Date: 20110322
Docket: IMM-2064-10
Citation: 2011 FC 353
Ottawa, Ontario, March 22, 2011
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
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SOONOG PARK
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction and Background
[1]
Soonog
Park (the Applicant), is a citizen of South Korea whose refugee claim was
rejected by the Refugee Protection Division (the tribunal) on March 11, 2010.
She fears persecution on account of domestic violence at the hands of her
ex-husband if she returns to South Korea. She married him in 1984
and obtained a divorce in 2008.
[2]
Credibility
was not an issue which concerned the tribunal. It believed the basis of her
fear - domestic abuse (physical violence and mental distress). At paragraph 14
of its decision, the tribunal member wrote “I accept that the claimant suffered
some threats and physical harm from an abusive husband”.
[3]
The
tribunal rejected her claim because it determined “based on the analysis below
and after considering all of the evidence, including counsel’s submissions, I
find, on a balance of probabilities, that state protection is available to the
claimant should she return to South Korea. In a previous
paragraph the tribunal had said “the determinative issue is state protection
and subjective fear” (Emphasis added).
[4]
The
principal factual finding made by the tribunal was “on a review of the evidence
as a whole as well as the evidence of the claimant, she has not rebutted
that presumption of the capacity of South Korea to protect
its citizens”.
[5]
It
is conceded by Applicant’s counsel Ms. Park never reported to the police
the constant and severe abuse she suffered at the hands of her husband which in
2001, 2007 and 2008 led to her hospitalization. Ms. Park believed the police in
South
Korea
do not protect women from domestic violence; in sum, she is of the view, notwithstanding
the legislation on the books, the law is not effectively enforced.
II. The facts
[6]
It
is not necessary to set out in detail the facts relating to the abuse the
Applicant suffered. The following is an appropriate context:
§
She
married in 1984 and shortly thereafter gave birth to her daughter, her only
child;
§
Her
husband became physically violent towards her one month after the marriage and
this abuse, for a certain period, went on continuously at least once a month;
§
In
2001, after an incident where she was hospitalized with a broken arm following
an abuse, she persuaded her husband to let their daughter attend high school in
Winnipeg.
§
Shortly
thereafter, because their daughter was having trouble adjusting in Canada, the
husband agreed the Applicant could join her. She stayed in Canada for the next
three years to support her daughter financially before returning to South Korea in
October 2005, principally to take care of her terminally ill mother-in-law;
she resumed living with her husband on his promise not to harm her and her
mother-in-law’s assurance he had changed. That promise broke down after the
death of her mother-in-law in April 2006;
§
While
in Canada during 2001
to 2005, she did not make a refugee claim;
§
After
a particularly vicious attack in December 2007 she asked her husband for
a divorce to which he consented on condition she gave up her claim for support
and to any share of his mother had left to both of them. The divorce was
obtained in April of 2008;
§
He
continued to harass her after the marriage was dissolved; she moved to the Korean
countryside; he tracked her down at the restaurant she was working; he accused
her of infidelity (adultery), dragged her away and severely assaulted her for
which she required a month of hospitalization. She fled to Canada on September
11, 2008 making a refugee claim on October 17, 2008.
III. The tribunal’s decision
[7]
As
noted, subjective fear and the availability of state protection in South Korea to victims
of domestic violence where the grounds of the tribunal’s rejection of her
refugee claim.
[8]
The
basis of the tribunal’s finding the Applicant did not have a subjective fear of
persecution by her husband was grounded on two basis: (1) the fact she did not
make a refugee claim in Canada when first here and (2) the fact she resumed
living with her husband when she returned to Korea at the end of 2005.
[9]
The
tribunal finding, on the basis of balance of probabilities, state protection
was available to the Applicant should she return to Korea, was based on the
following well-known refugee law principles derived from the jurisprudence and,
in particular, from the Supreme Court of Canada’s decision in Canada
(Attorney General of Canada) v Ward, [1993] 2 S.C.R. 689, written for that
Court, by Justice Gérard V. La Forest:
§
There
is a presumption that the state is capable of protecting its citizens;
§
The
onus is on a claimant to rebut that presumption by providing “clear and
convincing” proof of the state’s inability to protect its nationals;
§
A
claimant must approach her state for protection in situations where state
protection might be reasonably forthcoming;
§
Refugee
protection is a surrogate and can only be properly sought after the claimant
has first sought the protection of his or her own state; and
§
A
claimant’s evidentiary burden is directly proportional to the democracry of the
state in question.
[10]
The
tribunal explained its findings by first stating Korea was a mature democratic
state and the Applicant must therefore show that she has taken all reasonable
steps to obtain its state protection which she failed to do as she testified
she had never approached the police who “cannot be faulted for not offering protection
where incidents are not reported to them” (Emphasis added).
[11]
The
tribunal next reviewed the Applicant’s testimony why she did not report the
incidents of abuse to the police nor did she tell the hospital doctors the
causes of her injuries. It wrote at paragraph 18:
…The reason the claimant gives for not
ever making a police report is that the police in Korea do not help, that they
consider domestic violence a private matter and are too lenient toward the
perpetrators.
She thought only her own death or that of her husband would end the violence. The
claimant stated she gleaned most of her knowledge from watching television,
where she saw abusers being released shortly after being arrested and from
reading court decisions. She testified that she also saw a woman who had
been burned by her husband and a man’s body who had been killed by his abused
wife, and she thought that if the police had intervened at the beginning of the
problem these incidents of violence would not have occurred. I note that the
claimant had herself not had the police intervene in her case at an early
stage, so they were not able to be of assistance to the claimant. The claimant
also did not think that the police would help after her husband accused of
adultery, her information again coming from television programs and
documentaries. The claimant did not adduce any other evidence that she would
not receive adequate protection if the authorities perceived that she committed
adultery.
[Emphasis added]
[12]
The
tribunal referred the Applicant’s testimony saying she did not consult any Non
Governmental Organizations (NGOs), did not consult a lawyer and did not pursue
criminal charges against her husband, offering various reasons for doing so,
explanations which the tribunal did not accept.
[13]
The
tribunal reviewed some of the documentary evidence submitted by her counsel
dealing with the inadequacy of state protection for women in South Korea in domestic
violence cases. That documentary evidence consisted of:
§
Dr.
Emery’s affidavit of February 5th 2009 (which the tribunal gave no
weight); it included his 2009 report entitled “Intimate Partner Violence and
State Protection in South Korea”. That report has two aspects (1) an assessment
of three documents which include two statements in recent Response to
Information Requests (RIR) on South Korea issued by the Immigration and Refugee
Board (the IRPB), namely, Police officers behaviour towards victims of domestic
violence had improved remarkably since 2004; police will enforce
protection orders if victims report “again and again” and a statement by an
Equality Centre Korea is a “pioneer in the field of domestic violence policy”
and (2) an evaluation of the question of the adequacy of state protection in
South Korea for women victims of domestic violence. One of the elements of the
research on this second question was a before and after
comparison since the enactment of two statutes on domestic violence legislation
by Korea in
1997-1998. The before picture consisted of three in depth interviews he
had conducted in 1998 (two with police officers and one with a domestic
violence advocate at the Korean Women’s Hotline (KWHL). The after
picture was based on interviews based on written questionnaires with two
directors of the KWHL conducted in 2009.
§
A
January 2010 news release from the KWHL indicating 70 women had been
killed by their husbands or partners. The news release was also critical of the
light sentences handed out to abusers. The tribunal gave little weight to this
document “because it had political tone calling on government to better fund
spousal violence cases;
§
A
2010 letter taken from the internet by South Korean lawyer specializing in
domestic violence cases who indicated police in Korea tend to act passively unless
they have proof of violence such as a recording or a medical certificate
that could be used to report to the police. The tribunal accepted this document
and noted the Applicant had an opportunity to obtain a medical certificate and
hospital records and take them to the police but failed to do so; and
§
Five
affidavits from Korean women who suffered from domestic violence and whose
claims were accepted in Canada on the basis of
inadequate state protection. The tribunal did not refer to any of the
affidavits in its reasons.
[14]
The
tribunal said it preferred the evidence in the South Korean National
Documentary Package maintained by the Board as “this information is current and
is provided by unbiased, independent sources with no vested interest in the
outcome of any particular refugee claim”. The tribunal concluded “adequate
state protection is available and that it was reasonable to expect the claimant
to access it” (My emphasis).
[15]
The
Tribunal did not accept Dr. Emery’s report which concluded that state
protection in Korea was not
available to women in cases of domestic violence. It wrote this of his
report at paragraph 22 of its decision:
…However the writing represents an
opinion, and the preponderance of the objective and reliable documentary
evidence before the panel strongly suggests that the current government of the
Republic of South Korea is making serious efforts in dealing with domestic
violence, although not perfectly, at least adequately. Therefore, the panel,
whilst accepting that domestic violence is a problem in South Korea as also
discussed in Exhibit C-5 [Dr. Emery’s report], gives no weight to the documents
in establishing that the claimant cannot avail herself of state protection in
South Korea as a victim of domestic violence. Country documents make clear
that state protection is available to women who experience domestic violence. 8
Where the violence occurs habitually over time, it is criminally punishable. 9
In addition, the law has been modified to facilitate the granting of emergency
measures to separate perpetrators from victims in domestic violence cases when
there are fears that the violence will recur. 10 According to the
Special Act for the Punishment of Domestic Violence, police officers who have
received reports of ongoing domestic violence are required to arrive at the
scene, stop and investigate the violence and if the victim is willing, arrange
for a protective facility. 11 According to figures published in
country reports for 2005, between January and August 2005, 1, 114 cases of
domestic violence were prosecuted. 12
[Emphasis added]
[16]
Referring
to the Board’s RIR dated November 29, 2007 and another Board’s RIR
referring a United Nations Committee Report, the tribunal was of the view the
South Korean Domestic Violence Act which came into effect in 1999 demonstrated
that:
a preponderance of country conditions
documentary evidence showed police effectiveness with regard to domestic
violence including procedures followed by police when a victim files a complaint
and that through a 2002 amendment sharpened its focus on protecting human
rights and victims of domestic violence. [Emphasis added]
That documentation,
according to the tribunal, indicated that police “must investigate domestic
violence and provide police assistance to the victim if she so desires it”.
(Emphasis added)
[17]
The
tribunal concluded its state protection analysis by referring to the Federal
Court of Appeal’s decision in Canada (Minister of Employment and
Citizenship) v Villafranca (1992), 18 Imm LR (2d) 130 for the proposition
that “perfect protection is not the applicable standard but rather whether
the police make serious efforts to protect its citizens” (Emphasis added).
It considered the Republic of Korea as a constitutional
democracy with an independent judiciary and a government which generally
respected human rights. It wrote:
[25] …Case law further notes that no
state protection can guarantee perfect protection and where a state is in
effective control of its territory, has military, police and civil authority in
place, and makes serious efforts to protect its nationals; the mere fact that
the state’s efforts are not always successful will not rebut the presumption. 18
It is clear in the country documentary evidence cited above that the Republic of Korea meets all of these criteria.
Case law also notes that a claimant’s burden of proof is directly proportional
to the level of democracy in the state in question. 19 I find, on a
balance of probabilities, that state protection is available to the claimant in
the Republic of Korea.
and concluded:
[26] In light of the above, I am not
persuaded that there is clear and convincing evidence that the state would not
be reasonably forthcoming with adequate protection to protect the claimant from
the person whom she fears if she were to return to any place in South Korea.
[Emphasis added]
IV. The
issues and arguments
A. Lack
of Subjective Fear
[18]
Counsel
for the Applicant argues the tribunal committed three errors: (1) it assessed
the Applicant’s subjective fear at the time she returned to Korea in 2005 resuming
cohabitation with her husband. Counsel says she was required to assess that
fear when she left Korea in 2008 after two particularly vicious attacks;
(2) the tribunal ignored the gender and cultural reasons why the Applicant
returned to Korea in 2005 and (3) the tribunal failed to explain the relevance
of the apparent inconsistency in the Applicant’s evidence as to whether her
husband was living with another person before she returned in Korea in 2005.
[19]
Counsel
for the Respondent argued the tribunal’s finding of lack of subjective fear was
reasonable but stressed the determining finding was state protection arguing
that without clear and convincing proof of state’s inability to protect her,
the Applicant’s claim must fail.
B. The Availability of State Protection
[20]
Counsel
for the Applicant argued the tribunal’s finding on state protection was
deficient because of the errors it committed in treating the documentary
evidence submitted by the Applicant arguing the tribunal either assigned no
weight to that documentary evidence or ignored timely and relevant evidence which
supported a different conclusion than the one it reached on the availability of
state protection. She submits, in either case, the tribunal’s treatment of the
Applicant’s documentary evidence was unreasonable.
[21]
In
particular, Counsel for the Applicant submitted the basis for giving no weight
to Dr. Emery’s affidavit and report was flawed because of a number of errors
made by the tribunal:
§
First,
it erred in its analysis when it held Dr. Emery relied on dated eleven year old
evidence for his finding of lack of adequate state protection in Korea in cases of
women subject to domestic violence. Counsel says the tribunal misconstrued the
evidence because the 1998 evidence was in support of the before
picture; the current picture on state protection, however, was based on
2009 interviews with the current directors of the KKHL and on a 2006 study by
the South Korea Police University. The point of the before and after comparison
was to determine whether and to what extent the state protection concerning
domestic violence had changed;
§
Second,
the tribunal’s findings that it could not evaluate the validity of Dr.
Emery’s qualification and whether “the writer is a disinterested source” are
also in error because his qualifications, background and fact finding are in
his affidavit which contains his report. Moreover, the tribunal’s finding on
this point is arbitrary because it relied upon the internet letter from a
Korean lawyer whose qualifications are unknown as one of the factors to deny
her claim i.e. her ability to obtain a certificate from the hospital to support
a police report; and
§
Finally,
the Counsel argued the tribunal ignored relevant and probative evidence;
specifically that evidence was the affidavits of five abused Korean women said
to be similar situated as the Applicant whose claims were accepted by the
Refugee Protection Division.
[22]
Counsel
for the Respondent’s argument is also anchored on two recent developments in
jurisprudence: the Federal Court of Appeal’s decision in Carrillo v
Canada(MCI), 2008 FCA 94 and a host of recent cases from the Federal Court
involving refugee claims by Korean women subjected to domestic abuse which held
that there was adequate state protection in Korea; those cases are:
§
Song
v Canada (MCI), 2008 FC 467 [Song];
§
Cho
v Canada (MCI), 2009 FC 701 [Cho];
§
Mejia
v Canada (MCI), 2009 FC 354 ]Mejia];
§
Nam
v Canada (MCI), 2010 FC 783 [Nam];
§
Lim
v Canada (MCI), 2010 FC 1101 [Lim];
§
Lee
v Canada (MCI), Docket: IMM-576-10 [Lee];
§
Seo
v Canada (MCI), 2010 FC 1262 [Seo]
[23]
Counsel
for the Respondent pointed out in Carillo, above, a domestic abuse case
from Mexico, Justice
Gilles Létourneau stressed the following principles for the state protection
analysis in refugee law:
a. Burden of
proof, standard of proof and the quality of evidence to meet the standard of
proof are three different factual realities and legal concepts which should not
be confused;
b. In order to
rebut the presumption that a State is capable of protecting its citizens, a
refugee claimant in the surrogate country bears both a evidentiary and a legal
burden;
c. A claimant
must first introduce evidence of inadequate state protection;
d. A claimant
also has to onus to convince the trier of fact the evidence adduced established
that state protection is inadequate (the legal burden of persuasion);
e. The legal
burden is discharged on a balance of probabilities;
f.
The
nature or quality of the evidence required establish inadequate state
protection (in other words rebut the presumption of state capacity to protect must
not only be reliable; it must be of sufficient probative value to
convince on a balance of probabilities the trier of fact state protection is
inadequate
V. Analysis
A. The Standard of Review
[24]
Prior
to and since the Supreme Court of Canada’s reform of the standard of review in
judicial review matters in its decision in Dunsmuir v New-Brunswick,
[2008] 1 S.C.R. 190, coupled with its subsequent decision in Canada
(Citizenship and Immigration) v Khosa, [2009] 1 S.C.R. 339, it is well settled
that questions as to the adequacy of state protection are questions of mixed
fact and law reviewable on a standard of reasonableness (Dunsmuir at
para 53).
[25]
In
particular, the tribunal’s holding the Applicant failed to rebut the
presumption of state protection is reviewable on that standard (see the Federal
Court of Appeal’s decision in Huizman v Canada (MCI), 2007 FCA 171 at
para 38).
[26]
Generally,
questions of fact, discretion or policy, deference (hence the reasonableness
standard) will usually apply automatically questions of law are usually
reviewed on the standard of correctness (Dunsmuir at para 50 and 53).
[27]
What
the reasonableness standard means was explained in Dunsmuir at para 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 [page221] 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.
B. Discussion and Conclusions
[28]
For
the reasons expressed below, I am of the view this Court’s intervention is
required with the result the Applicant’s claim for protection must be
determined anew.
(1) Lack
of Subjective Fear
[29]
The
tribunal’s subjective fear analysis was limited in terms of time- 2005
when she returned to Korea. Paragraph 13 of its reasons, is clear; it
found on the balance of probabilities that her resumption of her marital
relationship in 2005 and failure to make a refugee claim indicated “a lack of
subjective fear at that time” (emphasis added). The tribunal made no finding
the Applicant did not fear her husband when she fled Korea in 2008 having divorced
her husband, escaped his environment by moving to the countryside, yet being
tracked down by him and experiencing a brutal attack. Those facts do not point
to the lack of subjective fear. Simply put, the tribunal’s decision does not
turn on this point; the tribunal’s finding the Applicant did not rebut the
presumption the State of South Korea was unable to protect her was
determinative. I now turn that finding.
(2) Availability
of Adequate State Protection
[30]
Before
dealing with this substantive finding, a few observations are appropriate.
[31]
First,
in this case, the Applicant admitted not having approached the police for
protection.
[32]
In
Ward, above, at para 48, Justice La Forest raised the issue whether a
refugee claimant must “first have to seek the protection of state when claiming
under the “unwilling” branch of the definition of “Convention refugee” in cases
of state inability to protect”. He was of the view the failure to approach the
home state for protection did not necessarily defeat a refugee claim in
the surrogate state because “most states would be willing to attempt to
protect when an objective assessment established that they are not able to do
this effectively” [adding] “it would seem to defeat the purpose of
international protection if a claimant would be required to risk his or her
life seeking ineffective protection of a sate, merely to demonstrate that
ineffectiveness” (emphasis added).
[33]
At
paragraph 49 in Ward, Justice La Forest formuled the test to determine when
the failure to approach the state for protection will defeat a refugee
claim; that claim will be defeated “only in situations in which state
protection might reasonably have been forthcoming” or in other words “where
it is objectively unreasonable for the claimant not to have sought the
protection of his home authorities” [Emphasis added].
[34]
How
does a claimant satisfy the test or make proof of the state’s inability to
protect? Justice La Forest provides the
answer at paragraph 50 of his reasons:
[…] On the facts of this case, proof on
this point was unnecessary, as representatives of the state authorities
conceded their inability to protect Ward. Where such an admission is not
available, however, clear and convincing confirmation of a state's inability to
protect must be provided. For example, a claimant might advance testimony of
similarly situated individuals let down by the state [page725] protection
arrangement or the claimant's testimony of past personal incidents in which
state protection did not materialize. Absent some evidence, the claim should
fail, as nations should be presumed capable of protecting their citizens.
Security of nationals is, after all, the essence of sovereignty. Absent a situation
of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be
assumed that the state is capable of protecting a claimant.
[Emphasis added]
[35]
Justice
La Forest concluded the point by referring to the Federal Court of Appeal’s
decision in The Minister of Employment and Immigration v Satiacum
(1998), 99 NR 171 as a case where the claim of Satiacum was defeated
on the sole ground it was objectively unreasonable for him, citizen of the
United States, not to have first sought protection there.
[36]
In
this case, the Applicant sought to discharge her evidentiary burden through her
own evidence and through the documentary evidence previously referred to. In my
view, if this had been a case of assessing the probative value of the evidence
or one where the tribunal preferred documentary evidence in the National
Package over that submitted by the Applicant, or a question of what proper
weight to be given to the evidence, this application for judicial review would
have failed because the tribunal is owed deference on such questions. Here, the
tribunal made the following serious errors.
[37]
First,
it misread Dr. Emery’s report. Dr. Emery did not rely on dated evidence in 1998
to assess the current ability of South Korea to protect victims of
domestic violence. It had current evidence from SKHL directors who provided
information in 2009.
[38]
It
also misread one of the Board’s RIR on the issue of the number of prosecution
for domestic violence: it is true that number was 1,114 cases (without
identifying the results) but it was out of 10,227 registered cases a
number which the tribunal failed to assess. It also misread the Board’s
reference to the United Nations Committee on the Elimination of Discrimination
against women in the National Package as evidence of adequate state protection.
That report did not deal with domestic violence in Korea but on
gender equality for women there.
[39]
Second,
it gave no weight to Dr. Emery’s report holding it could not assess the
validity of his qualifications on whether he was disinterested source. The
tribunal said it preferred the unbiased, independent sources with no vested
interest in the outcome of a refugee claim. The tribunal erred because it had
his qualifications which are quite impressive and certainly could assess the
seriousness of his research as well as the probative value of his findings.
More important, it dismissed his report on a veiled finding of bias, interest
in outcome, lack of independence without providing any reasons for such conclusion.
In addition, such finding is pure speculation having no evidentiary basis. It
is worthy of mention that in Seo, above, at para 10, Justice Michel Beaudry
was of the view the tribunal, in that case, erred when it said Dr. Emery’s
qualification could not be assessed. Likewise in Nam, above,
Justice Richard Mosley found at para. 19 that Dr. Emery’s report was an
unbiased source. In Lim, above, Justice James O’Reilly distinguished Dr.
Emery’s report because the case before him was one of sexual assault and not
domestic violence. The tribunal’s approach is contrary to law. See Tahiru v
Canada (MCI), 2009 FC 437 at para 46 to 48, Coitinho v Canada (MCI), 2004 FC
1037 at para 7.
[40]
Third,
the tribunal ignored relevant and probative evidence in the form of sworn
affidavits from 5 Korean battered women whose claims where recognized by
members of the Refugee Protection Division. Those affidavits set out the
specific facts of their claims and the availability or lack of state
protection. This evidence was important to the Applicant as it was said to be
by similarly situated persons as signalled in Ward, above. Counsel for
the Respondent conceeded this evidence was not considered by the tribunal but
attempt to soften the error by claiming its probative value was negligible, a
proposition which I cannot accept, especially because the discarded Emery
report and the affidavit evidence show that in inappropriate police response in
a domestic violence complaint can enhance the risk to a complaint’s life. In
short, the tribunal’s evaluation of the Applicant’s state protection evidence
was flawed.
[41]
In
these circumstances, the tribunal’s preference for the documents in the Package
was flawed. On this basis, I conclude the tribunal’s decision cannot stand.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this judicial review application allowed, the
tribunal March 11, 2010 decision denying the Applicant’s claim is quashed and
the Applicant’s request for protection is returned to the Board for
consideration by a differently constituted tribunal.
“François
Lemieux”
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