Federal Court Decisions

Date: 20061127

Docket: IMM-1976-06

Citation: 2006 FC 1433

Ottawa, Ontario, November 27, 2006

PRESENT:     The Honourable Mr. Justice Phelan

BETWEEN:

MWAPE NDINA BOLOGNESE NKOLE

Applicant

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR JUDGMENT AND JUDGMENT

[1]               The Applicant, a Zambian citizen, alleged that if she were returned home, she would be forced to undergo an additional female circumcision and forced into a marriage.  In addition, she alleged that her parents would torture or kill her because she shamed them by marrying a white man in Canada. This is the judicial review of the Immigration and Refugee Board’s (Board) decision denying her refugee claim.

[2]               The Board held that her claims of forced circumcision and possible torture and death were not credible. On the issue of forced marriage, the Board found that the Applicant was no ordinary Zambian woman; she comes from a privileged and reasonably well-to-do background, she has 15 years’ education, previous work experience and empowerment counselling. In light of her personal circumstances, she did not have a well-founded fear of persecution.

[3]               The Applicant only takes issue in this judicial review with the finding as to forced marriage. In particular, the Applicant says the Board did not focus sufficient attention on the issue of state protection and the reports of the imposition of customary law and the existence of judicial corruption.

[4]               As to state protection, I adopt Justice Tremblay-Lamer’s analysis and conclusion in Chaves v. Canada (Minister of Citizenship and Immigration), 2005 FC 193, [2005] F.C.J. No. 232 (QL) that the standard of review is reasonableness. As to other findings of fact, particularly that she is an “independent woman”, the standard is patent unreasonableness (Aguebor v. (Canada) Minister of Employment and Immigration, [1993] F.C.J. No. 732 (QL))

[5]               The finding that the Applicant is an “independent woman” and therefore unlikely to be forced into an unwanted marriage is grounded in her own admission that she is such a woman in addition to other aspects of her life including her education, travel and living in a developed country. That conclusion also underpins the inconsistent submission that her family, who allegedly would torture and kill her or otherwise shun her, would at the same time force her into a marriage. There is nothing patently unreasonable about the Board’s finding on this issue.

[6]               On the issue of state protection as regards judicial corruption, the Board did not undertake an in depth analysis of this issue. This is because the Applicant never raised the issue of judicial corruption as it would impact her. There was only one reference to general corruption in her Personal Information Form. It is not the Board’s task to analyse an issue not relied upon by an applicant.

[7]               Therefore, this judicial review will be dismissed. There is no question for certification.

JUDGMENT

            IT IS ORDERED THAT this application for judicial review will be dismissed.

“Michael L. Phelan”

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          IMM-1976-06

STYLE OF CAUSE:                          MWAPE NDINA BOLOGNESE NKOLE

                                                            and

                                                            THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                    Vancouver, British Columbia

DATE OF HEARING:                      November 22, 2006

REASONS FOR JUDGMENT:       Phelan J.

DATED:                                             November 27, 2006

APPEARANCES:

SOLICITORS OF RECORD: