Docket: IMM-1209-11
Citation: 2011 FC 1298
Ottawa, Ontario, November 10, 2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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HEE HYUN NAM
HWAN JEE
YAE IN JEE
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Applicants
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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
[1]
This
is an application for judicial review of the decision of a Pre-Removal Risk
Assessment Officer (the PRRA Officer), dated January 10, 2011. The PRRA Officer
found that the Applicants would not face more than a mere possibility of
persecution, nor was it more likely than not they would face torture, a risk to
life or a risk of cruel and unusual treatment or punishment as prescribed by
sections 96 and 97 of the Immigration and Refugee Protection Act, SC
2001, c 27 (IRPA) if returned to the Republic of Korea (South Korea).
[2]
For
the following reasons, the application is dismissed.
I. Background
[3]
Hee
Hyun Nam (the female
applicant) and her 18 year old son, Hwan, and 12 year old daughter, Yae (the
younger Applicants), are citizens of South Korea. The female Applicant
and the children came to Canada with her husband in 2003. The husband
returned to South
Korea
in 2008. He continues to seek contact with the children.
[4]
Since
both children were minors at this time, Hee Hyun Nam filed a
refugee claim on behalf of all the Applicants in August 2008. The claim was
based on fear of domestic abuse by her husband.
[5]
The
Refugee Protection Division of the Immigration and Refugee Board (the Board)
denied the claim on November 28, 2009. It found that adequate state protection
was available to victims of domestic violence in South Korea.
[6]
An
application for judicial review was also denied by this Court on July 27, 2010
(see Nam v Canada (Minister of
Citizenship and Immigration), 2010 FC 783, [2010] FCJ no 959). Justice
Richard Mosley addressed whether the Board should have provided an independent
assessment of the minor children’s refugee claims. At paragraph 29 he found that
the Board adequately focused on the claims of the female Applicant and minor
children in its reasons. The female Applicant was the designated
representative of her children, who did not provide their own Personal
Information Forms (PIF). The Board was entitled to rely on her claim that the
husband never hit the children. Letters provided by the younger Applicants
shortly before the hearing and raising vague allegations of physical abuse were
properly assessed by the Board.
[7]
In
addition, Justice Mosley found that the Board’s assessment of state protection
was reasonable. There was documentary evidence that as a functioning democracy
South
Korea
was able to protect female victims of domestic violence and the Applicant
failed to seek that protection by calling the police or other agencies.
II. Decision
Under Review
[8]
The
PRRA Officer declined to accept affidavits of the younger Applicants recounting
abuse at the hands of their father as new evidence. The abuse occurred prior
to the refugee hearing. The PRRA Officer rejected explanations from the
Applicants that they did not realize beating children constituted physical
abuse as corporal punishment is legal and widely practiced in South Korea and the
children were unaware of what their mother was claiming in her PIF or oral
testimony. It was noted that the same counsel represented the Applicants
throughout the process.
[9]
Documentary
evidence presented by the Applicants was also considered. The PRRA Officer
recognized that an article entitled “Cane of Love” was relevant to an
assessment of country conditions as it discussed attitudes towards corporal
punishment in South
Korea.
Nevertheless, the relevance of the remaining material was not adequately
explained.
[10]
The
PRRA Officer stressed that he/she could only assess new risks that developed
between the hearing and Removal date. The female Applicant stated at the
outset that she and the children feared the husband. This factor was
considered by the Board and the decision was upheld by this Court. Justice Mosley
did not find that the younger Applicants’ claims had been ignored.
[11]
Moreover,
the female Applicant and younger Applicants had failed to provide sufficient
evidence to rebut the presumption that state protection was available to them
in South
Korea.
Even if the abuse experienced was considered new evidence, the father left in
2008 and there was no reason that the children would be compelled to live with
him on returning to South Korea. Relevant to the availability of state
protection was evidence that South Korea was a constitutional
democracy with a good human rights record.
III. Issues
[12]
This
application raises the following issues:
(a) Did
the PRRA Officer provide adequate reasons for rejecting the younger Applicants’
affidavit evidence?
(b) Was
it reasonable for the PRRA Officer to determine that the information provided
was not new evidence within the meaning of subsection 113(a) of the IRPA of the
risks facing the Applicants?
(c) Was
the PRRA Officer’s conclusion that the Applicants failed to rebut the
presumption of state protection in South Korea reasonable?
IV. Standard
of Review
[13]
Adequacy
of reasons may be regarded as one aspect of procedural fairness and therefore
subject to review based on correctness (see Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12, 2009
CarswellNat 434 at para 43).
[14]
The
standard of review applicable to the assessments of a PRRA Officer is
reasonableness (see Hnatusko v Canada (Minister of
Citizenship and Immigration), 2010 FC 18, 2010 CarswellNat 21 at
paras 25-26). 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).
V. Analysis
Issue A: Did
the PRRA Officer Provide Adequate Reasons for Rejecting the Younger Applicants’
Affidavit Evidence?
[15]
The
Applicants assert that the PRRA Officer failed to provide adequate reasons
based on the decision in R v Walker, 2008 SCC 34, [2008] SCJ No 34 at
para 20 where it was stated that “[r]easons are sufficient if they are
responsive to the case’s live issues and the parties’ key arguments.”
[16]
They
contend that the PRRA Officer was not responsive to the explanations given by
the Applicants and simply stated they were unreasonable. It is difficult to
follow the reasoning of the PRRA Officer as to why the Applicants’ explanations
as discussed extensively at the hearing were dismissed, namely no recognition
in South
Korea
of child abuse and the children’s lack of awareness of the information provided
by their mother in support of the claim. The PRRA Officer referred to the
Applicants’ use of the same Counsel throughout the process but failed to explain
why this was relevant.
[17]
Based
on recognition in Kim v Canada (Minister of Citizenship and Immigration),
2010 FC 149, [2010] FCJ no 177 at para 61 that children have distinct
rights and are in need of special protection, the Applicants go as far as to
suggest that the PRRA Officer’s approach also amounts to a violation of their
right to heard.
[18]
I
must nonetheless find in favour of the Respondent as adequate reasons were provided
in this case. The PRRA Officer found that the abuse described in the younger
Applicants’ affidavits occurred prior to the refugee hearing. This was the
critical issue in assessing whether the evidence should be considered as part
of the PRRA. The PRRA Officer expressly recognized the explanations by the
Applicants but suggested that he did not find them persuasive. The PRRA
Officer therefore fulfilled the requirement to provide adequate reasons to the
Applicants.
Issue B: Was
it Reasonable for the PRRA Officer to Determine that the Information Presented
was not New Evidence Within the Meaning of Subsection 113(a) of the IRPA of the
Risks Facing the Applicants?
[19]
Subsection
113(a) of the IRPA confirms that for the purposes of a PRRA the Applicants can
only present new evidence that arose after the rejection of their refugee claim
or that was not reasonably available or that the Applicants could not
reasonably have been expected to present in the circumstances.
[20]
The
Applicants submit that it was unreasonable for the PRRA Officer to find they
had not provided new evidence, particularly the abuse recounted by the younger
Applicants. They dispute the PRRA Officer’s reliance on Kaybaki v Canada
(Solicitor General), 2004 FC 32, [2004] FCJ no 27 at para 11 that the
PRRA process should only be used to assess the development of new risks that
arise between the hearing and removal dates.
[21]
Instead,
the Applicants direct this Court’s attention to Raza v Canada (Minister of
Citizenship and Immigration), 2007 FCA 385, [2007] FCJ no 1632 at para 13
where the criteria for assessing “newness” of evidence within the meaning of
subsection 113(a) is identified. The PRRA Officer should consider, among other
things, whether the evidence is new in the sense that it is capable of proving
the current state of affairs in the country that occurred after the hearing or
proving a fact that was unknown to the refugee claimant at the time of the
hearing. The Applicants claim that evidence relating to abuse of the children,
the father’s continued efforts to contact the children, and that South Korea prevents
victims of domestic violence from hiding their identity fits within this
criteria. They also note that Raza, above, states at paragraph 17 that PRRA
Officers cannot reject evidence solely because it relates to the same risk issue
considered by the Board.
[22]
However,
the Respondent rightly stresses that a PRRA application is not an appeal of a
negative refugee decision, rather it is intended to be an assessment based on
new facts or evidence arising after the Applicant’s negative claim, which
demonstrates that the person at issue is now at risk (Kaybaki,
above at para 11; Perez v Canada (Minister of Citizenship and Immigration),
2006 FC 1379, 2006 CarswellNat 3832 at para 5; Raza, above at paras
12-13). The Applicants did not produce any evidence to demonstrate that they
would be exposed to a new or different risk than contemplated at the time of
Board’s decision. For example, the abuse occurred prior to the refugee
hearing.
[23]
Although
Raza, above, recognizes that evidence cannot be rejected solely on the
basis that it relates to the same risk, the decision goes on to state that “a
PRRA officer may properly reject such evidence if it cannot prove that the
relevant facts as of the date of the PRRA application are materially different
from the facts as found by the RPD.” As a result, the PRRA Officer’s
determination is reasonable and in accordance with Raza.
[24]
Moreover,
the Respondent notes that the issue of whether the Board failed to assess the
younger Applicants’ claims independently based on allegations of abuse suffered
by the children was previously raised with this Court (Nam, above at
paras 27-28). Justice Mosley found that the children’s claims were adequately
considered.
[25]
I
am not persuaded by the Applicants’ arguments that this interpretation
misconstrues the finding in Nam, above. They suggest
that the PRRA application was the first opportunity for the children to rebut
their mother’s evidence by highlighting physical abuse; however, this issue was
discussed prior to its presentation in the form of a sworn affidavit.
[26]
The
PRRA Officer was therefore justified in finding that the information provided,
particularly relating to abuse experienced by the children, was not new evidence
in accordance with subsection 113(a) and Raza, above, because it related
to previous determinations of risks faced by the Applicant.
Issue C: Was the PRRA
Officer’s Conclusion that the Applicants Failed to Rebut the Presumption of
State Protection in South
Korea Reasonable?
(i) Documentary
Evidence
[27]
The
Applicants submit it was unreasonable for the PRRA Officer to find that they
failed to rebut the presumption of state protection based on the documentary
evidence. They point to statements in the “Cane of Love” article that despite
legislative developments, prevailing cultural attitudes ensure the state is
reluctant to intervene in cases of child abuse.
[28]
According
to the Applicants, the second article presented addressing the role of the
Korean National Protection Services is also relevant. They claim it highlights
that children will temporarily be taken into care in response to a crisis but
that they are returned to abusive parents shortly thereafter without any
education. Similarly, the Applicants question why the affidavit evidence of
doctoral student, Sejong Youn, was not taken into consideration as it
highlighted that victims of domestic violence must change their identities in Korea but the
state is unwilling to provide this service. They argue that all of this
detailed evidence was clearly important to the determination of state
protection and should have been explicitly mentioned and analyzed (see Cepeda-Gutierrez
v Canada (Minister of
Citizenship and Immigration), 157 FTR 35, [1998] FCJ no 1425 at para
17).
[29]
The
Respondent contends that the documentary evidence was given reasonable
consideration. The PRRA Officer found the “Cane of Love” article to be useful
in an examination of country conditions but it was not sufficient to rebut the
presumption of state protection. The article highlighted the implementation of
legislation to protect children.
[30]
In
referencing the other documents put forward by the Applicants, the PRRA Officer
did not find them directly relevant to the assessment of state protection. The
second article dealt primarily with children in protective care. The PRRA
Officer acknowledged that the systems in place in South Korea are
imperfect but that the Applicants were not asserting they would be put in
temporary care. It was reasonable to find that the children would remain in
the care of their mother and would not inevitably end up in protective care
because of the actions of their father. Despite evidence that the father had
been seeking contact with the children, the father left the family in 2008 and
there was no reason to believe the children would be compelled to live with
their father, particularly the son over the age of majority.
[31]
The
PRRA Officer rejected Sejong Youn’s evidence because it related to witness
protection programs that were not expressly at issue in the present case. It
did not describe similarly situated persons.
[32]
It
should be borne in mind that the Applicants must provide clear and convincing
proof of the state’s inability to protect (see Canada (Attorney
General) v Ward, [1993] 2 S.C.R. 689, [1993] SCJ no 74 at 726). While
the Applicant would have preferred that some of the documentary evidence was
seen as directly relevant or given greater weight, this is a matter within the
discretion of the PRRA Officer. Having considered and referred to all of the
evidence raised by the Applicant, it was reasonably open to the PRRA Officer to
find that the presumption of state protection remained intact.
(ii) Failure
of Children to Seek State Protection
[33]
The
Applicants insist that the PRRA Officer unreasonably faulted the children for
failing to seek state protection in South Korea (see Lorne v Canada
(Minister of Citizenship and Immigration), 2006 FC 384, [2006] FCJ no 487
at para 18; Charles v Canada (Minister of Citizenship
and Immigration), 2007 FC 103, [2007] FCJ no 137 at paras 5-6). They
further assert that the younger Applicants should not be required to seek
protection when it would not be reasonably forthcoming (see Ward, above).
[34]
I
note, however, that the PRRA Officer did not reject the application because the
children failed to seek state protection. It recognized that legislative
changes had been enacted to assist victims of child abuse and that the children
would be in the care of their mother. As a result, it was not unreasonable to
suggest that state protection would not be of immediate concern and, if
required, could potentially be accessed by the children.
(iii) Reliance
on South Korean Democracy
[35]
The
Applicants also take issue with the PRRA Officer’s deferral to South Korea as a
democracy with a good human rights record in its assessment of state
protection. They highlight previous determinations by this Court that focus on
the practical and operational inadequacies of state protection (see for example
Zaatreh v Canada (Minister of Citizenship and Immigration), 2010 FC
211, [2010] FCJ no 247 at para 55). They suggest that evidence was brought
forward to the PRRA Officer related to the inadequacies of state protection.
[36]
It
was, however, reasonable for the PRRA Officer to make reference to the nature
of South Korean state. The more democratic the state, the higher the
burden on the applicants to prove that they have exhausted all available
courses of action (see Kadenko v. Canada (Minister of
Citizenship and Immigration) (1996), 143 DLR (4th) 532, [1996] FCJ no
1376 (FCA) at para 5). While state protection must be adequate, it need
not be perfect (see Canada (Minister of Employment
and Immigration) v Villafranca (1992), 99 DLR (4th) 334, 18 Imm LR (2d)
130 at para 7).
[37]
Since
the burden in a state such as South Korea is significant, it was
within the range of possible, acceptable outcomes to find that the Applicants
had failed to rebut the presumption of state protection. The documentary
evidence was considered along with recognition that the children would have
state protection available to them and they were likely to remain in the care
of their mother.
VI. Conclusion
[38]
The
PRRA Officer provided adequate reasons for rejecting the affidavit evidence of the
younger Applicants. It was reasonably open to the PRRA Officer to find that
the Applicants had failed to present new evidence related to potential risks or
rebut the presumption of state protection.
[39]
The
Applicant submitted written representations with respect to the following
question proposed by the Applicant as being a question of general importance:
Should the evidentiary requirements under
s. 113 of the Immigration and Refugee Protection Act be nuanced to
reflect children's right to be heard and the need for special procedural
safeguards to accomplish this in view of their particular vulnerabilities as
set out in the preamble to the Convention of the Child, and Article 12
thereto?
[40]
I
have reviewed this material and find that the question is vague and in large
measure invites the Court to unilaterally make a legislative amendment to section
113 of the IRPA in accordance with the policy objectives advanced by counsel
for the Applicant in support of this application. This is not the role of the
Court. In any event, given my conclusion that the PRRA Officer had not erred
in finding that the Applicants had failed to present new evidence in this
matter, it follows that the proposed question would not be determinative of
this case and as such no question will be certified.
[41]
Accordingly,
this application for judicial review is dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed.
No question is certified.
“ D.
G. Near ”
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