Date: 20110517
Docket: IMM-2276-10
Citation: 2011
FC 564
Ottawa, Ontario,
May 17, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
|
|
SANG YUN PARK, KYUNG RAN KIM,
DU LE PARK AND A LUM 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, SC 2001, c 27 (the Act), for judicial review of a
decision of a pre-removal risk assessment officer (the officer), dated January
28, 2010, wherein the officer refused the applicants’ application under subsection
25(1) of the Act to have their application for permanent residence processed
from within Canada on humanitarian and compassionate (H&C) grounds.
[2]
The
applicants request an order setting aside the decision of the officer and
remitting the matter back for redetermination by a different officer.
Background
[3]
Sang
Yun Park, Kyung Ran Kim and their daughters, Du Le Park and A Lum Park (the
applicants) are citizens of the Democratic Republic of Korea (South Korea) who
entered Canada as visitors on August 22, 2000 and did not leave.
[4]
The
applicants applied for refugee protection in Canada in March 2005 claiming to fear reprisals
from loan sharks in South
Korea from
whom the female applicant, Kyung Ran Kim had borrowed money to run a business.
[5]
The
Refugee Protection Division of the Immigration and Refugee Board (the Board) denied
the refugee claim finding the applicants’ account of running a business and
borrowing money not to be credible.
[6]
The
applicants made a pre-removal risk assessment (PRRA) application in August 2007 and an
H&C application in September 2007. These applications were denied by the
same officer and the H&C application forms the basis of this judicial
review.
Board’s Decision
[7]
The
officer determined that there were not sufficient H&C grounds to warrant an
exemption from the requirements of the Act to apply for permanent residence
from outside of Canada.
[8]
The
officer found that the applicants had not established that they would face any
personalized risk if returned to South Korea. The officer noted that
the Board did not believe that the female applicant had run a business and that
the onus was on the applicants to reverse that negative credibility finding.
The officer did not find that the documents submitted by the applicants in the
PRRA and H&C applications demonstrated that the female applicant ran a
business in South
Korea.
[9]
Regarding
establishment in Canada, the officer found that the applicants had not
shown that they were financially independent or that they had made efforts to
integrate into Canadian society by taking English classes. The applicants’
integration into their religious community is not sufficient alone to amount to
usual, undeserved or disproportionate hardship if they were removed to South Korea.
[10]
The
officer then considered the best interests of the children, finding that it is
only one factor and it cannot outweigh the others. The officer determined that
the daughters had not integrated into Canadian society through “any social
involvement” or by forming “a social circle”. The officer found that since the
parents speak little English, the daughters likely speak Korean at home and
therefore would not be at a linguistic disadvantage in South Korea. The officer
gave little weight to a psychological report of A Lum as it was based on one
session two years prior to the H&C application assessment. Concerning
education, the eldest daughter has completed secondary school and is working to
support the family. While two years of secondary school remain for the youngest
daughter and corporal punishment exists in the Korean school system, the
officer did not consider this to be sufficient in itself to prove that removal
would be against the best interests of the youngest daughter.
Issues
[11]
The
parties agree that the standard of review is reasonableness. Findings of an
officer deciding an H&C or PRRA application involve determinations of mixed
fact and law and are afforded deference by this Court.
[12]
As
such, the only issue is whether the officer’s decision is reasonable.
Applicants’ Written Submissions
[13]
The
applicants submit that the officer erred in his assessment of their
establishment. The officer wrongly discounted their work history for the period
when they worked illegally in Canada. In addition, the officer misconstrued
the facts in finding that the applicants pay for their daughters’ tuition. This
affected the finding that the applicants are not financially independent. Finally,
the officer ignored documentary evidence of involvement in church and
community.
[14]
The
applicants further submit that the officer was not alert, alive and sensitive
to the best interests of the children. The officer was required to provide a
contextual and future focused assessment of the children’s interests but he
failed to understand how the children’s lives would change if they were removed
to South
Korea.
The officer also ignored much of the documentary evidence in making his
findings. He ignored many letters from the applicants’ daughters’ friends,
teachers and members of their religious community. These letters indicated the
girls had many friends and participated in activities at school and through the
church. The officer’s finding on the psychological evidence was capricious.
There was no basis to conclude that A Lum’s psychological state had improved
and there was no mention of Du Le’s psychological state despite evidence on
nose bleeds. The officer further erred in accepting that attending school in Korea was not
contrary to Du Le’s best interests despite prevalence of corporal punishment.
Finally, the officer fettered his discretion in stating that the best interests
of the children cannot outweigh the other factors.
[15]
The
applicants also submit that the officer applied the wrong legal test by
requiring the applicants to reverse the Board’s credibility findings.
Respondent’s Written Submissions
[16]
The
respondent submits that the findings of the officer were reasonable. The onus
was on the applicants to adduce the information needed by the officer and it is
not the Court’s role to reweigh the evidence.
[17]
The
respondent submits that the establishment findings were reasonable. The officer
was entitled to give little positive weight to the period that the applicants
worked illegally in Canada since they were not in Canada due to
circumstances beyond their control. Likewise, the officer’s finding that
applicants were not making ends meet was based on their own submissions and was
reasonable. Finally, the officer clearly considered the applicants’ involvement
with their church but did not find it sufficient to amount to unusual or undue
hardship if removed to South Korea.
[18]
The
respondent submits that the officer was alert, alive and sensitive to the interest
of the children, even A Lum who is not a child but is 24 years old. The
officer employed the correct test for the best interests of the child, namely,
that the best interests of the child is an important but not determinative
factor. The officer did not err in finding that the daughters had limited
integration in Canada as the only evidence on this issue centered on
their schooling. The psychological report submitted by the applicants was two
years old and it was not an error to give this little weight. Similarly, any
evidence that Du Le was traumatized because of the events with loan sharks was
reasonably given little weight because the officer did not find the events
regarding the loan sharks to be credible. The officer also clearly considered
differences in the education systems.
[19]
Finally,
the respondent submits that the officer was entitled to rely on the negative
credibility findings of the Board in reaching his conclusion.
Analysis and Decision
[20]
Issue
Was the
officer’s decision reasonable?
The officer reached a decision
on the best interests of the children without regard to the evidence before
him. The officer stated that the applicant daughters:
…have not shown, through letters or other
documents, that over the course of their nine years on Canadian soil, they have
become integrated into Canadian society, be it through any social involvement
or by demonstrating that they have formed a social circle.
[21]
This
analysis was determinative for the officer on the best interests of the
children. He stated that:
…considering the limited integration that
the applicants’ daughters have shown, I conclude that it has not been
demonstrated satisfactorily that it would be contrary to their best interests
to return to South Korea with their parents.
[22]
However,
in contrast to the officer’s conclusion, the applicants point to numerous
letters which were before the officer showing the daughter’s social involvement.
Among others, the applicants submitted the following letters:
- A letter
from Hae-Jun Lee indicating that she has been friends with A Lum for seven
years. The letter mentions a camping trip together and that A Lum teaches
at her church (applicants’ application record, page 195);
- A letter
from Astra Hagoplan, the mother of a friend of Du Le, noting that Du Le
and her daughter are very close friends and spend a lot of time together (applicants’
application record, page 215);
- A letter
from Hwa-Hyun Rhee calling Du Le one of her best friends (applicants’ application
record, page 194);
- Letters
from the principal and a teacher of Seneca Hill Private School which the
girls attended stating that both girls were actively involved in
extra-curricular activities (applicants’ application record, pages 198 and
199);
- A letter
from a neighbour of the family which describes Du Le as “hanging out with
many friends” (applicants’ application record, page 169);
- A letter
from a member of Global Village Presbyterian Church indicating that A Lum
teaches at the church and that Du Le is very sociable and has lots of good
friends at school and church (applicants’ application record, page 182);
- Another
letter from a member of Global Village Presbyterian Church noting that A
Lum teaches at the church and Du Le’s friends love her (applicants’ application
record, page 184);
- A letter
from Super Freshmart about A Lum’s employment and commendable skills as an
employee (applicants’ application record, page 193); and
- A letter
from a senior Pastor of Global Village Presbyterian Church noting that
both daughters attend bible classes and are members of the church choir (applicants’
application record, page 270).
[23]
An
officer considering an H&C application need not refer to all of the
documentary evidence before him, provided the decision takes into account any
evidence which contradicts its conclusion. Where there is important material
evidence that contradicts a factual finding of the officer which is not
referred to, this Court can assume that the officer reached his conclusion
without regard to the material before him (see Cepeda-Gutierrez v Canada
(Minister of Citizenship and Immigration) (1998), 157 FTR 35, [1998]
FCJ No. 1425 (FCTD) (QL) at paragraphs 14 to 17; Florea v Canada (Minister
of Employment and Immigration), [1993] FCJ No 598 (CA) (QL)).
[24]
There
was extensive evidence provided by the applicants which contradicts the
officer’s finding that the daughters had no social circle or social involvement
and which was not integrated into the decision.
[25]
I
agree with the respondent that the best interests of the children are one
factor in H&C applications to be weighed against the other relevant factors
by the officer and that this Court should not engage in reweighing the evidence
(see Kisansa v Canada (Minister of Citizenship and Immigration), 2009 FCA
189).
[26]
I
do not know what decision the officer would have reached had he considered all
of the evidence. That decision is for the officer to make, not me.
[27]
As
stated by the Federal Court of Appeal in Kisana above, at paragraph
24:
. . . an officer is required
to examine the best interests of the child “with care” and weigh them against
other factors.
[28]
For
this reason, the officer’s decision is not transparent, intelligible and
justified as required by the reasonableness standard of review (see Dunsmuir v New Brunswick, 2009 SCC 9,
[2009] 1 S.C.R. 190 at paragraph 47).
[29]
As
a result, the application for judicial review is allowed and the matter is
referred to a different officer for redetermination.
[30]
I need not
deal with the applicants’ arguments with respect to the need for an interview
and establishment in Canada.
[31]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[32]
IT IS
ORDERED that the
application for judicial review is allowed and the matter is referred to a
different officer for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration and Refugee
Protection Act, SC 2001, c 27
|
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.
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.
|
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.
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.
|
Email this Content