Date: 20100727
Docket: IMM-6228-09
Citation: 2010 FC 783
Ottawa, Ontario, July 27, 2010
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
HEE HYUN NAM
HWAN JEE
YAE IN JEE
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of a
member of the Refugee Protection Division (RPD) of the Immigration and Refugee
Board (IRB), dated November 18, 2009, wherein the applicants’ claim to refugee
status pursuant to section 96 and 97 of the IRPA was refused.
[2]
Hee
Hyun Nam (the
principal applicant) and her children, Hwan Jee and Yae In Jee are citizens of
the Republic
of South Korea. Hee Hyun Nam was appointed as the designated
representatives for the minor applicants. They claim protection pursuant to
section 96 and subsection 97(1) of the IRPA.
[3]
These
are my reasons for dismissing the application.
Background
[4]
Ms.
Hee Hyun Nam, the
principal applicant and a citizen of South Korea, married her husband,
Mr. Ho Young Jee on May 19, 1991. They have two minor children: their daughter
Yae-In, aged eleven and son Hwan, seventeen.
[5]
Ms.
Nam claims that while they were still resident in South Korea, her husband
gambled and physically and verbally abused her. She says that her husband
continuously abused her from1996 to 2008, with the exception of the first two
years following their arrival in Canada, from 2003 to 2005.
[6]
During
the course of this abuse, the principal applicant’s husband threatened to kill
her and their two children, choked her, put a knife to her stomach and throat,
beat her with a chair and physically assaulted her on an almost constant basis.
Ms. Nam also alleges
that her husband threatened to kill their two children in a murder suicide
pact. As a result of the prolonged abuse that she endured, Ms. Nam suffers from
acute anxiety and depression.
[7]
Ms.
Nam did not
report the abuse nor did she seek the protection of the South Korean
authorities, police, social or legal agencies, family or friends in South Korea. Ms. Nam did
not do so for cultural reasons and because, in her view, the police do not
offer adequate protection to victims of intimate partner violence in Korea.
[8]
After
arriving in Canada in January
2003, Ms. Nam’s husband
ceased to abuse her until 2005 when he began gambling again. When the abuse by
her husband commenced again, it was of the same nature and severity as previously
inflicted until June 2008 when Ms. Nam’s husband abruptly left the family home
to return to South
Korea.
[9]
On
August 27, 2008, Ms. Nam made a claim for refugee protection for
herself and her two children, based upon the serious domestic violence/abuse
that she had experienced at the hands of her husband in South Korea and here in
Canada.
[10]
Ms.
Nam says that
although her husband never physically attacked their children or held a knife
to them, the children were seriously affected by the violence as they witnessed
their father’s threats and saw him beating their mother and holding a knife to
her throat. Ms. Nam’s children manifest corresponding symptoms of anxiety
and fear.
[11]
Ms.
Nam also did not
seek protection from the Korean police or others for her children because
cultural norms in Korea dictate that as their father, Ms. Nam’s husband
could act with impunity towards their children.
[12]
Ms.
Nam believes
that her husband will continue to make their lives a living nightmare if they
are returned to South Korea. She also believes that her husband will seek
custody of the children. Further contact with their father in South Korea would expose
the children to his violent and abusive behaviour.
Decision Under Review
[13]
The
determinative issue in this case was the credibility of the principal
applicant’s Personal Information Form (PIF) and oral testimony concerning her
subjective fear of persecution as a victim of domestic violence, whose profile
puts her at risk of persecution should she return to South Korea. A further
determinative factor is the issue of state protection and its adequacy, and the
state’s willingness to effectively implement procedural and legislative frameworks
in an effort to protect its citizens.
[14]
The
panel found on a balance of probabilities that the principal applicant suffered
threats, verbal and physical harm from her abusive husband and that her
children suffered verbal abuse. However, the panel found that adequate state
protection is available in the Republic of South Korea and that the principal
applicant failed to take all reasonable steps to obtain this protection.
Furthermore, should the principal applicant return to South Korea, the panel
found, on a balance of probabilities, that state protection would be available
to the principal applicant and her children.
[15]
In
applying the forward-looking test for refugee protection, the panel found that
the South Korean government is capable of providing protection to the
applicants through its legislation, police and judicial system.
[16]
It
was found that the principal applicant failed to seek state protection as she
never contacted the South Korean police or the agencies, hotlines, legal
resources or shelters available to provide assistance to abused women.
[17]
The
panel member noted that the Republic of South Korea is a
constitutional democracy and that the civilian authorities maintain effective
control of its security forces and the state generally respects human rights.
It was said that state protection does not have to be perfect, with the applicable
standard being whether the police make serious efforts to protect citizens at
risk.
[18]
The
panel’s reasons note that country documentation indicates that the South Korean
government and police agencies take the issue of domestic abuse as a serious
issue and they do extend protection to victims. The panel was cognizant that
domestic violence continues to remain a problem in South Korea.
[19]
Regarding
Dr. Clifton R. Emery’s Report on partner violence, provided by counsel, the
panel found on a balance of probabilities, that given the small sample size of
the research, its’ results could not be reasonably applied to the general
population of South Korea. While not dismissing Dr. Emery’s report, the panel
did not prefer Dr. Emery’s report over other country conditions documents,
which are also provided by unbiased sources.
[20]
The
panel concluded by finding that although the principal applicant’s inaction in
seeking state protection may have many causes, including psychological and
cultural reasons, this inaction is not unique to women in South Korea, but is
commonly known to occur in differing countries and cultures.
Issues
[21]
The
issues raised by the parties can be narrowed to the following:
a. Did the panel member err in
failing to provide an independent analysis of the minor children’s refugee
claim?
b. Did the panel member err in
finding that the principal applicant did not seek the assistance of South
Korean authorities and that she failed to rebut the presumption of state
protection?
Analysis
[22]
I
agree with the recent findings of my colleague Justice Shore stating that
questions relating to the adequacy of state protection are to be reviewed on a
standard of reasonableness: Kim v. Canada (Minister of Citizenship and
Immigration), 2010 FC 149, [2010] F.C.J. No. 177, at para. 28, citing: Hinzman
v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 171, [2007] F.C.J. No. 584, at
para. 38.
[23]
I
also adopt the following comments of Justice Shore on the application of
the standard of reasonableness, again in Kim, above, at para. 29:
29 When applying the standard of
reasonableness, a court must show deference to the reasoning of the agency
under review and must be cognizant to the fact that certain questions that come
before administrative tribunals do not lend themselves to one specific result.
As the Supreme Court of Canada explained, reasonableness is concerned mostly
with "the existence of justification, transparency and intelligibility
within the decision-making process", as well as "whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law" (Dunsmuir v. New Brunswick, [2008] SCC 9, [2008] 1
S.C.R. 190 at para. 47).
[24]
Cognizant
of the fact that the issues that were before the panel in this case do not lend
themselves to one specific result, I am unable to intervene in the panel’s
conclusion that a state, such as South Korea, that is actively trying to engage
and protect victims of domestic violence cannot be considered to be unable or
unwilling to provide state protection when the principal applicant has failed
to approach the state for protection.
[25]
Acknowledging
the reality of the special vulnerability of children’s claims and the need for
special procedural protections, as argued by the applicants, I am unable to
find that the panel’s reasons did not focus on both the principal and child
applicants in this case. The authorities cited by the applicants are of limited
assistance as these cases dealt with unaccompanied minors: Lorne v. Canada (Minister of
Citizenship and Immigration), 2006 FC 384, [2006] F.C.J. No. 487; Charles
v. Canada (Minister of
Citizenship and Immigration), 2007 FC 103, [2007] F.C.J. No. 137.
[26]
Ms. Nam, as the designated
representative of her two children, had the responsibility to present the claims of
the minor applicants. While it does not appear from the record that she failed
in the exercise of that responsibility, any inadequacy there may have been in
the representation of the children’s interests is not attributable to the panel:
Manalang v. Canada (Minister of Public
Safety and Emergency Preparedness), 2007 FC 1368, [2007] F.C.J. No. 1763, at
para. 111; Kurkunov v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 1377, [2001] F.C.J. No. 1895, at
para. 11.
[27]
I
note that the child applicants did not provide their own individual PIFs,
specifically stated that they relied on the PIF of their mother, the principal
applicant, and that the applicants who had the opportunity to modify their PIFs
at the hearing chose instead to confirm that their PIFs were complete and
accurate. The principal applicant’s PIF states that her husband never hit the
children. The panel was entitled to rely on that statement. Thus, I am unable
to find that the letters provided by the child applicants, submitted shortly
before the hearing and raising vague allegations of physical abuse, were
improperly assessed by the panel.
[28]
The
argument that the panel erred by not independently analyzing the claims of the
minor children individually is not persuasive as the claims of the minor
children were linked to the claim of their mother, the principal applicant: Song
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 467, [2008] F.C.J. No. 591, at
para. 20.
[29]
I
agree with the respondent that the child applicants did not raise separate
claims from that of their mother and I am satisfied that the panel’s analysis
did adequately focus on the claims of both the principal and child applicants
in its reasons.
[30]
Regarding
the second issue in this case, I am also unable to find that the panel member
erred in its determination of state protection and its adequacy. I note that the panel’s
reasons observed that country documentation indicated that the South Korean
government and police agencies take the issue of domestic abuse as a serious
issue and that they do extend protection to victims. I find that the panel was
cognizant of the reality that domestic violence continues to remain a problem
in South
Korea.
[31]
The
panel reasonably found, in my view, that although the principal applicant’s
inaction in seeking state protection may have many causes, including
psychological and cultural reasons, this inaction is not unique to women in
South Korea, but is commonly known to occur in differing countries and cultures.
[32]
As
I have previously stated in Flores v. Canada (Minister of Citizenship and Immigration), 2008 FC 723, [2008]
F.C.J. No. 969, at para 10, the decision of the Supreme Court in Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689, [1993] S.C.J. No. 74,
stressed that refugee protection is a surrogate for the protection of a
claimant's own state. When that state is a democratic society, such as South Korea, the quality
of the evidence necessary to rebut the presumption will be higher. It is not
enough for the principal applicant merely to show that her government has not
always been effective at protecting persons in her particular situation: Canada (Minister of
Employment and Immigration) v. Villafranca (F.C.A.), (1992), 18
Imm. L.R. (2d) 130, [1992] F.C.J. No. 1189.
[33]
Further,
I emphasise Justice Tremblay-Lamer’s finding that South Korea is a functioning
democracy and is presumed to be able to protect its citizens: Song,
above, at para. 14:
14 As
correctly stated by the Board, South Korea is a functioning democracy and as such it is presumed to
be capable of protecting its citizens. As indicated by my colleague Madam
Justice Johanne Gauthier in Capitaine v. Canada (Minister
of Citizenship and Immigration), 2008 FC 98, [2008] F.C.J. No. 181 (QL), at para. 21 "In developed
democracies such as the U.S. and Israel, it is clear from Hinzman (at
paras. 46 and 57) that to rebut the presumption of state protection this
evidence must include proof that an applicant has
exhausted all recourses available to her or him." However, the situation
is different for developing democracies whose position on the "spectrum of
democracy" may dictate a weaker presumption, which is not the case with South Korea.
[34]
In
light of the documentary evidence regarding South Korea's ability to protect
women who are victims of domestic violence, the fact that South Korea is a
functioning democracy, and considering that the principal applicant failed to
seek state protection as she never contacted the police or other agencies,
hotlines, legal resources or shelters, it was reasonable for the panel to
conclude that adequate state protection was available to the principal
applicant and her two children.
[35]
I
do not accept the applicants’ argument that the panel erred when it failed to specifically
mention (1)
the study entitled “Police Response to Domestic Violence in Korean” (the KNPU
report); and (2) the collection of affidavits from five women respecting their
personal experience and knowledge of Korean society. The failure to mention
some documentary evidence is not fatal to the panel’s decision, as the panel is
assumed to have weighed and considered all the evidence presented unless the
contrary is shown: Florea v. Canada (Minister of Employment and Immigration)
(F.C.A.), Appeal No. A-1307-91, [1993] F.C.J. No. 598, at para. 1.
[36]
As
stated in Kim, above, at para. 69, “even though the panel did not refer
to every piece of evidence that contradicted its conclusion, such a duty cannot
possibly be placed on the officer, especially when the evidence is of mixed
quality.”
[37]
The
panel noted that there is criticism of state protection for victims of domestic
violence in South
Korea.
It was also stated that protection was not perfect. I think it clear from the
reasons, read as a whole, that the panel considered the documents cited by the
applicants: Quinatzin v. Canada (Minister of
Citizenship and Immigration), 2008 FC 937, [2008] F.C.J. No. 1168,
at para. 30; Sholla v. Canada (Minister of Citizenship and Immigration), 2007 FC 999, [2007]
F.C.J. No. 1299, at paras. 13-14.
[38]
The
panel’s finding that the principal applicant was unsuccessful in rebutting
the presumption of state protection, in light of her inaction in seeking
protection,
should stand as the panel’s reasoning process was not flawed and the resulting
decision falls within the range of possible, acceptable outcomes which are
defensible in respect of the facts and the law: Dunsmuir, above, at
para. 47.
[39]
I
find that the process adopted by the panel and the resulting outcome fit
comfortably with the principles of justification, transparency and
intelligibility. Accordingly, it is not open to this Court to intervene: Canada (Citizenship and
Immigration) v. Khosa,
2009 SCC 12, [2009] S.C.J. No. 12, at para. 59.
[40]
In
light of the above, I conclude that the panel made a reasonable decision when
it found that the principal applicant had not adduced sufficient probative
evidence to rebut the presumption that state protection in South Korea was
available to her.
[41]
Accordingly,
I must dismiss the application. No questions were proposed for certification.
JUDGMENT
IT IS THE JUDGMENT OF
THIS COURT that the application is dismissed. There are no questions
to certify.
“Richard
G. Mosley”
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