giving up their land, and that these crimes against humanity were perpetuated in a widespread and systematic way. Indeed, the Board found that if the principal applicant had not obeyed as he was instructed in order to commit crimes against humanity, he would have been dealt with and dismissed from his duties.
[14] The Board also dismissed the claim made by the female applicant. The Board drew an adverse inference from the female applicant re-availment, finding it constituted behaviour inconsistent with a well-founded fear of persecution, a fear of death, or a fear of cruel and unusual treatment or punishment. In light of the negative credibility findings with respect to her husband’s claim, the Board further found that there was not a reasonable chance that the female claimant would be persecuted if she were to return to Zimbabwe, and that she was not a person in need of protection.
Standard of review
[15] The Federal Court of Appeal in Harb v. Canada (Minister of Citizenship and Immigration), 2003 FCA 39 at paragraph 14 [Harb] dealt with exclusion under Article 1F(a) of the Refugee Convention. The Court of Appeal found that to the extent the issues raised are findings of fact, they are to be reviewed on a standard of patent unreasonableness; where the question is one of mixed fact and law, they “can only be reviewed if they are unreasonable”; to the extent that they raise a question of pure law alone, such as the interpretation of the exclusion clause, “the findings can be reviewed if they are erroneous” i.e. the standard of correctness.
[16] Indeed, as indicated in Kasturiarachchi v. Canada (Minister of Citizenship and Immigration), 2006 FC 295 at paragraph 12 [Kasturiarachchi], the assessment of the Board’s findings of facts is on the basis of the patently unreasonable standard; whereas the “question as to whether the facts, as found, establish that the individual was complicit in crimes against humanity is reviewable on a standard of reasonableness”. In this regard, when assessing whether a decision satisfies the reasonableness standard, the question is whether the reasons, when taken as a whole, are tenable as support for the decision: Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 at paras. 55-56 (see also Chowdhury v. Canada (Minister of Citizenship and Immigration), 2006 FC 139 at para. 13; Shrestha v. Canada (Minister of Citizenship and Immigration), 2002 FCT 887 at paras. 10 and 12 ; and Valère v. Canada (Minister of Citizenship and Immigration), 2005 FC 524 at para. 12).
Credibility of Principal Applicant
[17] The principal applicant takes issue with the following findings of fact made by the Board.
[18] First, the Board erred with regards to two important dates. The Board incorrectly stated that the principal applicant had started being threatened by the authorities in 2001 (tribunal record, pages 7‑8) and that he left the country in March 2003. Though his investigations had been interfered with earlier, which he said frustrated him, he was not in fact threatened and investigated until March 2002, after he had ordered his men to search the ZANU-PF party offices and the MDC had won the election in his district. In May 2002, he was removed from his post and transferred to another precinct; in August 2002 he was transferred to the “Commissioner’s pool” and went into hiding; and in November 2002, he fled Zimbabwe. The principal applicant highlights that these differences in dates are important, because the correct dates demonstrate that once he was identified as a threat, the authorities acted quickly.
[19] Second, the Board’s conclusion that it was implausible that the principal applicant’s actions would have resulted in anything other than dismissal is patently unreasonable, particularly in light of the fact that the Board acknowledges that the Commissioner’s pool had been “established to send those officers [suspected] of sympathizing with the MDC to a state of limbo without duties or command” (tribunal record, page 12).
[20] Third, the conclusion of the Board that the principal applicant was “not only not dismissed but also got promoted” (tribunal record, page 8) is also patently unreasonable. The principal applicant states there was no evidence before the Board to indicate such a promotion. The applicant highlights that this reference is made with respect to the period 2001-2002. The applicant only held two positions during this time, Commander (January-May 2001) and Deputy Officer Commanding (May 2001-August 2002). There was no evidence before the Board that the transfer from the first to the second entailed a promotion or any “increased responsibility”. There is a reference to the fact that the principal applicant was made “Deputy Constituency Commander” for his constituency during the March 2002 election, but this designation is given automatically to all superintendents during an election period, as explained in paragraph 2 of the affidavit submitted by the principal applicant with the present application.
[21] Fourth, the principal applicant states that he resigned in a clandestine fashion and that his resignation was done quickly and quietly. The principal applicant also notes that the Pensions Office is a separate department that must not have been aware he was under investigation and that the police were unaware that he was withdrawing his pension. Therefore, the Board’s assertion that he was allowed to retire is patently unreasonable.
[22] Fifth, the Board’s assertion that he was allowed to leave the country, as it was actually a carefully planned escape, is also patently unreasonable.
[23] In my opinion, these various grievances are unfounded and cannot succeed. The findings made by the Board are based on the evidence and are not patently unreasonable. In particular, I find that the Board made no reviewable error in finding that the principal applicant had received adverse attention from the authorities in 2001, because the principal applicant had been allegedly told twice that year to stop investigations. With respect to the applicant’s assertion that the authorities moved quickly to threaten, investigate and isolate him, the evidence indicates otherwise. The applicant testified that as early as 2001, when he was stationed in Kwe-Kwe, he was under suspicion of having MDC sympathies (tribunal record, page 363). Despite this, and the fact that he was allegedly threatened in 2002, he did not leave the country, quit his job or get fired. He did not “resign” until August 2002, the same month he was allegedly moved to the Commissioner’s Pool (tribunal record, pages 384-385).
[24] I also note that the evidence is not consistent with the principal applicant’s assertion that he suffered consequences from his alleged investigation into criminal activities of the Zanu-PF. He held several senior-ranking positions and was given increased responsibilities during the time period in which crimes against humanity were taking place. Therefore, it was not patently unreasonable for the Board to have considered this fact. Indeed, as evidenced by the information set out in his Personal Information Form (PIF), the principal applicant had received a number of promotions and had enjoyed great mobility throughout his career. With respect to the finding that the principal applicant was “allowed to retire”, given that the principal applicant was eligible for retirement as of June 1999, turned in his equipment and received his pension and benefits, this characterization by the Board is not patently unreasonable, as there was evidence indicating that those suspected of being MDC sympathizers were denied such benefits. Aside from the principal applicant stating he had to obtain his pension in a “clandestine” manner, there is no evidence that the normal procedure was not followed. It was not unreasonable for the Board to conclude that the principal applicant had left the force in good standing.
[25] Findings regarding credibility are quintessentially findings of fact. The question, therefore, is not whether the reasons of the Board are error-free, but rather, the question is whether or not the conclusions of the Board can be said to have been made without regard to the evidence, in a perverse and capricious manner. Moreover, the Board’s decision has to be read as a whole and the alleged errors are not determinative. Even if I were to accept that the Board erred with respect to the principal applicant’s fear of persecution, as explained below, the Board’s conclusion that the principal applicant was complicit with crimes against humanity is reasonable.
Exclusion of Principal Applicant
[26] The principal applicant questions the legality of its exclusion under Article 1F(a) of the Convention on a number of grounds that can be summarized as follows.
[27] First, the principal applicant argues that there is no evidence supporting the finding that he has been personally engaged in torture or has committed crimes against humanity. He challenges the reasonableness of the assumption made by the Board that “if the principal claimant did not obey as he was instructed in order to commit crimes against humanity, he would have been dealt with and dismissed from his duties as the regime had been doing” (tribunal record, page 10). The principal applicant points to the fact that there was no evidence that the applicant was ever “instructed” to commit such abuses, nor did the Board identify any reason for believing that a person of the applicant’s rank and seniority would ever have received such an order.
[28] Second, the principal applicant argues that although the Board noted that the abuses by the police in Zimbabwe are widespread and systematic, it did not find that the Zimbabwean police is an organization with a “limited, brutal purpose” such that mere membership would be sufficient to establish an officer’s complicity in torture or crimes against humanity. The Board therefore cannot base its findings on the mere fact that the applicant was a police officer for 28 years: Ramirez v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 109 at para. 16 (F.C.A.).
[29] Third, the principal applicant argues that the Board’s reasons do not support a finding of complicity. With respect to the Board’s finding that the applicant had said he did not leave because he did not want to leave his job (tribunal record, page 6), the principal applicant points out that this was not the entirety of his evidence. He had also explained that he had sworn an oath to maintain the rule of law and to safeguard human rights and that he saw it as his duty to stay on the force and bring the perpetrators to justice. Until he felt that his own life was in danger, he had always believed that he could continue to do his duties. He asserts that the Board did not consider this explanation (Applicant’s record at p. 36, lines 231-232 (PIF); Applicant’s record at p. 127). Instead, the Board drew the erroneous conclusion that he left when he received his pension (tribunal record, page 7). In this regard, the principal applicant points out that by the time he left the police force, he had been eligible for his pension for several years. He argues that his reasons for staying on the police force demonstrate an evident lack of complicity and that the Board failed to even turn its mind to this issue.
[30] Fourth, the principal applicant also notes that the Board has focused entirely on his knowledge of the crimes being committed and his failure to leave the force earlier. The principal applicant highlights that although the fact that a claimant has a high rank within an organization that commits crimes against humanity may make the case for a finding of complicity stronger, the analysis cannot end there. At bottom, complicity “rests…on the existence of a shared common purpose” with the perpetrators: Ramirez, above, at para. 18. The principal applicant argues that the evidence overwhelmingly indicates that the applicant did not have a shared common purpose. He points out that he had provided evidence that he attempted to stop the atrocities and eventually resigned his post (applicant’s record, pages 89-90).
[31] The Board must be satisfied that there are “serious reasons for considering” that a claimant should be excluded from claiming refugee status. In practice, this means that the Board must be satisfied that the evidence demonstrates “something more than suspicion or conjecture, but something less than proof on a balance of probabilities” (Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 at para. 18 (F.C.A.) [Sivakumar]). Indeed, this lower than usual standard of proof reflects Canada’s and the international community’s resolve to ensure that war criminals are denied safe havens (see also Torres Rubianes v. Canada (Minister of Citizenship and Immigration), 2006 FC 1140 at para. 3 [Torres Rubianes]).
[32] It is clear from the reasons of the Board that it was “of the opinion that if the principal claimant did not obey as he was instructed in order to commit crimes against humanity, he would have been dealt with and dismissed from his duties as the regime has been doing” (tribunal record, page 10). The Board further stated that it found “the documentary evidence quite specific and clear about crimes against humanity for which there would be serious reasons for considering the principal claimant has committed or been complicit in” (tribunal record, page 10).
[33] In its decision, the Board notes that the Amnesty International reports that human rights violations are primarily committed by the Zimbabwe security forces (which includes the civil and military police and the CIO), “which operate with the consent and acquiescence of the state and are supported by the state with resources and public encouragement”. Furthermore, the U.S. Department of State Report indicates that the Zimbabwean government provided material support to war veterans, who occupied commercial farms and in some cases killed, tortured, beat and abused farm owners (the land grab). Security forces also tortured, beat and abused persons. Indeed, according to the documentary evidence, in some cases, the army and the police provided transportation and other logistical support. There is evidence of the police firing at crowds of demonstrators during food riots. There is also evidence of persons being killed and tortured while in police detention. The documentary evidence shows that “police force is integral to the two deadly policies of the Mugabe Government [to] harass, intimidate and if necessary, kill white farmers if they resist giving up their land.”
[34] Referring to Sivakumar, the Board concluded that “[t]hese crimes against humanity are perpetuated in a widespread and systematic way” (tribunal record at p. 12). The Board then concluded on a balance of probabilities that the “principal claimant was a member of Zimbabwe Police Force; that the same police force along with other Security Forces perpetuate crimes against humanity in a widespread and systematic fashion; that the claimant was deployed to carry out such crime (sic) and that he indeed engaged in acts of torture” (tribunal record at p. 13) [Emphasis added].
[35] The principal applicant does not dispute the fact that the Zimbabwe police have engaged in crimes against humanity, or that the principal applicant was a member of the police force for 28 years. However, the principal applicant disputes the assumption made by the Board that he personally committed such crimes.
[36] It is crucial that in making a decision to exclude under Article 1F(a), the Board provide findings of fact as to specific crimes against humanity that a particular claimant is alleged to have committed. As was noted by the Federal Court of Appeal in Sivakumar:
The importance of providing findings of fact as to specific crimes against humanity which the refugee claimant is alleged to have committed cannot be underestimated in a case such as this where the Refugee Division determined that the claimant has a well-founded fear of persecution at the hands of the Sri Lankan government. For example, the Amnesty International Report of 1989 indicates that the Sri Lankan government is responsible for arbitrary arrest and detention without charge or trial, "disappearances", torture, death in custody, and extrajudicial killings. Given the seriousness of the possible consequences of the denial of the appellant's claim on the basis of section F(a) of Article 1 of the Convention to the appellant and the relatively low standard of proof required of the Minister, it is crucial that the Refugee Division set out in its reasons those crimes against humanity for which there are serious reasons to consider that a claimant has committed them. In failing to make the required findings of fact, I believe that the Refugee Division can be said to have made an error of law [Emphasis added].
[37] In the present case, there is nothing in the reasons that outlines the specific nature of the acts that the applicant is stated to have committed. It was simply not enough for the Board to have serious reasons for considering that the principal applicant had committed some kind of crimes against humanity in light of his role or position with the police. If the Board’s analysis had ended here, the decision would have had to have been quashed. However, it did not however end there.
[38] The Board’s analysis focused primarily on complicity. It must be remembered that once the test for complicity is met, exclusion applies even if the specific acts committed by a claimant himself are not crimes against humanity: Harb, above, at para. 11. Furthermore, the Court may uphold the decision of the Refugee Division to exclude, despite the errors committed by the Board, if "on the basis of the correct approach, no properly instructed tribunal could have come to a different conclusion": Ramirez, above, at para. 32; Sivakumar, above, at para. 34.
[39] Since the Board did not find that the Zimbabwean police force was an organization with a “limited, brutal purpose”, the mere fact that the principal applicant was a police officer was not sufficient to demonstrate complicity in war crimes: Ardila v. Canada (Minister of Citizenship and Immigration), 2005 FC 1518 [Ardila]; Valère, above, at para. 21. Evidence of knowing participation is therefore required. A person is complicit if this person contributes directly or indirectly to this organization or makes these activities possible while being aware of the activities of the organization: Bazargan v. Canada (Minister of Citizenship and Immigration) (1996), 205 N.R. 282 at para. 11 (F.C.A); Sumaida v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 66 at paras. 31-32 (F.C.A); Harb, above, at para. 11 (F.C.A.).
[40] Even though a claimant has not personally perpetrated the acts himself or herself, the tolerance of such crimes is sufficient to be held liable (Fabela v. Canada (Minister of Citizenship and Immigration), 2005 FC 1028 at para. 19). In Sivakumar, the complicity of a person who can be characterized as "a leader" of the organization guilty of international crimes was considered by Justice Linden in these terms at pages 440 and 442:
Bearing in mind that each case must be decided on its facts, the closer one is to being a leader rather than an ordinary member, the more likely it is that an inference will be drawn that one knew of the crime and shared the organization's purpose in committing that crime. Thus, remaining in an organization in a leadership position with knowledge that the organization was responsible for crimes against humanity may constitute complicity.
... [T]he closer one is to a position of leadership or command within an organization, the easier it will be to draw an inference of awareness of the crimes and participation in the plan to commit the crimes.
[41] Similarly, as highlighted in Baqri v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1096 at para. 28 “[a] leadership position, while not necessarily justifying a conclusion of complicity, may support the inference of a knowing participation in the organization's plan and purpose to commit the international crimes”. As noted by the applicant however, this issue is not determinative.
[42] Madam Justice Reed’s synthesis of the principles presented in the cases of Ramirez, Sivakumar, and Moreno in Penate v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 79 at 84-85 (F.C.T.D.) also offers useful guidance on this point:
The Ramirez, Moreno, and Sivakumar cases all deal with the degree or type of participation which will constitute complicity. Those cases have established that mere membership in an organization which from time to time commits international offences is not normally sufficient to bring one into the category of an accomplice. At the same time, if the organization is principally directed to a limited, brutal purpose, such as a secret police activity, mere membership may indeed meet the requirements of personal and knowing participation. The cases also establish that mere presence at the scene of an offence, for example, as a bystander with no intrinsic connection with the persecuting group will not amount to personal involvement. Physical presence together with other factors may however qualify as a personal and knowing participation.
As I understand the jurisprudence, it is that a person who is a member of the persecuting group and who has knowledge that activities are being committed by the group and who neither takes steps to prevent them from occurring (if he has the power to do so) nor disengages himself from the group at the earliest opportunity (consistent with safety for himself) but who lends his active support to the group will be considered to be an accomplice. A shared common purpose will be considered to exist. I note that the situation envisaged by this jurisprudence is not one in which isolated incidents of international offences have occurred but where the commission of such offences is a continuous and regular part of the operation [Emphasis added].
[43] This statement has been followed more recently (see for example: Zazai v. Canada (Minister of Citizenship and Immigration), 2004 FC 1356 at para. 28, aff’d 2005 FCA 303; Kasturiarachchi, above, at para. 16.
[44] That being said, it is clear from the reasons of the Board that all six factors identified by the Federal Court of Appeal in Sivakumar for determining that there are “serious reasons to believe” that an individual has been complicit in crimes against humanity and thus has the requisite mens rea are present. Therefore, the Board’s decision to exclude the principal applicant on the ground of complicity is reasonable in the present circumstances.
[45] First, with respect to the nature of the organization, the Zimbabwean police force committed crimes against humanity in a widespread and systematic fashion and multiple examples were referenced by the Board (tribunal record, pages 7, 10-12). Indeed, the Board found that the documentary evidence was “quite specific and clear” that this organization had committed crimes against humanity during the 28 years the applicant had served (tribunal record, page 10).
[46] Second, as to the method of recruitment, the principal applicant joined the police force voluntarily in 1974, committing to 25 years of service. This ended in June 1999. The principal applicant voluntarily stayed on for another three years.
[47] Third, with respect to his position and rank in the organization, the principal applicant held progressively senior positions and responsibilities throughout his career, as evidenced by the information set out in his PIF. Indeed, the principal applicant does not dispute that he was a senior officer, whatever title he had. Accordingly, it was not patently unreasonable for the Board to infer from this information that the principal applicant had received a number of promotions and had enjoyed great mobility throughout his career.
[48] Fourth, as to the length of time he spent in the organization, the principal applicant was a police officer for 28 years. Therefore, it was not patently unreasonable for the Board to find that such a length of time does not preclude an inference of knowing participation and shared common knowledge. The respondent pointed out that the principal applicant in fact admitted to knowing that human rights abuses were being perpetrated by fellow officers (Bedoya v. Canada (Minister of Citizenship and Immigration), 2005 FC 1092 at para. 25 [Bedoya]).
[49]
Fifth,
as to whether there was an opportunity to leave, the principal applicant does
not dispute that he only resigned from the police in 2003, after he was
allegedly threatened by a superior. The principal applicant never indicated he
was not permitted to leave and he testified he was never tempted to leave before
2002, as he did not feel that he was in danger until then (tribunal record,
pages 356-8, 405). The fact he was not dismissed also suggests he was complicit
(tribunal record, pages 8, 10, 115). Further, given that the principal
applicant had allegedly been thwarted from doing his job for years, it was not
patently unreasonable for the Board to draw an adverse inference from the
principal applicant’s failure to leave the police force sooner (Torres Rubianes,
above, at para 18; Bedoya, above, at para. 26).
[50] Sixth, with respect to his knowledge of the organization’s atrocities, the principal applicant admitted to knowing that the CIO and the police were supporting the illegal land grabs and that they were harassing, intimidating, torturing and killing farmers, opposition party members and civilians. He held senior positions for the last ten years of his employment (tribunal record, pages 31, 360). In this regard, a simple denial of common purpose, even if credible, “cannot suffice to negate the presence of common purpose” (Harb, above, at para. 27). A claimant’s actions can be more revealing. It is otherwise too simple to say that one did not share the same purpose and attempt to distance oneself from the actions of the offending organization (see also Shakarabi v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. 444 at para. 25; Ali v. Canada (Solicitor General), 2005 FC 1306 at para. 2).
[51] This brings us to examine the legality of the Board’s decision with respect to the claim made by the female applicant.
Claim of Female Applicant
[52] The female applicant asserts that the Board’s reasons for rejecting her claim are insufficient. She had explained to the Board that she had returned to Zimbabwe to be with her children, and because she had hoped that after five months, the situation had improved. This explanation was reasonable and could not be arbitrarily dismissed by the Board.
[53] The female applicant further asserts that while a lack of subjective fear may be relevant to a claim under section 96 of the IRPA, it is not relevant under section 97 of same, and the Board is in error if it rejects a claim on this basis (Shah v. Canada (Minister of Citizenship and Immigration), 2003 FC 1121 at para. 16; Ghasemian v. Canada (Minister of Citizenship and Immigration), 2003 FC 1266 at paras. 18-19).
[54] These arguments cannot succeed in the present case.
[55] The Board had already found that the principal applicant’s claim that he was being targeted by the CIO or Zanu-PF was implausible. That finding was not patently unreasonable.
[56] Subjective fear is certainly a relevant factor to consider in a section 97 analysis. While it may not be determinative, subjective fear relates to the personalized risk and the basis for holding that objectively, such a risk exists. In light of the fact that the female applicant’s claim was based entirely on the fear of being targeted in light of the activities of her husband, which were not considered plausible, the Board properly conducted its analysis (Mengistu v. Canada (Minister of Citizenship and Immigration), 2004 FC 901 at para. 16).
[57] It was also open to the Board to reject the explanations of the female applicant.
[58] Moreover, the Board was entitled to draw an adverse inference from the fact that the applicant re-availed herself of the protection of Zimbabwe. If she had truly feared for her life, she would not have returned: Shaikh v. Canada (Minister of Citizenship and Immigration), 2005 FC 74 at paras. 62-63; Bogus v. Canada (Minister of Employment and Immigration), [1993] 71 F.T.R. 260, aff’d [1996] F.C.J. No. 1220 (F.C.A.)(QL); Ali v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 558 at para. 13 (F.C.T.D)(QL).
Psychological Report
[59] I have also considered the applicants’ allegation that the Board failed to consider the psychological report that confirms that the principal applicant suffered from post-traumatic stress disorder as a result of his persecution in Zimbabwe. They contend that this report supports their story. The applicants raised this issue almost as a side issue. In this regard, the applicants point out that although the Board does not have an obligation to refer to every piece of evidence, where the evidence is relevant, failure to refer to it may lead the Court to infer that the panel ignored the evidence: Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (F.C.T.D.) at paras. 27-28; Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.); Bains v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 497 (F.C.T.D.).
[60] The psychological report merely concludes that the principal applicant suffers from post-traumatic stress disorder as a result of his past experiences. This report cannot be used in this case as evidence to corroborate the allegations made by the applicants with respect to their fear of persecution. Although there is no mention made of it in the Board’s reasons, in view of the negative credibility findings made by the Board, which are being upheld by the Court, the alleged omission does not constitute a reviewable error in the present case.
Conclusion
[61] For the reasons mentioned above, the present judicial review application must fail. No question of general importance has been raised by counsel and none is raised in this case.
ORDER
THIS COURT ORDERS that the application for judicial review be dismissed. No question is certified.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1451-06
STYLE OF CAUSE: MOSES JERRY WILLIAM DZIMBA ET AL. v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: April 24, 2007
REASONS FOR ORDER: MARTINEAU, J
APPEARANCES:
Hilary Evans Cameron FOR APPLICANTS
SOLICITORS OF RECORD:
VanderVennen Lehrer
Barristers and Solicitors FOR APPLICANTS
Toronto, Ontario
John H. Sims, QC
Deputy Attorney General of Canada FOR RESPONDENT
Toronto, Ontario