Date: 20090706
Docket: IMM-5054-08
Citation: 2009 FC 701
Ottawa, Ontario, July 6, 2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
EUI HANG CHO
SEONG HO PARK
JUN HO PARK
JI HO PARK
Applicants
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72 (1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review of a
decision of the Refugee Division of the Immigration and Refugee Board (Board),
dated October 17, 2008 (Decision) refusing the Applicants’ application to be
deemed Convention refugees or persons in need of protection under sections 96
and 97 of the Act.
BACKGROUND
[2]
The
Principal Applicant, Eui Cho, and her sons Seong (16 years old), Jun (20 years old)
and Ji (10 years old) are citizens of the Republic of Korea. The
Principal Applicant claims that if she and her sons return to Korea they will be
in danger from her abusive husband.
[3]
The
Principal Applicant was married in 1987. Her husband abused alcohol and became
physically and verbally abusive. The Principal Applicant never went to the
police in Korea to report
the violence. She also did not consider divorce, as she feared she would lose
her children in divorce proceedings because in Korea the father
of the children is allegedly always awarded custody (a view the Principal
Applicant formed from watching television and reading the newspapers).
[4]
On
December 26, 2001, the Principal Applicant came to Canada with her sons
so they could attend school. They arrived at Pearson International Airport in Toronto.
[5]
Since
that time, the Principal Applicant’s husband has, on occasion, come to Canada and has resided
with the Applicants. During these visits the husband has continued his abuse.
The Principal Applicant last lived together with her husband at the end of June
2006. The last time she was physically assaulted by him was in July of 2006,
before he departed for Korea. The physical abuse suffered by the
Principal Applicant was confirmed at the Refugee hearing by her eldest son Jun.
[6]
In
July 2006, the Principal Applicant made a claim for refugee protection when further
extensions of her sons’ student visas were refused.
[7]
In
August 2008, the Principal Applicant received a telephone call from her husband
in which he asked her to go back to Korea because he missed the
children. The Principal Applicant also says she received a death threat from
her husband.
DECISION UNDER REVIEW
[8]
The
Board found that the Applicants were not Convention refugees or persons in need
of protection.
[9]
The
Board designated Jun to be the Designated Representative for his younger
brothers.
[10]
The
Board accepted the certified copies of the Applicants’ valid Korean passports
and found that they were citizens of the Republic of Korea.
[11]
The
Board considered the Principal Applicant under the social group of women who
are victims of domestic violence, which is a Convention ground: Canada (Attorney
Genera) v. Ward, [1993] 2 S.C.R. 689 (Ward). The Board found
that the three male Applicants had established a connection to a Convention
ground by being part of the Principal Applicant’s family. The Board applied the
Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution.
[12]
The
Board was satisfied that all of the Applicants were “chronic victims of
physical and emotional abuse at the hands of a husband and father who appears
to have a substantial issue with alcohol.” The Board concluded, however, that
there was sufficient state protection in their own country and that while the
Principal Applicant was in Korea “she took no steps to avail herself of the
protection of her own state.”
[13]
The
Board cited Ward for the principle that refugee protection can only be
properly sought after an applicant has first sought the protection of their own
state. There is an underlying presumption that a state can protect its
citizens, which may only be rebutted by clear and convincing proof to the
contrary. When an applicant has not approached their own state for protection,
in circumstances where it is objectively unreasonable for them not to have done
so, the claim fails.
[14]
The
Board also cited Flores Carrillo v. Canada (Minister of Citizenship and
Immigration), [2008] 4 F.C.R. 636 (F.C.A.) (Carrillo) for the rule
that responsibility toward a refugee lies with the state of which the refugee
is a citizen. Evidence that an applicant uses to rebut a presumption of state
protection must be “relevant, reliable and convincing evidence, which satisfies
the decision maker, on a balance of probabilities, that state protection is
inadequate.” Canada (Minister of Employment and Immigration)
v. Villafranca, [1992]
F.C.J. No. 1189 (Villafranca) held that the protection offered by a
state to its citizens need not be perfect, but the state must undertake serious
efforts to protect its citizens. In N.K. v. Canada (Minister of Citizenship
and Immigration) (1996),
143 D.L.R. (4th) 532 (F.C.A.) (Kadenko) it was held that an applicant must do more then show that
they went to see some members of the police force and their efforts were
unsuccessful. The burden of proof rests on an applicant and is directly
proportional to the level of democracy in the state in question.
[15]
The
Board concluded that the evidence provided by the Applicants was “not …high
quality evidence, which is relevant, reliable and convincing, which would allow
[the Board] to conclude, on a balance of probabilities, that the claimant has
rebutted the presumption of state protection.”
[16]
The
Board noted that Korea is a constitutional democracy that maintains
effective control of its security forces and is considered disciplined and
non-corrupt. Rape is still a serious problem and, although there is no specific
statute that defines spousal rape as illegal, the courts have established a
precedent of protecting spouses in such cases. In August of 2004, the criminal
court in Seoul convicted a
man of sexual assault after he attempted to have sex with his wife without her
consent.
[17]
Violence
against women is still a problem in Korea, with nearly fifty
percent of all women being victims of domestic violence. The Korean Government
has passed the Special Act of the Punishment of Domestic Violence which
defines domestic violence as a serious crime. The legislation requires police
to respond immediately to reports of domestic violence and the police are “generally
responsive.” The legislation also requires the police to take victims who are
willing to go to a protection facility or to a hospital if the victim requires
treatment. The police are required to inform victims of their options, such as
temporary measures against the perpetrator, or the assistance of a prosecutor
for temporary measures if they think the violence could recur.
[18]
The
Board noted that the government of Korea has established “some”
shelters for battered women and has increased the number of childcare
facilities. Women’s rights groups have found that these measures have fallen “far
short of effectively dealing with the problem.” During 2007, the government
built five new shelters for victims of domestic violence for a total of 97 for
a country of 48 million. The Board also noted evidence that suggested women in Korea who are
victims of domestic violence are more likely to receive societal criticism
rather than protection and to suffer feelings of shame, disgust, mortification
and guilt rather than being provided with appropriate support because of
“enforcement officials’ chauvinism and inadequate sensitivity.”
[19]
The
Board felt that although the situation for victims of domestic abuse in Korea
is not perfect (protection orders are hard to enforce as victims must report
again and again when a protection order is violated), the Government of Korea
has put in place both a legislative and law enforcement framework to protect
women who are victims of domestic violence and that, “[c]hauvinistic attitudes
and lack of sensitivity aside, the police are willing and actually do enforce
the law to give victims effective and meaningful protection…the government in
Korea is certainly undertaking serious efforts…to protect the victims of
domestic violence.”
[20]
The
Board concluded that the Principal Applicant had failed to rebut the presumption
of state protection and had not taken sufficient steps to avail herself of the protection
available to her in Korea. The Board also concluded that “Jun Ho is a
legal adult, and I can see no reason why he would have to submit to his
father’s discipline or abuse either here or in Korea. Although
they are still minors, I have seen no evidence that would allow me to find that
Seong Ho Park and Ji Ho Park would be in danger, or that they would not be
afforded protection by their own state, should they return to Korea.”
[21]
The
Board ruled that the Applicants are not Convention refugees and, because of the
availability of state protection, a separate assessment of the claims under
section 97(1) would “result in the same negative outcome.”
ISSUES
[22]
The
Applicants submit the following issue on this application:
1) Is
the Board’s finding that there is adequate state protection in the Republic of Korea for
victims of domestic abuse reasonable?
STATUTORY PROVISIONS
[23]
The
following provisions of the Act are applicable in these proceedings:
|
Convention refugee
96. A Convention refugee is a person who, by reason of a
well-founded fear of persecution for reasons of race, religion, nationality,
membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is
unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
(b) not having a country of nationality, is outside the country
of their former habitual residence and is unable or, by reason of that fear,
unwilling to return to that country.
Person in need of protection
97. (1) A person in need
of protection is a person in Canada whose removal to their country or countries of
nationality or, if they do not have a country of nationality, their country
of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of
torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual
treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail
themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country
and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless
imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide
adequate health or medical care.
Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed
by the regulations as being in need of protection is also a person in need of
protection.
|
Définition de
« réfugié »
96. A qualité
de réfugié au sens de la Convention — le réfugié — la personne qui, craignant
avec raison d’être persécutée du fait de sa race, de sa religion, de sa
nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit se trouve hors de tout pays dont elle a la
nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de
la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors
du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait
de cette crainte, ne veut y retourner.
Personne à protéger
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le
croire, d’être soumise à la torture au sens de l’article premier de la
Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements
ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de
la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Personne à protéger
(2) A également qualité de personne à
protéger la personne qui se trouve au Canada et fait partie d’une catégorie
de personnes auxquelles est reconnu par règlement le besoin de protection.
|
STANDARD OF REVIEW
[24]
The
Respondent submits that the standard of review applicable to the issue of state
protection is reasonableness: Song v. Canada (Minister of
Citizenship and Immigration) 2008 FC 467 and Eler v. Canada (Minister of
Citizenship and Immigration) 2008 FC 334.
[25]
The Respondent stresses that this Court should not intervene
unless the Decision does not fall within the range of possible acceptable
outcomes which are defensible in respect of the facts and law. The Respondent
submits that the Court ought not to intervene in this case, as the standard is
a deferential one: Dunsmuir v. New Brunswick 2008 SCC
9 at paragraphs 47, 53, 55 and 62 (Dunsmuir); Canada (Citizenship and Immigration) v. Khosa 2009
SCC 12; Mwaura v. Canada (Minister of Citizenship and Immigration) 2008
FC 748 at paragraphs 10-11 and Muszynski v. Canada (Minister of Citizenship
and Immigration) 2005 FC 1075 at paragraphs 7-8.
[26]
In Dunsmuir, the
Supreme Court of Canada recognized that, although the reasonableness simpliciter
and patent unreasonableness standards are theoretically different, “the analytical
problems that arise in trying to apply the different standards undercut any
conceptual usefulness created by the inherently greater flexibility of having
multiple standards of review”: Dunsmuir at paragraph 44.
Consequently, the Supreme Court of Canada held that the two reasonableness
standards should be collapsed into a single form of “reasonableness” review.
[27]
The Supreme Court of Canada in Dunsmuir also held that the
standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to the particular question before the
court is well-settled by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless must the reviewing
court undertake a consideration of the four factors comprising the standard of
review analysis.
[28]
Thus, in light of the Supreme Court of Canada’s decision in Dunsmuir and
the previous jurisprudence of this Court, I find the standard of review
applicable to the issue on this application to be reasonableness. When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law”: Dunsmuir at
paragraph 47. Put another way, the Court should only intervene if the Decision was unreasonable in the
sense that it falls outside the “range of possible, acceptable outcomes which
are defensible in respect of the facts and law.”
ARUGMENTS
The Applicants
State Protection
[29]
The
Applicants submit that the question in not the existence of initiatives by the
Korean government to address the issue of domestic violence, but the
effectiveness of those initiatives. The Applicants cite Erdogu v. Canada
(Minister of Citizenship and Immigration) 2008 FC 407 at paragraph 28 which
cites Elcock v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J.
No. 1438 at paragraph 15 for the proposition that “[t]he
ability of a state to protect must be seen to comprehend not only the existence
of an effective legislative and procedural framework but the capacity and the
will to effectively implement that framework.”
[30]
The
Applicants state that the evidence before the Board shows that, while there is
a legislative framework in existence in Korea, it is not effectively implemented. The
Applicants summarize the evidence on effectiveness of the various state initiatives
and legislative mechanisms available to protect women who are victims of
domestic violence as follows:
1)
Female
victims are more likely to receive social criticism rather than protection;
2)
Women
are not provided with appropriate support because of law enforcement officials’
chauvinism and inadequate sensitivity;
3)
Protection
orders are hard to enforce;
4)
Measures
to deal with domestic violence fall far short of effectively dealing with the
problem.
[31]
The
Applicants submit that the Board found in its reasons that the evidence relied
upon by the Applicants was not of high quality despite its being from reliable
sources such as the U.S. State Department and the United Nations Committee on
the Elimination of Discrimination against Women. The Applicants say that this
evidence is clear and convincing and, on a balance of probabilities, the only
“reasonable determination is that effective state protection is not forthcoming
in Korea for women who are
victims of domestic abuse.”
[32]
The
Applicants also submit that while the Board noted that the police are generally
responsive to reports of domestic violence, the police must respond
effectively, which is not what the evidence illustrates; particularly in light
of the chauvinism and inadequate sensitivity shown by law enforcement
officials.
[33]
The
Applicants conclude that the Board’s findings on state protection are
unreasonable and unsupported by the evidence.
[34]
The
Applicants further submit that a refugee claimant does not need to approach the
state for protection to be able to rebut the presumption of state protection
when (based on an objective analysis) the evidence is that state protection is not
reasonably forthcoming: Ward. The Applicants say that because the Korean
government does not effectively deal with domestic violence problems, state
protection would not have been reasonably forthcoming in this case, so there
was no point in the Applicants approaching the state of Korea to demonstrate that
protection was not effective: Ward.
[35]
The
Applicants say that, while the Board cites evidence, the Board’s ultimate
finding must be supported by the evidence and it is not in this case.
The Respondent
[36]
The
Respondent cites the tests for state protection in Ward, Villafranca and
Carrillo. The Respondent also notes that the Federal Court has held that
requiring a state’s ability to protect to be effective is an unattainable
standard and the proper test for state protection is a determination of whether
it is adequate. Requiring otherwise would improperly shift the onus to the
Board to establish the existence of state protection: Samuel v. Canada
(Minister of Citizenship and Immigration) 2008 FC 762 at paragraphs 10 and
13; Flores v. Canada (Minister of Citizenship
and Immigration 2008
FC 723 at paragraphs 9-11 and Mendez v. Canada (Minister of Citizenship and
Immigration) 2008 FC 584 at paragraph 23.
[37]
The
Respondent says that the Applicants’ evidence does not establish that the
authorities in Korea would have been unable
or unwilling to provide adequate protection to them.
Board did Not Ignore
Evidence
[38]
The
Respondent points out that almost every source that the Applicants say was
ignored by the Board was referred to by the Board in its assessment. The Board clearly
understood that domestic violence remains a problem in Korea, but was not convinced
that the evidence established, on a balance of probabilities, an absence of
adequate protection.
Board Weighing of
Evidence Not in Error
[39]
The
Respondent submits that the Board’s comments about the quality of the evidence
required were not related to the independence or reliability of its sources.
The use of the term “clear and convincing evidence” is meant to illustrate that
the task of proving the absence of state protection is a difficult one, and
that a certain amount of cogent evidence will be required before a trier of
fact is satisfied that a fact is more likely than not. The fact that the
evidence is from a reliable and independent source alone does not establish
that it is clear and convincing evidence of the state’s inability to protect;
that is a question for the trier of fact to determine on the basis of all the
evidence before him or her. The Board noted and weighted all of the evidence
regarding the problem of domestic violence against evidence that legislative
and law enforcement measures to combat domestic violence were enforced. The
Board then concluded that adequate protection was available. See: Carrillo.
Applicant Failed to Approach State for Protection
[40]
The
Respondent cites Hinzman v. Canada (Minister of Citizenship and Immigration) 2007 FCA 171 which
confirms that the burden of attempting to show that an applicant should not be
required to exhaust all avenues of available domestic recourse is a heavy one. Hinzman
was followed in Song, where the Court held that South Korea is not a developing
democracy and an applicant’s evidence must include proof that they exhausted
all avenues of domestic recourse. The Respondent says that it was reasonable
for the Board to conclude that the Applicant had not exhausted all avenues of
recourse.
ANALYSIS
[41]
The Applicants
say that the evidence before the Board revealed that state protection in Korea was not adequate. They
say that the Officer failed to deal with that evidence by questioning its
quality and by relying upon a mere framework of legislative protection for
victims of domestic violence that is not effective.
[42]
In
my view, a full reading of the Decision reveals that the Applicants are wrong
in this regard. In both the Decision and in the transcript to the hearing, the
Officer reveals that his concern is to ascertain the actual effectiveness of
state protection in Korea. He fully acknowledges
that the evidence relied upon by the Applicants reveals that very real problems
exist and that societal attitudes towards domestic violence in Korea still need to be
addressed. But the Officer is quite clear that “the police are willing and
actually do enforce the law to give victims effective and meaningful
protection.”
[43]
Notwithstanding
the Applicants’ evidence, there was ample evidence before the Officer to
support his conclusions that police protection for the Applicants is effective
and meaningful and that they had not overcome the presumption of state
protection. The Officer specifically refers to the evidence of the sociologist,
who was contacted, but it is clear from the Decision as a whole that he also
relied upon supportive evidence in the DOS report which said that the police
generally were responsive.
[44]
In
my view, then, this was a case where the Officer weighed the evidence before
him, fully acknowledged the problems revealed in the Applicants’ evidence, but
finally decided that there was sufficient evidence to show “effective and
meaningful protection” for the Applicants in Korea. The Applicants had made no effort to avail
themselves of this protection and so had not rebutted the usual presumption.
Other conclusions may have been possible on the evidence as a whole, but there
is nothing unreasonable about the Officer’s Decision.
[45]
The
Applicants have raised a concern about specific wording used by the Officer
when referring to their evidence and an indication that it lacked the “quality”
needed to rebut the presumption of state protection. The Applicants point out
that their evidence came from reputable and reliable sources and was of no less
a quality than the evidence that supported the Officer’s conclusions.
[46]
I
have reviewed that particular portion of the reasons carefully against the
Decision as a whole and I cannot say that it renders the Decision unreasonable.
In my view, the Officer is merely attempting to summarize the case law and
governing jurisprudence and, albeit in a rather clumsy way, he is saying that
the Applicants’ evidence, in the end, is not sufficient to rebut the
presumption of state protection.
[47]
I
say this because the Decision as a whole makes it clear that the Officer took
the Applicants’ evidence very seriously, weighed it and considered it and fully
acknowledged the problems that still remain in Korea as regards dealing with domestic violence.
[48]
But
the crucial issue for the Officer was whether there was evidence to show that
victims of domestic violence receive “effective and meaningful protection.”
Despite continuing problems, he concluded that such protection does exist. This
was not an unreasonable conclusion, particularly when the Applicants had made
no effort to seek state protection in either Korea or Canada from the violence
perpetrated by the father.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1. This
application is dismissed.
2. There is no
question for certification.
“James
Russell”
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