Date: 20080411
Docket: IMM-4283-07
Citation: 2008 FC 467
Toronto, Ontario, April 11, 2008
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
HA YOON SONG,
SEON OCK SHON,
HYE IN SONG [By her litigation guardian],
HYE WON SONG [By her litigation guardian]
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, S.C. 2001, c. 27 (the Act), for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee Board
(the Board) dated September 6, 2007, wherein the Board determined that the
applicants were not Convention refugees according to Section 96 of the Act, nor
"persons in need of protection" according to Section 97 of the Act.
BACKGROUND
[2]
The
applicants, a husband, wife, and two young girls, all citizens of South Korea, claim a
well founded fear of persecution and a risk to their lives at the hands of loan
sharks in South
Korea.
[3]
The
female applicant alleged that the loan sharks were using violence and sexual
abuse to attempt to secure payment of a sum of money lent in May or June 2000.
After marrying the female applicant in 2003, the male applicant alleged that he
and his two daughters were also targeted and attacked in order to secure
payment of his wife’s loan.
[4]
The
applicants arrived in Canada on August 9, 2005 and claimed refugee
protection on September 9 of the same year.
[5]
In
a decision dated September 6, 2007 the Board rejected the applicants’ claims
for protection because the applicants had failed to discharge the burden of proof
that state protection is unavailable to them. As a functioning democracy,
there existed a presumption that South Korea was capable of
protecting its citizens which would require clear and convincing proof to be
rebutted.
STANDARD OF REVIEW
[6]
Recently,
in the case of Eler v. Canada (Minister of Citizenship and Immigration),
2008 FC 334, my colleague Madam Justice Dawson examined the standard of review
applicable to the issue of state protection and concluded that in light of the
recent decision of the Supreme Court of Canada in Dunsmuir v. New
Brunswick,
2008 SCC 9, the applicable standard is that of reasonableness.
[7]
According
to Dunsmuir, above, at para. 47, the analysis of the Board’s
decision on a standard or reasonableness will be concerned with “the existence
of justification, transparency and intelligibility within the decision-making
process [and also with] […] whether the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.”
ANALYSIS
[8]
The
determinative issue in the present case is the availability of adequate state
protection in South
Korea.
[9]
The
applicants submit that notwithstanding that South Korea is a
constitutional democracy, maintains effective control of its security forces,
and respects human rights, the police failed to provide protection after being
approached, which resulted in the female applicant being sexually assaulted.
[10]
In
analyzing state protection the relevant standard is not perfection, which is
unattainable in even the most developed democracies, but rather whether the
available protection is adequate (Canada (Minister
of Employment and Immigration) v. Villafranca, [1992] F.C.J. No. 1189 (QL);
Zalzali v. Canada (Minister of Employment and Immigration), [1991] 3
F.C. 605, [1991] F.C.J. No. 341 (QL), at para. 21). The police failure to
protect the female applicant, while significant, may not be in and of itself
indicative of inadequate state protection, but rather of a local protection
failure (Di Nasso v. Canada (Minister of Citizenship and Immigration),
2003 FC 1354, [2003] F.C.J. No. 1793 (QL), at para. 12).
[11]
Pursuant
to (Canada (Attorney General) v. Ward, [1993] 2
S.C.R. 689, at pp. 724-725, absent “clear and convincing confirmation” of a
state’s inability to protect, it is presumed that a state is capable of
protecting its own citizens. Further, the Supreme Court of Canada indicated that
evidence of a state’s inability to protect may include “testimony of similarly
situated individuals let down by the state protection arrangement or the
claimant's testimony of past personal incidents in which state protection did
not materialize.”
[12]
Documentary
evidence of country conditions may also provide evidence of a state’s
willingness or ability to protect its citizens by demonstrating both the existence
and effectiveness of mechanisms of protection (Lopez
v. Canada (Minister of Citizenship and Immigration),
2007 FC 1341, [2007] F.C.J. No. 1733 (QL), at para. 19). Further, where there
is documentary evidence before the Board which contradicts its conclusions, the Board must provide reasons why it did not consider this evidence
relevant or trustworthy (Simpson v. Canada (Minister of Citizenship and
Immigration), 2006 FC 970, [2006] F.C.J. No. 1224 (QL), at para. 44; Castillo
v. Canada (Minister of Citizenship and Immigration), 2004 FC 56, [2004]
F.C.J. No. 43 (QL), at para. 9; Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1425 (QL), at para. 15). A
failure to do so will result in a reviewable error.
[13]
It
is also well established that the burden of exhausting avenues of state
protection increases with the level of democracy exhibited by the state in
question (Kadenko v. Canada (Solicitor General) (1996),
143 D.L.R. (4th) 532, at p. 534, [1996] F.C.J. No. 1376 (QL), at
para. 5; Hinzman v. Canada (Minister of Citizenship and Immigration),
2007 FCA 171, [2007] F.C.J. No. 584 (QL), at para. 57).
[14]
As correctly stated by the Board, South Korea is a functioning democracy and
as such it is presumed to be capable of protecting its citizens. As indicated
by my colleague Madam Justice Johanne Gauthier in Capitaine v. Canada
(Minister of Citizenship and Immigration), 2008 FC 98, [2008] F.C.J. No.
181 (QL), at para. 21 “In developed democracies such as the U.S. and Israel, it
is clear from Hinzman (at paras. 46 and 57) that to rebut the
presumption of state protection this evidence must include proof that an
applicant has exhausted all recourses available to her or him.”
However, the situation is different for developing democracies whose position
on the “spectrum of democracy” may dictate a weaker presumption, which is not the
case with South Korea.
[15]
I
would add that the failure to refer to some documentary evidence regarding
violence against women was not fatal to the decision given that it does not
directly relate to the issue of state protection.
[16]
In the same vein, I find the applicants’
argument that the Board should have addressed the excerpt from the U.S.
Department of State Report (March 8, 2006) indicating
that corruption had not been eradicated from everyday life in South Korea unpersuasive. This excerpt does not stand
for the proposition that corruption prevails among South Korean authorities and
does not constitute contradictory evidence which must be addressed pursuant to Cepeda-Gutierrez,
above.
[17]
While
the applicants’ attempts to secure police protection were unfruitful, in light
of the documentary evidence which refers to the state’s ability to protect
against loan sharks and in light of the fact that they did not make any further
attempts to seek protection, it was reasonable for the Board to conclude that
the state was able to protect the applicants.
[18]
As
for the applicants’ submission that the Board committed errors of fact, I find
that there was no error in noting that the female applicant testified to having
sought state protection on two occasions, January 2001 and November 2002,
whereas in her amended narrative she referred only to one attempt at seeking
state protection. While her narrative does indicate that she sought protection
on both of those dates, the transcript of the hearing (Tribunal Record, pp.
354-356) reveals that the Board was actually concerned with the female
applicant’s testimony that she complained to the police twice in November 2002,
both before and after the assault. This concern arose because in her amended
narrative she only mentioned approaching the police once on that date.
[19]
With
respect to the male applicant, while the Board’s statement that “the male
claimant failed to seek state protection” may be ambiguous, given that the
Board makes reference to him having approached the local police, I am satisfied
that the Board was aware of this attempt, but was of the view that he had not
done enough to rebut the presumption of state protection.
[20]
Finally,
the applicants submit that the Board erred by not analyzing the claims of the
minor children individually, and imply that they should have been called to
testify at the hearing. This argument is not persuasive as the claims of the
minor children were linked to those of the adults. Further, the transcript of
the hearing reveals that the applicants’ counsel stated that he had no
questions for the children.
[21]
Accordingly,
I find the Board’s decision to reject the applicants’ claims for protection to
be reasonable.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review of the Board’s decision is dismissed.
“Danièle
Tremblay-Lamer”
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