Date: 20081008
Docket: IMM-1310-08
Citation: 2008 FC 1130
Ottawa, Ontario, October 8, 2008
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
YONG DOO KIM, SEAK SOON PARK
JU YOUNG (JULIA) KIM, A YOUNG (IRENE) KIM
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This is an application
for judicial review of a pre-removal risk assessment (PRRA) officer’s refusal
to grant the Applicants’ request to have their applications for permanent
residence processed from within Canada, on humanitarian and compassionate
(H&C) grounds. The decision is dated January 11, 2008. For the reasons
that follow, I am of the view that the decision under review is reasonable.
BACKGROUND
[2]
The
Applicants are a Korean family. Yong Doo Kim is the principal Applicant. He
is the husband of Seak Soon Park. They are the
parents of Ju Young Kim (a.k.a Julia) and A Young Kim (a.k.a. Irene).
[3]
The
Kim family came to Canada in the summer of 2003, allegedly fleeing
criminal loan sharks in Korea, and made a refugee claim a month after
their arrival. In 2004 the claim was refused, as was leave to bring an
application for judicial review in respect of the refusal. The family
submitted an H&C application in 2005, and in 2007 they submitted a PRRA
application.
[4]
Mr.
Kim was an entrepreneur in Korea. Since coming to Canada, the family
has established two restaurants. Mr. Kim has also established a renovation
business. He supplements his business income by working as a cleaner. In his
affidavit filed in support of this proceeding, Mr. Kim goes into some detail as
to his daughters’ establishment in Canada, their success in
Canadian schools, and their plans to attend university. He alleges that
neither would be able to attend university in Korea because they
would not be able to pass the state administered entrance exams. They would be
forced to do menial jobs and be relegated to the “bottom of society”.
[5]
Mr.
Kim also claims that he and his wife would have trouble re-entering the Korean
labour market, as they are in their late 40’s and Korean employers prefer to
hire young graduates. He adds that he still fears being targeted by loan
sharks and that he does not believe that the Korean government’s efforts to
combat loan-sharking have been effective.
[6]
In
her case notes, the officer who analyzed the Kim family’s H&C application sets
out a detailed summary of the family’s submissions as to their establishment in
Canada, their alleged fear of returning to Korea, and the best interests of their
daughters.
[7]
With
respect to the family’s establishment in Canada, the officer
noted among other things their successful businesses, their participation in
the community, their many friendships, and their close relationship with Mr.
Kim’s Canadian sister and her family. Describing this involvement as
“commendable”, the officer nonetheless found that the family’s degree of
establishment was “not exceptional”; the Applicants were provided with student
and work permits in order to facilitate their self-sufficiency, and some
establishment was to be expected. Nor did she accept that a return to Korea
and the attendant difficulties of finding work and a place to live would amount
to excessive hardship for the family, noting among other things that Mr. Kim
and his wife have spent most of their lives in Korea, have family ties there,
and know the culture well.
[8]
With
respect to the Applicants’ fear of return, the officer relied on the IP5
Guidelines in her assessment of their contention that they would face a risk
from corrupt moneylenders amounting to cruel and unusual hardship. These
guidelines provide that positive consideration may be warranted where an
applicant’s removal would expose them to a risk to their life or security. The
officer reviewed their submissions in this regard and consulted documentary
evidence on the Korean police and security apparatus (2006 US Department of
State report; 2007 Amnesty International report), as well as items relating to
a crackdown on money lending at exorbitant rates (included in a 2007
Immigration and Refugee Board report). On this evidence she concluded that
there is no reason to believe the state would be unwilling or unable to provide
protection to the Kim family should they require it.
[9]
Finally,
with respect to the best interests of the Kim children, the officer
acknowledged that they would have to leave friends in Canada and adapt to
a different school system. She did not however accept that any of the
difficulties alleged would amount to unusual, undeserved, or disproportionate
hardship.
ISSUES
[10]
The
Applicants raise three issues:
(a) Whether the
officer improperly assessed the best interests of the children;
(b) Whether the
officer erred in her assessment of their establishment in Canada; and
(c) Whether the
officer erred as to the availability of state protection.
ANALYSIS
Did the officer
improperly assess the best interests of the children?
[11]
The
Applicants submit that the treatment of the children’s best interest was
cursory and speculative. They submit that no consideration was given to the
children’s lack of literacy in Korean, and the difficulties they would face in
gaining admission to university in Korea. They refer to the
decision of Justice O’Keefe in Kim v. Canada (Minister of Citizenship and
Immigration), 2001 FCT 248, where he found that the potential loss
of a year of university which removal to Korea would occasion for the applicant
amounted to an irreparable harm and so stayed her deportation. The Applicants
also rely upon Kim v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1461, a similar case to that at
hand, where it was found that an officer’s failure to address and weigh all of
the consequences of a removal on the children, notably their ability to attend
university, was unreasonable.
[12]
The
Respondent relies on Lee v. Canada, 2008 FC 368, and Vasquez v.
Canada, 2005 FC 91, in submitting that the fact that the Kim children might
be better off in Canada with respect to access to educational opportunities is
hardly conclusive of an H&C application that looks to, and turns on, the
existence of undue hardship. The Respondent suggests that Justice Shore’s
comments in Lee are equally apt here: “[t]he Applicants are would-be
immigrants whose H&C application is primarily based on the existence of
minor children and the fact that they have been in Canada for a few years. If
this were the standard upon which H&C applications had to be approved,
virtually no applications could be refused (…) it would, in effect, create a
whole new immigration system.”
[13]
In
my view, the officer’s discussion and analysis of the children’s best interest,
although brief, considered the essence of the Applicants’ submissions on the
point. There was no “misconstruing of the evidence” as alleged by the
Applicants; the evidence, consisting mostly hyperbolic statements about the
difficulties of adapting to a different educational system, warranted no more
comment than it actually received.
Did the officer err in
her assessment of establishment in Canada?
[14]
The
Applicants claim that the officer erred in her assessment of their
establishment in Canada. Citing Ranji v. Canada (Minister of
Citizenship and Immigration) et al., 2008 FC 521, the
Applicants submit that the officer failed to consider their “positive”
establishment factors within the context of their personal circumstances.
[15]
In
my view, the officer’s consideration of the factors advanced by the Applicants,
and application of the principles relating to H&C assessments, was proper
in her consideration of establishment. The facts in this case are materially
different than those in Ranji. Mr. Ranji had a grade school education
and had been a farmer in India. He had neither a secondary education nor
skills, yet in his time in Canada he had been continuously employed, save for a
two month period, and although he had never earned more than $50,000 annually
in unskilled positions, had accumulated a sizable bank account, purchased an
RRSP, co-purchased a residence with his brother, financially supported family
in India and sent his two children to private schools. His was closer to the
establishment one would have expected of someone with Mr. Kim’s background and
experience. In fact, it is arguable that his establishment, despite his
personal circumstances, was greater than Mr. Kim’s.
Did the officer err as
to the availability of state protection?
[16]
The
Applicants submit that the officer’s conclusions as to the availability of
state protection were made without regard to whether state protection is
actually effective in Korea. They contend that the evidence indicated
that criminal loan-sharking remains a problem, notwithstanding efforts to
combat it, and that moneylenders resort to violence to collect from debtors.
[17]
The
evidence allegedly overlooked by the officer as referenced by the Applicants is
a single sentence from a Korea Times article
reading “members of the government are also stating that it needs to do more to
protect people from loan sharks”. This does not come close to the clear and
convincing evidence that would be needed to rebut the presumption of state
protection; (Carrillo v. Canada, 2008 FCA 94, para. 38). As Justice
Sexton J.A. observed in Hinzman v. Canada, 2007 FCA 171, at para 57, "a claimant coming
from a democratic country will have a heavy burden when attempting to show that
he should not have been required to exhaust all of the recourses available to
him domestically before claiming refugee status." Even accepting that
“hardship” has a broader meaning than risk in the context of an H&C
analysis, in this case the officer’s observation that should the applicants
require assistance, they would have avenues of recourse open to them, in my
view, is equally responsive to the allegation of hardship broadly understood.
[18]
The
Respondent points out that the Applicants have not provided any evidence that
state protection was ever sought and refused. On the authority of the Supreme
Court of Canada’s decision in Canada (A.G) v. Ward, [1993] 2 S.C.R. 689,
the Respondent argues that the Applicants had an obligation to seek state protection
before seeking international surrogate protection. I agree.
[19]
For
all of these reasons the application is dismissed. No question was proposed
for certification.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
This
application for judicial review is denied; and
2.
No
question is certified.
.
“Russel W.
Zinn”
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