Date: 20071005
Docket: IMM-4941-06
Citation: 2007 FC 1023
Ottawa, Ontario, October 5, 2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
KI SUNG GIL (KIL), YUN HO KIL
(GIL),
and SOO JIN KIM
Applicant(s)
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent(s)
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review by Soo Jin Kim, Ki Sung Gil and Yun Ho
Kil challenging a decision of the Immigration and Refugee Board (Board)
rendered on August 8, 2006.
Background
[2]
Ki
Sung Gil and Soo Jin Kim are spouses and Yun Ho Kil is their minor child. They
are all Korean nationals who came to Canada on November 8, 1999.
Their claim to refugee protection was not made until May 2004 and it was based
on allegations of abuse suffered by Ms. Kim in Argentina dating back
to 1989. Ms. Kim lived in Argentina from 1987 to 1992 and, through
that time, she was a high school student. She alleged that she was victimized
by a male friend of her brother, namely Hyo Sik Shim. She asserted that Mr. Shim
stalked and threatened her and, on one occasion, raped her. These incidents
were never reported to the Argentinian police. Ms. Kim claimed that she was so
fearful of Mr. Shim that she stayed mostly at home for six months and only went
out in the company of her sister. She also said that she was sufficiently
traumatized by the rape that she attempted suicide by overdose. All of this
caused her to return to Korea in 1992.
[3]
Ms.
Kim and Mr. Gil were married in Korea in 1997 and their son
was born there in 1998. Notwithstanding Ms. Kim's return to Korea, she claimed
that Mr. Shim attempted to contact her there and threatened to harm her and her
family. She said that this contact by Mr. Shim was sufficiently troubling that
the family left for Canada in 1999. She claimed that they did not
immediately seek refugee protection in this country because of a
misapprehension that lawful immigration status would be automatically conferred
after five years of residency.
Board Decision
[4]
The
Board described Ms. Kim's testimony as confusing and glaringly inconsistent.
In its lengthy decision, the Board identified the following credibility
concerns:
- an inconsistency in
her characterization of Mr. Shim as a "gangster" but not an
"evil" person;
- an inconsistency
about her stated reasons for frequently changing schools in Argentina and
whether this was motivated by a fear of Mr. Shim or for financial
reasons. The Board described her evidence on this point as
"convoluted";
- several differences
between her testimony and her Personal Information Form (PIF) declarations
about the details of an alleged assault by Mr. Shim upon another student
and other related incidents;
- an inability to
recall the name of one of the schools she claimed to have attended in Argentina;
- her failure to
disclose in her extensive PIF that Mr. Shim had continuously proposed
marriage to her including one proposal made after her return to Korea. This
was found to be inconsistent with her statement in the initial Record of
Examination that Mr. Shim had never approached her after the alleged rape;
- an inconsistency
between her testimony that she was at her mother's home
when Mr. Shim called to threaten her family and her PIF declaration that
she was then living in a "new apartment";
- her inconsistent
evidence about Mr. Shim’s behaviour in Korea. The
evidence she gave of stalking was a "feeling" of Mr. Shim's
presence. The Board summed up her evidence on this as follows:
I do not understand the claimant. First
she claims that Mr. Shim stalked her from the day she returned to Korea until 1993. Then he stopped stalking
her and would call her once or twice per month. And now she is saying that it
was not when she was in Korea that this happened. She is
contradicting herself at every turn. Her evidence is totally unreliable.
- her confusing and
inconsistent testimony about whether Mr. Shim was supposedly in Korea when he
made calls to her sister;
- her inconsistent
evidence about whether Mr. Shim had ever made direct contact with her in Korea;
- her implausible
evidence about Mr. Shim's ability to obtain confidential
personal information about her from Korean authorities; and
- the inconsistency
between her explanation for the long delay in advancing a protection claim
(i.e. that it was not necessary) and her knowledge that she had no lawful
status in Canada and was, therefore, at risk of detection.
[5]
On
the basis of the foregoing, the Board drew the following credibility
conclusion:
The claimant has tried to make a
connection between things that allegedly happened in Argentina and her stay in Korea prior to coming to Canada. Her story, however, has
been inconsistent throughout. I do not have any persuasive evidence before me
that Mr. Shim, to whom she refers, ever left Argentina and went to Korea in search of her as she would have me
believe. In fact, I find that there is very little, if any truth in any of her
story. I find on a balance of probabilities that her entire story was
fabricated for the sole purpose of advancing her claim. I do not believe that
she was stalked by Mr. Shim while in Korea. I do not believe either herself, her
mother or her sister received any call from Mr. Shim in Korea and, consequently, find that she does
not have good grounds for fear based on her allegations.
…
The gravity of the inconsistencies,
omission of incidents, implausibilities in the absence of a reasonable
explanation coupled with the element of delay in claiming refugee status in Canada, is such that it leads the
panel to find that the lack of credibility extends to all relevant evidence
emanating from the claimant and renders her entire testimony not credible. The
panel finds, on a balance of probabilities that the claimant has fabricated the
allegations to the narrative to extend a refugee claim.
Issues
[6]
(a) What
is the appropriate standard of review for the issues raised by the Applicants?
(b)
Did
the Board err in its treatment of the evidence?
(c)
Did
the Board breach the duty of fairness?
Analysis
[7]
The
Applicants challenge the Board's adverse credibility conclusion but, in so
doing, they acknowledge that the standard of review is patent unreasonableness.
With respect to the procedural fairness issues they raise, the standard of
review is, of course, correctness: see Benitez v. Canada (Minister
of Citizenship and Immigration), 2006 FC 461, [2006] F.C.J. No. 631 at
para. 44.
[8]
Much
of the Applicants' argument on this application was directed at excusing or
explaining some of the inconsistencies that the Board relied upon in
rejecting Ms. Kim's evidence. The Applicants have identified a
number of relatively minor evidentiary issues touching on collateral matters
and assert that the Board misinterpreted Ms. Kim's testimony or took her evidence
out of context. They argue, in addition, that the Board was unduly influenced
by testimonial lapses concerning "minute" or "peripheral"
details. They say that the Board failed to examine the reliability of the
evidence bearing on the central events of persecution described by Ms. Kim - most
notably the rape and the subsequent stalking events.
[9]
There
is no question that a number of the Board's credibility
concerns arose out of evidentiary inconsistencies that were not central to the
Applicants' allegations of persecution. A good example of this was the Board’s
reliance on Ms. Kim's failure to recall the name of one of the
schools she had attended in Argentina. If the Board’s
credibility conclusion had been based exclusively - or even primarily - on such
matters, this argument might have succeeded. That, though, was not the case.
Ms. Kim's evidence was throughout confusing, inconsistent and, in a number of
respects, implausible. For example, her evidence of Mr. Shim's alleged
stalking of her in Korea was confusing and inconsistent to the point of
being virtually incoherent. It is impossible to tell from her testimony
whether she was claiming that Mr. Shim had followed her to Korea from Argentina or whether
she simply “felt” that he had. The same concern arises from her evidence
concerning Mr. Shim's alleged assaultive behaviour at her school and
her reasons for moving from school to school. These were not peripheral issues
but went squarely to the issue of persecution. The Board’s rejection of
Ms. Kim’s evidence on these critical aspects of her protection claim was
entirely reasonable in the face of her testimonial lapses.
[10]
The
Applicants are critical of the Board’s reliance upon contradictions between
Ms. Kim’s initial immigration interview and her testimony. They describe
those contradictions as immaterial and they say that the Board gave them
“unwarranted weight”. In any event, they argue that these problems should be
excused because they arose from alleged translation problems.
[11]
Ms. Kim
cannot fairly criticize the Board for the fact that her testimony was confusing
and inconsistent. She had the responsibility to offer a clear and convincing
narrative and to provide plausible explanations for any inconsistencies that
had arisen earlier in the process. She was represented by counsel and suffered
from no apparent testimonial impediments. Her translation excuse was soundly
rejected by the Board largely because she accused the translator of bullying
and improper conduct. The Board’s scepticism about this explanation was fully
warranted. What the Board was left with was a wholly muddled and implausible
story about Ms. Kim being stalked by Mr. Shim in Korea from the day
of her return there from Argentina in 1993. Even at that,
it is not clear that she actually believed that Mr. Shim was ever in Korea or whether
his alleged attempts to contact her were all carried out from Argentina. How she
would be any safer in Canada was never plausibly explained.
[12]
The
Applicants contend that the Board erred by concluding that a single incident of
rape could not constitute persecution. While it is true that the Board member
did make a questionable observation to that effect during the hearing and was
strongly challenged for it, the final decision was limited to a finding that no
rape had ever occurred. I cannot conclude that an arguably injudicious point
made by the Board during argument constitutes a part of the decision under
review. In the result, this argument must fail.
[13]
The
Applicants also argue that the Board was insensitive to Ms. Kim's reasonable
explanations for failing to report her rape to the Argentinian authorities.
Her explanation for this was that her cultural norm was one of shame and
isolation so that going to the authorities was never contemplated. The problem
with this submission is that the Board decision nowhere suggests that Ms. Kim's explanation
was not accepted at face value. Apart from acknowledging her evidence, there
is no indication that the failure to report the rape incident was considered by
the Board in rejecting Ms. Kim's credibility. Once again, the Board's factual
conclusion was that no rape had occurred.
[14]
Any
fair reading of Ms. Kim's testimony leads inevitably to the conclusion that her
evidence was wholly unreliable. While it is almost always possible to take
issue with the few aspects of a decision like this one, it is not the purpose
of judicial review to reassess the weight assigned by the Board to the
evidence. It is also not the role of the Court to take issue with the Board's factual
inferences provided that there is some evidence to support them. The fact that
the Applicants are able to make a case for the drawing of other inferences on
the same evidence does not open up the Board's findings to successful review.
Fairness
[15]
The
Applicants also challenge this decision on the ground of fairness. They say
that the Board was unduly aggressive in its treatment of Ms. Kim which led to
areas of testimonial confusion and misunderstanding. While there was some
evident frustration by the Board in dealing with Ms. Kim’s testimony, the
member’s impugned remarks do not, to my eye, create a reasonable apprehension
of bias or otherwise exceed the boundaries of fairness recognized in other
decisions of this Court: see the authorities cited in Chaudhry v. Canada
(Minister of Citizenship and Immigration), 2006 FC 1015, 56 Imm. L.R.
(3d) 82 at para. 13.
[16]
The
further argument that the Board took too long to render its decision has no
merit. While it is always preferable to issue decisions in a timely way, a
delay of five months after the completion of the hearing raises no concern in
law. Indeed, the Board decision in this case reflects a clear appreciation of
the issues and the evidence, all of which is carefully set out in 31 pages of
reasons.
[17]
The
Applicants criticize the Board’s finding that no rape occurred having regard to
its stated reluctance to inquire into the precise details of that claimed
assault. They say that before the Board could reasonably reject that aspect of
her claim it had to allow her the opportunity to fully describe it. Such an
argument might have been persuasive but for the fact that it was Ms. Kim's counsel who
urged the Board not to venture into those details to which the Board
acquiesced. All of this arose under questioning of Ms. Kim by the Refugee
Protection Officer (RPO) and led to the following exchange:
01:06:09 COUNSEL: May
I ask a question at this point? I’m wondering whether it’s really required to
go into the detail of what happened between Mr. Shim and the claimant, if
it’s possible,
RPO OFFICER: I’m
not intending to ask…
MEMBER: Shh,
let her finish.
RPO OFFICER: Sorry.
01:06:43 COUNSEL: I
wanted to know the extent of the description (inaudible) I don’t want her to…
MEMBER: No
no no no, I’m not interested in what I would call lurid details myself, it
doesn’t do anything. Besides which, if these things really happened I don’t
want her to relive that. And I don’t think that’s what you’re trying to do.
01:07:22 RPO OFFICER: I
suppose I would like a confirmation, just a plain statement, something
happened. I want to know what she did about it after this, I’m not asking for
details.
01:07:34 COUNSEL: If
you allow me, I would like to ask…member, Mr. Gil, how he feels, if he
wishes to be…
MEMBER: But
you see, like I said, we are not going to get into (inaudible) details about
what happened. Mostly when it happened, where it happened, and what did she do
about it, those are the things that I believe would cause a problem, so…
01:08:11 RPO OFFICER: Ms. Kim
I don’t want to ask you details about what happened but I would like your
confirmation that this man did assault you and where did this happen?
[18]
On
this issue the Board cannot be faulted for steering away from a sensitive area
of evidence at the request of counsel for the Applicants.
[19]
In
conclusion, I can identify no errors by the Board which are sufficient to meet
the applicable standards of review and this application is dismissed.
[20]
The
Applicants have proposed the following certified question:
In a sexual assault case, if the Board
found that there is a lack of credibility regarding peripheral events, could
the Board dismiss the material points of the evidence?
[21]
Because
the fundamental premise of this question is not supported by this decision
(that the adverse credibility finding was based solely on peripheral events),
it is not appropriate for certification. In the result, no question will be
certified.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is dismissed.
“ R. L. Barnes ”
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