Date: 20080221
Docket: IMM-5748-06
Citation: 2008 FC 233
Ottawa, Ontario, February 21,
2008
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
LOLADE
TEMITOPE ADETOLA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Ms.
Lolande Temitope Adetola (the “Applicant”) seeks judicial review of the
decision of the Immigration and Refugee Board, Refugee Protection Division (the
“Board”), dated October 2, 2006. In its decision, the Board determined that the
Applicant is neither a Convention refugee nor a person in need of protection
within the meaning of section 96 and subsection 97(1), respectively, of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA” or “the Act”).
[2]
The
Applicant, a citizen of Nigeria, claims protection in Canada on the basis
of an alleged forced marriage and, conjunctively or alternatively, abuse at the
hands of a boyfriend. The Applicant allegedly entered Canada on November
1, 2005. She made an inland refugee claim on November 2, 2006. On January 19,
2006, the Applicant gave birth to a child in Canada.
[3]
In
its decision, the Board made negative credibility findings expressing doubt
that the Applicant was at risk of being forced into an arranged marriage. It
commented on the failure of the Applicant to seek state protection from the
risk of abuse from her boyfriend.
[4]
The
Board also expressed doubt as to the reliability of this Applicant’s evidence
concerning her entry into Canada. It found that the Applicant had failed to
show that she was in Nigeria during the period of
cohabitation with her boyfriend.
[5]
The
Board found that the Applicant had made no efforts to seek state protection in Nigeria. It also
found that even if her allegations of persecution were credible, the Applicant
had an internal flight alternative (“IFA”) available to her in Nigeria.
[6]
The
first matter to be addressed is the applicable standard of review, having
regard to a pragmatic and functional analysis. Four factors are to be
considered: the presence or absence of a privative clause; the expertise of the
tribunal; the purpose of the legislation and the nature of the question.
[7]
There
is no privative clause in the Act. No full right of appeal is provided but
judicial review is available, if leave is granted. Accordingly, the first
factor is neutral.
[8]
The
Board is a specialized tribunal and mandated to weigh the evidence submitted to
it. This factor favours deference.
[9]
The
broad purpose of the Act is to regulate the admission of immigrants into Canada and to
maintain the security of Canadian society. This involves consideration of many
interests that may be in conflict with each other. Decisions made in a
polycentric context tend to attract judicial deference.
[10]
The
final factor is the nature of the question. In this case, the question is
whether the Applicant has shown that the Board erred in making its credibility
findings. Credibility findings are similar to factual findings and attract a
high degree of deference.
[11]
Upon
balancing the four factors involved in a pragmatic and functional analysis, I
conclude that the applicable standard of review in this case is that of patent
unreasonableness.
[12]
Upon
balancing the four factors, I conclude that the appropriate standard of review
in this case is that of patent unreasonableness.
[13]
The
Board made negative credibility findings relative to the subjective basis of
the Applicant’s claim. These findings lie within the heart of the Board’s
mandate and unless the Applicant can show that such findings were made in the
absence of evidence, there is no basis for judicial intervention. In that
regard, I refer to the decision in Conkova v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 300 (F.C.T.D.).
[14]
Having
regard to the Applicant’s testimony before the Board, as well as the
documentary evidence that was before the Board, I am satisfied that the Board’s
findings meet the standard of patent unreasonableness. The Board committed no
reviewable error and this application for judicial review is dismissed.
JUDGMENT
This application for judicial
review is dismissed, there is no question for certification arising.
“E.
Heneghan”
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