Date:
20100630
Docket: IMM-5625-09
Citation: 2010 FC 720
Vancouver, British Columbia, June
30, 2010
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
MIN JUNG KIM
JI HOON KIM
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicants are a mother Min Jung Kim and her minor son Ji Hoon Kim both
citizens of the euphemistically named Democratic People’s Republic of
Korea or, more simply, North Korea. They are seeking to claim refugee
protection in Canada, a claim
which was denied by a decision of a member of the Immigration and Refugee
Board, dated October 26, 2009. Judicial review of that decision is now sought
by the Applicants and for the reasons that follow I will allow this
application, set aside that decision, and require redetermination by a
different member.
[2]
The
Applicant Min Jung Kim is a single mother of North Korean ethnicity and
nationality. Her son Ji Hoon Kim was fathered by a North Korean national of
Chinese ethnicity. The father has no continuing relationship with either
Applicant. Because she is the single mother of a mixed race child, the
principal Applicant has been effectively shunned both socially and economically
in North
Korea.
She was unable to get work and consequently unable to get food through the
normal channels available in North Korea.
[3]
The
Applicants fled across the border to China where life was not much
better. Only marginal work was available; the necessities of life were provided
largely through the occasional kindness of others. Because they fled North Korea, return to
that country by the Applicants would have resulted in reprisals, even grater
hardship and possibly execution. Through the medium of persons who offer such
services, the Applicants fled China and find themselves in Canada seeking
refugee protection here.
[4]
The
record is clear that to return the Applicants to North Korea is
unthinkable. Even to return to China would expose the Applicants to great
hardship and social marginalization. The only question for consideration in the
present circumstances is whether South Korea provides refuge, and if so, under
what circumstances and does that preclude a refugee claim being successfully
made by the Applicants in Canada.
[5]
An
examination of this issue must start with consideration of the decision of the
Federal Court of Appeal in Williams v. Canada (Minister of
Citizenship and Immigration), [2005] 3 F.C.R. 429. Décary J.A. for the
Court wrote at paragraphs 19 to 23 that where the acquisition of citizenship in
another country was a matter of “mere formalities” or “within the control” of
the applicant, then the applicant will not be afforded refugee protection in Canada. He wrote:
19 It
is common ground between counsel that refugee protection will be denied where
it is shown that an applicant, at the time of the hearing, is entitled to
acquire by mere formalities the citizenship (or nationality, both words being
used interchangeably in this context) of a particular country with respect to
which he has no well-founded fear of persecution.
20 This
principle flows from a long line of jurisprudence starting with the decisions
of our Court in Canada (Attorney General) v. Ward, [1990] 2 F.C. 667 (C.A.),
and in Canada (Minister of Employment and Immigration) v. Akl (1990), 140 N.R.
323 (F.C.A.), where it was held that, if an applicant has citizenship in more
than one country, he must demonstrate a well-founded fear of persecution in
relation to each country of citizenship before he can seek asylum in a country
of which he is not a national. Our ruling in Ward was confirmed by the Supreme
Court of Canada (at paragraph 12 of these reasons) and the principle
eventually made its way into the IRPA, section 96 referring to "each of
their countries of nationality."
21 In
another decision rendered before the Supreme Court of Canada rendered its
own in Ward, Bouianova v. Canada (Minister of Employment and Immigration)
(1993), 67 F.T.R. 74, Rothstein J. (sitting then in the Trial Division of the
Federal Court of Canada) broadened the holding of our Court in Akl. He held
that if, at the time of the hearing, an applicant is entitled to acquire the
citizenship of a particular country by reason of his place of birth, and if
that acquisition could be completed by mere formalities, thereby leaving no
room for the State in question to refuse status, then the applicant is expected
to seek the protection of that State and will be denied refugee status in
Canada unless he has [page439] demonstrated that he also has a well-founded
fear of persecution in relation to that additional country of nationality.
22 I
fully endorse the reasons for judgment of Rothstein J., and in particular the
following passage at paragraph 12:
The condition of not having a country of
nationality must be one that is beyond the power of the applicant to control.
The true test, in my view, is the following: if it is
within the control of the applicant to acquire the citizenship of a country
with respect to which he has no well-founded fear of persecution, the claim for
refugee status will be denied. While words such as "acquisition of
citizenship in a non-discretionary manner" or "by mere
formalities" have been used, the test is better phrased in terms of "power
within the control of the applicant" for it encompasses all sorts of
situations, it prevents the introduction of a practice of "country
shopping" which is incompatible with the "surrogate" dimension
of international refugee protection recognized in Ward and it is not restricted,
contrary to what counsel for the respondent has suggested, to mere
technicalities such as filing appropriate documents. This "control"
test also reflects the notion which is transparent in the definition of a
refugee that the "unwillingness" of an applicant to take steps
required from him to gain state protection is fatal to his refugee claim unless
that unwillingness results from the very fear of persecution itself. Paragraph
106 of the Handbook on Procedures and Criteria for Determining Refugee Status
under the 1951 Convention an the 1967 Protocol relating to the Status of
Refugees [Geneva, 1992] emphasizes the point that whenever
"available, national protection takes precedence over international
protection," and the Supreme Court of Canada, in Ward, observed, at
page 752, that "[w]hen available, home state protection is a claimant's
sole option."
23 The
principle enunciated by Rothstein J. in Bouianova was followed and applied
ever since in [page440] Canada. Whether the citizenship of another country was
obtained at birth, by naturalization or by State succession is of no
consequence provided it is within the control of an applicant to obtain it.
(The latest pronouncements are those of Kelen J. in De Barros v. Canada (Minister of
Citizenship and Immigration), 2005 FC 283 and Snider J. in Choi v. Canada (Solicitor General), 2004 FC 291.)
[6]
This
decision requires the Board to examine the degree of control that a claimant
may have over the process of applying for citizenship in another state. I wrote
in Crast v. Canada (Minister of
Citizenship and Immigration), 2007 FC 146, [2007] F.C.J. No. 195, at
para. 24:
24 Second, the Board
does not address the issue as to the degree of control that an Applicant for
reacquisition of citizenship must have over the success of the ultimate result.
The Federal Court of Appeal in Williams indicates that if reacquisition is
merely a matter of formalities then the control is certain. Here more than mere
formalities are required, residency plus an application to a federal court is
required. The evidence indicates that the result cannot be predicated with
certainty. The Reasons of the Board as to the degree of certainty are lacking.
No indication is made that due consideration was given to the evidence. The
findings of the Board are not reasonable.
[7]
Justice
Russell of this Court more recently reviewed these matters in Canada (Minister of
Citizenship and Immigration) v. Ma, 2009 FC 779, where it appears that the
Minister (who was the Applicant in that case) wanted to push matters
further and put the onus on the claimant (Respondent) to demonstrate that it
was “more likely than not” that the citizenship claim would be rejected.
Justice Russell rejected this argument as putting an intolerable burden on a
refugee claimant. It may be within the control of a claimant to apply for
citizenship but it remains within the control of the state whether or not
to grant it. He wrote at paragraphs 117 to 120:
117 There
was evidence before the Board to demonstrate that it was not within the control
of the Respondents to acquire Chinese citizenship, which is the test dictated
by Williams. The children alone would cause them all kinds of problems and
Shirley gave evidence that she might also be subjected to forced sterilization.
118 The
Applicant wants to push this issue further to say that the Respondents should
have been required to demonstrate that it was more likely than not that, if
they applied, they would not be granted Chinese citizenship. In fact, at the refugee
hearing and as part of this application, the Applicant also argued that the
Respondents were under an obligation to show that they had applied for, and had
been refused, Chinese citizenship.
119 This
argument was, in my view, correctly rejected by the Board as being contrary to Williams.
But it does show where the Applicant wants to push this issue. In my view, to
go beyond Williams in order to do what the Applicant wants to do would impose
an intolerable burden upon people in the position of the Respondents.
120 It
is certainly within the control of the Respondents to submit an application for
Chinese citizenship but, on the evidence, it was not within the control of the
Respondents to acquire Chinese citizenship, and the evidence suggested to the
Board that they faced serious problems in doing so.
[8]
Thus,
the extent to which a refugee claimant can “control” the award of citizenship
in another country becomes a critical issue. Such an issue eventually requires
an examination of the laws, jurisprudence, practice and politics of that
country. In a perfect world such an examination would be conducted on the basis
of one or more opinions of legal professionals entitled to practice in the
relevant country and skilled in that area. These opinions are received as factual
matters but involve questions of law.
[9]
In
a less than perfect world, where a refugee claimant usually has limited funds
and resources and limited time to prepare a case, reference is made to other
sources in deciding what may be the situation in the other country. In the
present case, the Applicants were only advised a few days before the hearing
that an issue would be made as to whether they could acquire South Korean
citizenship.
[10]
The
evidence before the Board member consisted of a newspaper article, a scholarly
article, a “Response to Information Requests” and other materials. Some of this
material was referred to in the reasons given by the Board member. She found,
at paragraph 13, that the grant of citizenship for citizens of North Korea by South Korea is automatic
as it flows from the South Korean constitution.
[11]
However,
the Board member seems to have retreated from that view beginning at paragraph
15 of her Reasons where it is recognized that South Korea has a “discretion”
whether or not to grant citizenship depending on whether the applicants
“possesses the will and desire” to live in South Korea. The Board member
concluded that, nonetheless, citizenship was “automatic” at paragraph 21 of her
Reasons:
[21] The panel finds that the
evidence that an official of the South Korean embassy said that “the will and
desire” of the applicant are criteria going to a grant of citizenship does not
over-ride the evidence that the grant of citizenship is automatic. A plain
reading of the requirement that the applicant must have “expressed their
intention to be protected,” as set out above, means no more than that the
person must ask to be protected. They must express an intention; the panel
finds, as a matter of fact, that this means that the applicant has to apply.
Once they do that, then the process of automatic acceptance, as noted above, is
triggered.
[12]
Counsel
for the Minister argues that this finding must be accepted so long as it is
“reasonable.” I disagree – that finding can only be accepted if it is correct.
The right to claim citizenship in a foreign country is as I have said a matter
of the law, practice, jurisprudence, and politics of that country that is best
proved by the opinion(s) of those persons qualified in the law of that
country having expertise in that area of law. Such opinions are received in our
courts as a matter of evidence and, if the evidence comprises conflicting
opinions, then the Court must resolve the conflict. A resolution of such a
conflict can be reviewed by a higher court; however, it is not simply a
question as to whether the lower court’s determination was “reasonable.” The
“deferential” reasonableness expressed by the Supreme Court at paragraph 47 of Dunsmuir
v. New Brunswick, [2008] 1 S.C.R. 190, in the circumstances of determining
foreign law must be looked at on the basis of correctness as the Supreme Court distinguished
at paragraph 50 of Dunsmuir.
[13]
This
is not a situation where legal and factual issues are so intertwined that they
cannot be separated, as discussed in paragraph 53 of Dunsmuir. The law
of a foreign country is proved as a matter of fact, but a determination based
on such facts is not intertwined in the manner described at paragraph 53 of Dunsmuir.
I repeat paragraphs 47, 50 and 53:
47 Reasonableness is
a deferential standard animated by the principle that underlies the development
of the two previous standards of reasonableness: certain questions that come
before administrative tribunals do not lend themselves to one specific,
particular result. Instead, they may give rise to a number of possible,
reasonable conclusions. Tribunals have a margin of appreciation within the
range of acceptable and rational solutions. A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of [page
221] justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
. . .
50 As important as it is that courts have a
proper understanding of reasonableness review as a deferential standard,
it is also without question that the standard of correctness must be maintained
in respect of jurisdictional and some other questions of law. This promotes
just decisions and avoids inconsistent and unauthorized application of law.
When applying the correctness standard, a reviewing court will not show
deference to the decision maker’s reasoning process; it will rather undertake
its own analysis of the question. The analysis will bring the court to decide
whether it agrees with the determination of the decision maker; if not, the
court will substitute its own view and provide the correct answer. From the
outset, the court must ask whether the tribunal’s decision was correct.
. . .
53 Where
the question is one of fact, discretion or policy, deference will usually apply
automatically (Mossop, at pp. 599-600; Dr. Q, at para. 29; Suresh, at paras. 29-30). We
believe that the same standard must apply to the review of questions where the
legal and factual issues are intertwined with and cannot be readily separated.
[14]
I
note that Justice Lemieux in Khan v. Canada (Minister of
Citizenship and Immigration), 2008 FC 583 at paragraph 15 also held the
view that the standard of review should be that of correctness:
15 The
Federal Court of Appeal's decision in Williams v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 603, 2005 FCA 126 has settled
the standard of review of correctness on the question whether the existence of
an option to seek protection in one country is a valid cause for the denial of
refugee status which requires an interpretation of section 96 of the Act a
question of law of such a nature to be decided on the basis of correctness
(see also the Supreme Court of Canada's recent decision on the standard of
review in Dunsmuir v. New Brunswick, [2008] S.C.J. No. 9, 2008 SCC 9, at
paragraph 55).
[15]
In
the present case I find, on the best evidence, that it is by no means
“automatic” or “within the control” of the Applicants that they will receive
South Korean citizenship. In a “Responses to Information Requests” received by
the Board on June 3, 2008, it was stated that perhaps on a strict reading of
the south Korean constitution, North Koreans cold obtain South Korean
citizenship; however, North Koreans are not automatically accepted, a
“will and desire” to live in South Korea must be established and persons who
have “resided in a third country for an extended period of time are not
eligible (the Applicants have lived in China and Canada). The Response says:
Whether North Koreans are automatically
accepted as South Korean citizens
Both the United States (US) Department of
State’s Country Reports on Human Rights Practices for 2007 and a 19 February
2007 New York Times article state that North Korean refugees are entitled to
South Korean citizenship (US 11 Mar. 2008, Sec. 2.d; New York Times 19 Feb.
2007). The New York Times article explains that entitlement to South Korean
citizenship is grounded in Articles 2 and 3 of the “Constitution of the
Republic of Korea” (19 Feb. 2007; see also HRW Jan. 2008). The Constitution
states the following:
Article 2 [Nationality]
Nationality in the Republic of Korea is prescribed by law.
It is the duty of the State to protect
citizens abroad as prescribed by law.
Article 3 [Territory]
The territory of the Republic of Korea shall consist of the
Korean peninsula and its adjacent islands. (Korea 29 Oct. 1987)
However, according to the
Embassy Official, North Koreans are not automatically accepted as South Korean
citizens (Korea 20 May 2008). North Koreans
must demonstrate that they possess the “will and desire” to live in [South] Korea and must present themselves
to an embassy or consulate of the Republic of Korea to request protection (ibid.).
Following this, the citizenship process begins (ibid.).
The Embassy Official noted
that certain persons are not eligible for South Korean citizenship: “bogus”
defectors; persons who have resided in a third country for an extended period
of time; and international criminals such as persons who have committed murder,
aircraft hijacking, drug trafficking or terrorism (ibid.).
[16]
A
scholarly article written by two law professors appearing in the International
Journal of Refugee Law 2007, entitled “North Korean Refugees and
International Refugee Law” concludes at page 234:
Therefore, the possibility of obtaining
ROK citizenship under the South Korean Constitution and the Nationality Act
(ROK) should not preclude DPRK defectors from protection under international
refugee law.
[17]
An
assessment made by the United Nations High Commissioner for Refugees expressed
doubt as to whether all North Koreans, particularly those who have transited
through China (as the Applicants here have) would automatically receive South
Korean citizenship, each case must be considered on its merits:
As interpreted by the UNHCR, the clause
excludes most North Koreans from international protection because South Korea extends citizenship to
all North Koreans, in effect giving them dual nationality. Since most
North Koreans have no valid reason based on well-founded fear not to avail
themselves of South Korea’s protection, the UNHCR view is that availability of
this “national protection takes precedence over international protection”, even
though as a practical matter it may often not be possible for North Koreans to
avail themselves of what may be only theoretical protection from a South Korean
government far distant from the locations where protection is needed.
South Korean nationality is considered in
effect for Northerners as long as Seoul extends to them the protection normally
granted to South Koreans. South Korean nationality is further considered
effective until a request for protection has been refused or ignored. Those who
reach countries in which requests for asylum are heard are soon able to avail
themselves of protection by South Korea. However, the vast majority of North Koreans in China and some transit countries
are unable to make the initial request for protection. At great risk to their
freedom, safety and sometimes lives, thousands of North Koreans each year try
to make their way into heavily guarded diplomatic missions or across two or
more countries to request asylum or transfer to South Korea.
Even if North Koreans are considered not
to have dual nationality, each individual application for protected status must
be judged on its own merits. Not every North Korean may have a legitimate
claim. Given the North’s persecution of dissidents, however, religious
citizens, members of the “hostile” class, border crossers and even many
“criminals” have compelling cases that merit international protection.
North Koreans in China are rarely able to articulate
their legitimate claims to international protection. Accordingly, the UNHCR
recognises that “it is for the examiner, when investigating the facts of the
case, to ascertain the reason or reasons for the persecution feared and to
decide whether the definition in the 1951 Convention is met with in this
respect”. Those who may be in need of international protection should be
advised of their rights and all available options.
[18]
The
Board member erred in assuming that the question was whether North Koreans
could “automatically” obtain South Korean citizenship and that she was required
to give a yes or no answer to that question. The proper question is whether or
not, on the evidence before the Board, there is sufficient doubt as to the law,
practice, jurisprudence and politics of South Korea such
that citizenship cannot be considered as automatic or fully within the
control of these particular Applicants.
[19]
Here
the evidence is that it is by no means clear that these particular Applicants
will, in the circumstances of their case, automatically be given South Korean
citizenship or that the acquisition of such citizenship is entirely within
their control. There are considerations as to the “will and desire” to live in
South Korea that must be assessed by some official and perhaps the courts there
as well as consideration given to the length of time that the Applicants
have resided in China and Canada. There is no certainty as to the outcome.
[20]
On
the basis of Williams and the other authorities cited this application
must be allowed and returned for redetermination by a different Board member.
[21]
Counsel
for the Minister has asked that consideration be given to a certified question.
I find that this matter is not such as would merit certification.
JUDGMENT
FOR THE REASONS provided;
THIS COURT ORDERS AND
ADJUDGES that:
1. The application is
allowed;
2. The matter is
returned for redetermination by a different Board member;
3. No question will be
certified; and
4. No Order as to
costs.
“Roger
T. Hughes”
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