IMM-1907-96
B E T W E E N:
UNITY GWANZURA
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HEALD, D.J.:
This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") that the applicant is not a Convention refugee.
The Facts
The applicant is a citizen of Zimbabwe who claims a well-founded fear of persecution because of her membership in a particular social group. The ratio of the decision a quo is that the record herein did not establish adequate evidence with respect to a failure of state protection.
The applicant's sister came to Canada to escape her marriage to one Joseph Kambasha. Pursuant to customary law in Zimbabwe and pressure from her parents, the applicant became a replacement wife to Kambasha in January of 1992. Kambasha was considerably older than the applicant and abused her, physically and sexually. She was under the control and supervision of her husband at all times. The applicant attempted to escape from her husband a number of times. However, on each occasion, her family returned her to Kambasha. She complained to the local police station. These complaints were ignored and she was advised to return to her husband. In March of 1993, she attempted escape to Zambia. That attempt failed and she was returned to Zimbabwe by the Zambian authorities.
The applicant is well educated by Zimbabwean standards. She was employed full time as a secretary which employment continued until her escape to Canada. In that employment she was well paid by local standards.
In January of 1995, Kambasha stabbed the applicant which necessitated her hospitalisation. Upon release, she lived with a cousin in Harare. On May 28, 1995, she fled to Canada via Portugal and the United States.
The Decision of the Board
The Board observed that women in forced marriages and in abusive situations may possibly fall within a particular social group for the purpose of a refugee determination. It was also conceded that the applicant had been "forced under customary law into a marriage from which she wished to escape, and that she found the situation untenable and traumatic"1. However, in respect of the applicant's testimony the Board observed: "... the claimant exaggerated the abuse and surveillance2 by her husband to which she was subjected and, therefore, the seriousness of the harm she feared, and misrepresented her ability to remove herself from this situation."
The Board further concluded that, in fact, the applicant had considerable independence and that she unreasonably delayed leaving Kambasha. This conclusion was based on the following factors:
| (a) she earned a "very princely salary"; |
| (b) she was able to keep her passport and to obtain South African visas on at least two occasions; |
| (c) she was able to keep her own salary in a country where a married woman's salary is often paid directly to the husband; |
| (d) she did not fear complaining about her husband to the local police on several occasions; and |
| (e) she was able to visit a lawyer and make arrangements for her two trips outside the country. |
The Board further concluded that the applicant had unreasonably delayed her departure from Zimbabwe given "the dangerous and abusive situation in which she found herself.
It was noted that she had a valid passport, sufficient money to finance her trip and a sister in Canada, a country for which no visa is required by a citizen of Zimbabwe. The Board concluded:
| Her failure to remove herself from the abusive situation in which she allegedly found herself, given the opportunities she had in this respect ... is inconsistent with her testimony with regard to the serious harm she allegedly suffered and fears at the hands of her husband, and is not the action of a reasonable person in the situation the claimant alleged. |
Issues
| 1. Did the Board commit reviewable error in finding that the applicant had not established an absence of state protection? |
| 2. Did the Board commit reviewable error in concluding that the applicant had unreasonably delayed her departure from Zimbabwe? |
State protection
At the refugee hearing, two forms of persecution were suggested. The first was the direct abuse by her husband Kambasha which included the stabbing episode. The second was the social and psychological pressure to retain the marriage because of traditional laws and customs.
The Board concluded that the applicant had failed to establish that the available legal protection was ineffective. I agree that this conclusion was reasonably open to the Board. Zimbabwe is a country in transition. The practice of wife substitution has not been banned outright. The Board accepted the view that customary and traditional law is still extant in Zimbabwe. This view is consistent with the relevant documentation. Accordingly, I conclude that the Board did not commit reviewable error in finding that there was not an absence of state protection at all relevant times.
Unreasonable Delay
On this issue the Board commented on the applicant's delay "in leaving the dangerous and abusive situation in which she allegedly found herself3. The Board commented that the claimant had ample opportunity to leave Zimbabwe between 1992 and 1995 when she eventually left for Canada. The Board noted: "She had a valid passport, sufficient money to finance her trip and a sister in Canada, a country for which no visa is required by a Zimbabwean citizen ..."4. Based on these facts, the Board concluded: "Her failure to remove herself form the abusive situation in which she allegedly found herself, given the opportunities she had in this respect as indicated above, is inconsistent with her testimony with regard to the serious harm she allegedly suffered and fears at the hands of her husband, and is not the action of a reasonable person in the situation the claimant alleged"5.
In my view, this conclusion was reasonably open to the Board on this record and should not be disturbed.
Conclusion
Since I have concluded for the reasons given supra, that the Board did not commit reviewable error in the circumstances of this case, it follows that the within application for judicial review must be dismissed.
Certification
In my view, no basis has been established on this record, for the certification of a serious question of general importance pursuant to Section 83 of the Immigration Act. Accordingly, no question will be certified.
"Darrel V. Heald"
Judge
Toronto, Ontario
July 10, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1907-96
STYLE OF CAUSE: UNITY GWANZURA
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: JULY 9, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: HEALD, D.J.
DATED: JULY 10, 1997
APPEARANCES:
Ms. Unity Gwanzura
For the Applicant
Ms. Ann Margaret Oberst
For the Respondent
SOLICITORS OF RECORD:
4 Lisa Street
Apt. 1414
Brampton, Ontario
L6T 4B6
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No.: IMM-1907-96
Between:
UNITY GWANZURA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
__________________
1 Applicant's Application Record - page 12.
2 Applicant's Application Record - page 12.
3 Applicant's Application Record - page 13.
4 Applicant's Application Record - page 13.
5 Applicant's Application Record - pages 13 and 14.