Date: 20080520
Docket: IMM-4799-07
Citation: 2008 FC 623
Ottawa, Ontario, May 20,
2008
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
JUNGHIE
PARK
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant is an adult female citizen of South Korea. She has
been residing in Canada almost continuously since December 2000 on the
basis of a series of six month visitor’s visas. The Applicant claimed refugee
protection in Canada under both
subsections 97(1)(a) and (b) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (IRPA). She did not claim under section 96 of IRPA. The
Applicant claimed that she would be subjected to torture or a risk to her life
or a risk of cruel and unusual treatment or punishment of she were to be
returned to South
Korea.
[2]
The
Immigration and Refugee Board, Refugee Protection Division, considered the
Applicants claim and, in a written decision dated October 30, 2007 rejected that
claim.
[3]
In
coming to this decision, the Panel did give consideration to section 96 of IRPA
and determined that none of the grounds set out in that section were applicable
to the circumstances of the Applicant. As to section 97(1)(a) the panel found
that the danger of torture or harm was in respect of the Applicant’s estranged
husband still living in South Korea. That husband was not
an agent of the state thus section 97(1)(a) was inapplicable. Respecting
section 97(1)(b) the panel found that South Korea offers good state
protection and that the Applicant would not be at risk of harm from the husband
if she did not seek him out which left considerable space within the country
available for refuge. The Applicant seeks judicial review on two grounds as
set out in the Notice of Application:
a)
the
Board failed to observe cultural perspectives in regard to the relationship
between spouses in the applicant’s generation in the country where the
applicant is originated;
b)
the
Board based its decision on an erroneous finding of fact in terms of the
reality in the protection for abused in the country where the applicant is
originated.
[4]
These
two grounds pertain to section 97 not section 96 of IRPA. Since the Applicant
did not specifically raise section 96 before the panel, even though the panel
considered it given that the Applicant was unrepresented, and given that it was
not raised by the Applicant in her Notice of Application filed with this Court,
it requires no further consideration.
[5]
The
two grounds raised by the Applicant pertain to factual determinations made by
the panel. In that regard the criterion for review is that of reasonableness
as established by the Supreme Court of Canada in Dunsmuir v. New
Brunswick,
2008 SCC 9. Considerable deference must be afforded to the panel in
determining the matters put in issue by the Applicant as such matters lie
squarely within the panel’s expertise.
[6]
As
a preliminary matter, the Applicant has filed her own affidavit with the Court
which raises a number of factual allegations, including an allegation that
while she was younger in South Korea she was sold for slave trade (human
trafficking), suffered forceable confinement, forced labour, abuse and rape
which in paragraph 27 of her “Observations” filed with this Court the Applicant
says that she has “…never told anyone about this including my family until
today in writing this statement”. While such allegations are serious, they
were never made in the proceedings under review and cannot now be considered in
the context of a review of the reasonableness of the decision of the panel. It
is acknowledged that evidence going to issues of jurisdiction or natural
justice or lack thereof can be received in subsequent Court proceedings but not
evidence in respect of issues that were before the panel or should have been
placed before the panel (Kante v. Canada (Minister of Public Safety and
Emergency Preparedness) 2007 FC 109 at paras. 9 & 10).
[7]
At
the hearing before me, the Applicant was represented by her son. Counsel for
the Respondent did not object as it appears that the Applicant speaks little
English. Her son raised, for the first time at the hearing, an objection as to
the accuracy of the translation of his mother’s testimony before Board. The
Applicant and her son had the transcript for at least one month and raised no
issue except at the hearing. The challenge to the accuracy was made only on
the basis of what the Applicant’s son says that his mother recollected having
said at the hearing. When asked to give their best example of an error, it was
as to whether a stronger word was used to describe a family break up.
Respondent’s counsel did not consent to this issue being raised at this time.
I conclude that the issue cannot be raised, the Applicant had the transcript
for at least month without attempting to raise the issue there is no
independent means to verify the transcripts accuracy and the challenges raised
do not make a material difference to the decision under review.
[8]
The
Applicant represented herself before the panel and before the Court and has
perhaps, because she did not seek or have professional advice, she made a
number of procedural errors and omissions. The Court cannot however, because a
person chooses not to have representation, make orders and judgments that are
outside its jurisdiction or beyond what it is asked, in the Notice of
Application, to do.
[9]
As
to the issues raised by the Applicant in the Notice of Application, I have not
been persuaded that, on the basis of the evidence that was before the panel,
that the panel made a decision that was not reasonable. The Applicant’s
evidence as to her husband’s activities was before the panel and the panel in
its determination acknowledged the husband’s abuses but stated that the
Applicant would only be exposed to such abuses if she sought out the husband
and that state protection was adequate and that there was considerable space in
the country where safe refuge could be obtained.
[10]
An
Applicant is expected to make reasonable efforts to secure state protection (Castro
v. Canada (MCI) 2007 FC 40 at para. 14). Here the Applicant acknowledges
that while a neighbour did on one occasion call the police when it appeared
that the Applicant was being abused by her husband, the Applicant did not
pursue the matter apparently out of compassion for him and on the basis that he
had fathered her child. While the failure to pursue the matter for such
reasons may be justifiable from the Applicant’s point of view, it does not form
a basis upon which a claim for refugee status should be granted.
[11]
The
application will be dismissed. There is no question for certification. No
order as to costs.
JUDGMENT
For
the Reasons given:
THIS COURT ORDERS that:
1.
The
application is dismissed;
2.
No
questions for certification;
3.
No
Order as to costs.
"Roger
T. Hughes"
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