Date: 20110211
Docket: IMM-2332-10
Citation: 2011 FC 169
Ottawa, Ontario, February 11,
2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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SUK BEOM HAN a.k.a. SUKBEOM HAN
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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
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act (IRPA) for judicial review of a decision,
dated March 31, 2010, of the Refugee Protection Division (RPD) of the
Immigration Refugee Board (IRB), rejecting the applicant’s claim for refugee
status and the finding that he is not a person in need of protection.
Facts
[2]
The
applicant, Mr. Han, originated from the Republic of Korea. He arrived
in Toronto on July 13,
2008. He filed a refugee claim on August 8, 2008 which was denied by the IRB
on March 31, 2010. Mr. Han claimed to be fleeing illegal private money lenders
(or “loan sharks”) from whom he had borrowed money in 2005. He had also
borrowed money from legitimate lending institutions. He claimed that a
dishonest employee embezzled money from his restaurant and construction
businesses. As a result of the embezzlement, the viability of the businesses were
compromised. While the IRB found that the testimony given by Mr. Han was
unclear as to whether he borrowed the money before or after the embezzlement
occurred (i.e. did his employee embezzle funds that comprised the business and
which forced the applicant to procure these loans, or did the employee embezzle
funds after Mr. Han had procured the loans to save the business), the IRB
decided that the embezzlement was the impetus for Mr. Han to procure the loans.
[3]
The
IRB found that Mr. Han did not report the embezzlement to the police. Mr. Han
allegedly sold the businesses and his home in order to repay the principal
balances, but not the interest, on the debts incurred to the lending
institution and the loan sharks. His failure to pay the interest to the loan
sharks was apparently the source of subsequent threats against his family and
the violence allegedly suffered.
[4]
The
applicant supplied at various instances, inconsistent accounts of the amount of
money borrowed, of who actually embezzled from him, of how long he was
hospitalized when he was allegedly beaten by the loan sharks, and who
telephoned the police to report the alleged assault. The IRB found his
testimony lacking in credibility.
[5]
The
IRB also drew a negative inference about the applicant’s credibility from his
responses to questions about his wife and child. The loan sharks had
apparently threatened to sell Mr. Han’s wife to a brothel and to bury his son
alive. Mr. Han’s wife and son arrived in Canada one month
after he did and also made refugee claims; however, his wife had left the
applicant by the time his IRB hearing took place and did not appear to
corroborate his testimony. The IRB also drew a negative inference from the
fact that the applicant was unable to provide proof of his marriage.
Issue
[6]
Under
a Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 reasonableness standard of review, is the IRB’s decision within the
acceptable range of outcomes defensible on the facts and law?
Credibility
[7]
Counsel
for the applicant argued that the IRB’s credibility findings were not justified
and that the IRB ignored relevant evidence in relation to the determination of state
protection.
[8]
With
respect to credibility, counsel for the applicant notes that to warrant an
adverse finding on credibility the inconsistencies must be sufficiently serious
and must concern matters which are relevant to the core issues being
adjudicated. The applicant maintains that the inconsistencies produced by the
applicant are minor. In this case, however, they are not minor inconsistencies
as they go to the very heart of the refugee claim, and on these issues the IRB decision
indicates that Mr. Han’s narrative simply could not be believed.
[9]
In
sum, the inconsistencies noted were rooted in the evidence, and related to core
issues of the claim. Where the IRB rightly expected or looked for
corroboration, none was forthcoming. The IRB was understandably sceptical of
the claim given the complete absence of documents. Notwithstanding that the
applicant testified as to the existence of loans totalling 300 million won, the
sale of a business, the sale of his home, a beating resulting in
hospitalization, a marriage, not a single document was produced until the
supplementary affidavit which was filed in November of 2010, here, only a bank
satisfaction statement.
[10]
With
respect to the discrepancy in the amount of the loan and related details, the
applicant said in his affidavit in support of leave:
9. In an effort to keep the business
afloat, I borrowed 200 million won from loan shark named Park Sang Sun
and 100 million won from financial institutions.
12. In order to pay the interest, I
borrowed money from another loan shark named Choi Suk Chul; 100 million won.
[11]
During
his intake interview, the applicant testified that he borrowed 2 million won in
2005. The applicant’s testimony before the IRB was:
Member:… How much did you burrow [sic] from the
bank… what was the amount in your personal information form? Tell me in your
South Korean funds… I will cut to the chase, was it 100 million won?...
Claimant: Twenty million won.
Member: Twenty million or one or… from the bank.
Claimant: Twenty million won from the bank.
Member: Because here in your personal form it
says you borrowed 100 million won from financial institutions, is that correct?
Claimant: I burrowed [sic] 10 million won from
the private money lender… it was 10 million from Mr. Park.
Member: How much did you burrow [sic] from Choy
Sak Chu (ph)?
Claimant: I borrow 10 million won from
that man.
[12]
While
some aspects of his evidence were unclear and perhaps ambiguous, the IRB found
the core elements of the applicant’s evidence to be seriously deficient.
[13]
Central
to the claim was the loan itself. Three different versions of the principal amount
of the loan were offered; 20 million won; 100 million won, and finally a loan
document, tendered after the decision under review was rendered, established a
loan of 190 million won. The evidence was also inconsistent as to when the
loan was taken out and by who. The document tendered in the subsequent
affidavit indicates that the loan was taken out in 2007 by his wife, whereas in
his Personal Identification Form (PIF) the applicant indicated that he took out
the loan in 2005.
[14]
A
related flaw in the applicant’s testimony as identified by the IRB arose from
inconsistency in the nature of the embezzlement scheme itself. In his PIF, the
scheme involved an employee and a manager who worked together; in his oral
testimony, it was his employee alone. When confronted with this, he told the
IRB that there were translation problems and he did not understand the
question. On a matter as central to the scheme as this, the IRB rightfully
expected clarity.
[15]
Finally,
the IRB found the applicant’s claim not to be credible because the sequence of
events leading to the claim for status was inconsistent. For the purposes of
these reasons it is sufficient to note that the version of the events leading
up to the claim differs from the applicant’s affidavit and his oral testimony
before the IRB. There were discrepancies as to the timing and the source of
the loans, how they were paid off and the timing of the loans in relation to
the embezzlement. In sum, the conclusion of the IRB that the applicant’s story
was not credible was rooted in the evidence and was reasonable.
State Protection
[16]
The
IRB also rejected the applicant’s claim on the basis that he did not rebut the
presumption of state protection. Apart from his bare assertion in his PIF that
here was collusion between the police and loan sharks, there was no support for
this claim before the IRB. Indeed, while the country condition reports
acknowledge that loan sharking is a problem in Korea, there is no
evidence of corruption. As the IRB noted, Korea ranks highly
on the transparency and corruption indices, and is also a country with strong
democratic systems.
[17]
The
evidence before the IRB demonstrates that there is a problem with private loans
and exorbitant rates of interest in the ROK. Counsel for the applicant
correctly noted that the existence of proposed legislation to address this
problem is irrelevant to the assessment of the need for protection; it is at
the operational level that protection must be evaluated: Toriz Gilvaja v
Canada (Citizenship and Immigration), 2009 FC 598; Garcia Bautista v Canada (Citizenship
and Immigration), 2010 FC 126. The point of reference is not what the police
or the legislature propose to do about a problem, but rather what is actually
transpiring on a day to day basis. Evidence of state protection must not be
weighed against proposed remedial measures for which there is no operational
consequence, but against evidence of actual protection.
[18]
Complete
effectiveness of the laws and protection of the safety of all citizens is a
standard which few countries, including Canada, can
achieve: Cosgun
v Canada (Citizenship
and Immigration), 2010 FC 400, para. 51. The existence of
criminality, even serious criminality, does not trigger a right to protection
under s. 97 of the IRPA. There was, before the IRB, evidence of
measures having been adopted, and their related enforcement, by Korea to address
this issue. Simply put, there was ample admissible evidence before the IRB to
support its conclusion on the existence of state protection.
[19]
While
there was much argument about whether the applicant called the police, did not
call the police, or whether the hospital or a neighbour called as his proxy,
the evidence falls far short of establishing clear and convincing evidence of a
failure of state protection. There remained the question as to who contacted
the police. On this central issue, the IRB was confronted with inconsistent
evidence. In his affidavit in support of leave, the applicant said that he did
not contact the police because he did not think they could provide protection.
As noted, in the case of Korea, the presumption of state protection is
high.
[20]
There
can be no challenge to the finding by the IRB that the applicant never reported
the embezzlement to the police. His explanation was that “… he was too busy
preparing to come to Canada.” In his affidavit in support of leave he
says he did not report the embezzlement to the police because he was
pre-occupied with keeping his business viable.
9. At the time, I did not report any of
these incidents to the police, regretfully; my mind was elsewhere as I was most
concerned with keeping my business viable. (Affidavit of Suk Beom Han, sworn
May 25, 2010, Applicant’s Application Record, p. 16, para. 9)
[21]
Faced
with this evidence, together with the finding that the ROK was a robust
democratic state, and given that there is no quarrel with the legal test as
framed, the approach of the IRB to the issue of state protection, from the
legal and factual perspective, is reasonable.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application
for judicial review be and is hereby dismissed. No question for certification
has been proposed and none arises.
"Donald
J. Rennie"
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