Date: 20040226
Docket: IMM-5969-03
Citation: 2004 FC 291
Vancouver, British Columbia, Thursday, the 26th day of February, 2004
Present: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
HYUN CHOI, HE MIN KANG
and WEN BIN CHOI
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] He Min Kang (the "female Applicant"), is a citizen of South Korea and was born in China. Her husband, Hyun Choi (the "male Applicant") is a citizen of South Korea. They have a two-year-old son, Wen Bin Choi (the "minor Applicant"), also a citizen of South Korea. They arrived in Canada on June 18, 2001, and made Convention refugee claims three months later, on September 21, 2001. The Applicants claim to be Convention refugees or persons in need of protection owing to abuse inflicted upon the female Applicant by the male Applicant's father.
[2] By decision dated June 27, 2003, the Refugee Protection Division of the Immigration and Refugee Board (the "Board") determined that the Applicants are not Convention refugees or persons in need of protection. The Applicants seek judicial review of that decision.
Issues
[3] The Applicants raise the following issues:
1. Did the Board err in determining that the female Applicant could regain her Chinese citizenship?
2. Did the Board infringe the Applicants' rights under s. 7 of the Canadian Charter of Rights and Freedoms?
3. Did the Board base its decision concerning the existence of an Internal Flight Alternative ("IFA") on an erroneous finding of fact that it made in a perverse or capricious manner or without regard to the material before it?
Board's Decision
[4] Stated in simple terms, the Board's main conclusions were as follows:
1. The female Applicant could regain her Chinese citizenship and return to China.
2. The male Applicant and the minor Applicant are not Convention refugees or persons in need of protection and could return to South Korea.
3. If the family wished to stay together, the Applicants could return to another area of South Korea to avoid the abusive father-in-law; that is, there was an IFA available.
Analysis
Issue #1: Did the Board err in determining that the female Applicant could regain her Chinese citizenship?
[5] With respect to the issue of the female Applicant' ability to regain her Chinese citizenship, the Board found "on the balance of probabilities, that the female claimant's Chinese nationality could be readily restored to her upon application". The Applicants submit that the Board erred in this finding.
[6] The Board made a finding of fact when it determined that the female Applicant can readily re-acquire her Chinese citizenship. Although the Board made reference to articles of the Chinese Nationality Law, it did so with a view to draw a factual inference. Given the Board's expertise in making findings of fact, the Court can only intervene if it can be shown that the Board's finding was patently unreasonable, "perverse or capricious" or "without regard for the material before it" (Federal Courts Act, s. 18.1(4)(d)). This is not the case.
[7] In the present case, the Applicants have failed to point to actual obstacles standing in the way of the female Applicant re-acquiring her Chinese citizenship. More importantly, their counsel conceded, at the hearing, that, if the female Applicant applied on her own to reacquire Chinese citizenship, she might very well be granted that citizenship.
[8] The Board did not rely solely on these admissions of the Applicants' counsel but carried out a thorough review of all the evidence before it.
[9] The Chinese Nationality Law, the response from the Embassy of the People's Republic of China to the Board's information request, the fact that the female Applicant's only reason for renouncing her Chinese citizenship was her marriage to a South Korean man, and the fact that the female Applicant is regarded by the Chinese government as a "national heroine" all support a conclusion that restoration of the female Applicant's Chinese citizenship would, on a balance of probabilities, be available to her. As stated by the consular official at the Embassy of the People's Republic of China, "[b]esides holding another country's nationality, there is no general reason why a person who originally held Chinese nationality would be denied its reinstatement."
[10] Based on the evidence before it, it was reasonably open to the Board, as admitted by Applicants' counsel at the hearing, to consider the female Applicant's Convention refugee claim in reference to both South Korea and China.
Issue #2: Did the Board infringe the Applicants' rights under s. 7 of the Canadian Charter of Rights and Freedoms?
[11] The Applicants argue, in the alternative that, if the female Applicant was able to re-acquire her Chinese citizenship, she would have to return to China alone, as her son and husband only have Korean citizenship. This, in their view, would be a breach of the Applicants' s. 7 rights.
[12] The Applicants allege that the Board's decision deprives them of liberty and security of the person and that this deprivation is not in accordance with the principles of fundamental justice. In their view, by the Board's failure to incorporate the principle of family unity into the definition of a Convention refugee, their rights under s. 7 of the Charter of Rights and Freedoms (the "Charter") were violated.
[13] As no Notice of Constitutional Question was served as required by s. 57(1) of the Federal Courts Act, this Court is without jurisdiction to decide this issue.
Issue #3: Did the Board base its decision concerning the existence of an Internal Flight Alternative on an erroneous finding of fact that it made in a perverse or capricious manner or without regard to the material before it?
[14] The test for assessing the viability of an IFA is two-fold (Rasaratnam v. Canada (Minister of Employment and Immigration) [1992] 1 F.C. 706 (F.C.A.); Thirunavukkarasu v. Canada (Minister of Employment and Immigration) [1994] 1 F.C. 589). The Board must be satisfied, on a balance of probabilities, that:
1. there is no serious possibility of the claimant being persecuted in the IFA; and
2. it would not be unreasonable for the claimant to seek refuge in the IFA.
[15] In examining the issue of the availability of an IFA, the Applicants submit that the Board ignored evidence that was submitted in respect of the male Applicant's father being able to find them through the family registration system. In accordance with the principle enunciated in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (T.D.) (QL) and followed in a number of decisions of this Court, the Applicants argue that documentary evidence that is contradictory to the conclusions of the Board should be specifically addressed.
[16] Contrary to the assertion of the Applicants, the Board did not ignore evidence that contradicted its conclusions concerning the existence of an IFA. In fact, it did the opposite. The Board not only referred to, but also quoted from the letter sent to the male Applicant from his father, wherein he threatens to track down the Applicants should they return to Korea. The Board provided several reasons for assigning little weight to this letter. The Board noted that:
· even the male Applicant admitted that he places little weight on the letter;
· this is the only letter he has received from his father since he came to Canada; and
· he has since spoken several times to his father on the telephone and told him to "mind his own business".
Further, the Board found that the letter appeared "contrived to corroborate the claimants' story". Given the dismissal of the only evidence put forward by the Applicants to address the possibility of their persecution in the IFA, it was a reasonable conclusion that the Applicants would not be persecuted in the IFA. The existence of a registry whereby the Applicants could be located was irrelevant.
[17] Finally, the Board carried out, as it was required to do, an analysis of the reasonableness of a relocation to the IFA.
[18] In conclusion on this issue, the Board's finding concerning the existence of an IFA was not capricious, perverse, or made without regard to the material before it. To the contrary, the Board gave serious consideration to the alleged threats made by the agent of persecution.
Conclusion
[19] For these reasons, the application will be dismissed. The parties did not propose a question for certification. None will be certified.
ORDER
THIS COURT ORDERS that:
1. The application is dismissed.
2. No question is certified.
(Sgd.) "Judith A. Snider"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5969-03
STYLE OF CAUSE:HYUN CHOI et al.
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: February 25, 2004
REASONS FOR ORDER AND ORDER: SNIDER J.
DATED: February 26, 2004
APPEARANCES:
Ms. Nicole Hainer FOR APPLICANT
Mr. Peter Bell FOR RESPONDENT
SOLICITORS OF RECORD:
Elgin, Cannon & Associates FOR APPLICANT
Vancouver, B.C.
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
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