Date: 20090729
Docket: IMM-530-09
Citation: 2009 FC 782
Toronto, Ontario, July 29,
2009
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
MYUNG SOON LEE
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Myung Soon Lee seeks
judicial review of the negative decision of a PRRA officer. At the conclusion
of the hearing, I advised the parties that the application for judicial review
would be allowed, as I was satisfied that the decision under review had been
arrived at in a procedurally unfair manner, and that it was not clear that the
outcome of the case would inevitably have been the same, but for the breach of
procedural fairness. These are my reasons for coming to that conclusion.
Background
[2]
Ms. Lee is a citizen
of the Republic of Korea. The PRRA officer accepted that she had endured some 20
years of serious physical and emotional abuse at the hands of her husband, but
concluded that South Korea had adequate mechanisms in place to
protect victims of domestic violence.
[3]
Ms. Lee provided the
PRRA officer with several sets of detailed submissions in support of her application.
Her initial package of submissions included a covering letter, which listed the
various categories of documents included in the package. One of these
enclosures was described as a “Country Conditions Package on South Korea: Violence against Women”.
[4]
Also included in the
package were 15 pages of written submissions. The first paragraph of these
submissions made specific reference to the documentary information that had
been provided with respect to conditions within South Korea
for victims of domestic violence. There are approximately 25 further
references to the country condition information contained in the submissions.
[5]
None of the 55 pages
of country condition information that had been submitted by Ms. Lee in support
of her PRRA application were included in the Certified Tribunal Record. It is
now conceded by the respondent that this material had never been put before the
PRRA officer, and that there had been a breach of procedural fairness in this
regard.
[6]
Counsel for the
respondent argues, however, that the country condition information submitted by
Ms. Lee pre-dated the country condition information relied upon by the PRRA
officer. Even if the earlier information had been in front of the officer, the
respondent says that it would have been entirely reasonable for the PRRA
officer to prefer the more recent information with respect to the availability
of state protection for victims of domestic violence. As a consequence, the
outcome of the application would inevitably have been the same, and nothing is
to be gained by sending the matter back for re-determination.
Analysis
[7]
Where there has been
a breach of natural justice or a denial of procedural fairness in the process
followed in arriving at a decision, a new hearing will ordinarily be
necessary. There is, however, an exception to this rule.
[8]
That is, a court may
disregard a breach of natural justice or procedural fairness “where the
demerits of the claim are such that it would in any case be hopeless”: see Mobile
Oil Canada Ltd. et al. v. Canada-Newfoundland Offshore Petroleum Board,
[1994] 1 S.C.R. 202, at para. 53. See also Yassine v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 949 (F.C.A.).
[9]
I agree with the
respondent that as a risk assessment involves a forward-looking analysis, the
most recent information regarding conditions in a particular country will
ordinarily be the most probative. However, I cannot agree that the missing
information in this case was not material to Ms. Lee’s application, and could
not have changed the result of her PRRA application.
[10]
In her analysis, the
officer accepted that there had been serious problems with domestic violence in
South Korea in the past. However, after reviewing
the country condition information before her, including documents such as the
United States’ Department of State Report for 2006, the officer found that
“there had been positive changes made by the government of Korea” in this
regard, and that police officers’ behaviour towards victims of domestic
violence “had improved remarkably” since 2004.
[11]
Indeed, the general
tenor of the decision is that whatever problems there may have been in the past,
the picture for victims of domestic violence in South Korea
had improved significantly in recent years.
[12]
The 2006 U.S.
Department of State Report indicates that nearly 50% of women in South Korea were victims of domestic violence. In
contrast, the 2005 Department of State Report submitted by Ms. Lee, which was
not considered by the PRRA officer, indicates that domestic violence occurred
in 30% of South Korean households. On its face, this evidence arguably suggests
that far from diminishing, the incidence of domestic violence in South Korea had increased markedly in recent years.
This in turn could arguably indicate that measures taken to combat the problem
of domestic violence in South
Korea were not working. If
accepted, this evidence would clearly be material to Ms. Lee’s application.
[13]
In light of the above
example, I am not persuaded that the evidence that was not considered by the
PRRA officer was clearly not material to the application, or that it could not
have affected the result. As a consequence, I am of the view that the matter
must be remitted for a fresh assessment.
[14]
Before concluding, I
would also note that given the repeated references to the country condition
information in Ms. Lee’s written submissions, the fact that the PRRA officer apparently
did not notice that the information package was missing also raises a concern
with respect to the overall care that was taken in relation to this
application.
Conclusion
[15]
For these reasons,
the application for judicial review is allowed.
Certification
[16]
Neither party has
suggested a question for certification, and none arises here.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. This
application for judicial review is allowed, and the matter is remitted to a
different PRRA officer for re-determination; and
2.
No serious question of general importance is certified.
“Anne
Mactavish”
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