Docket: IMM-1365-17
Citation:
2017 FC 913
Ottawa, Ontario, October 13, 2017
PRESENT: The
Honourable Mr. Justice Pentney
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BETWEEN:
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YOUNG-HUI HONG
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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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JUDGMENT AND REASONS
[1]
This is an application for judicial review of a
decision of a Senior Immigration Officer (the Officer) dismissing the
application for a Pre-Removal Risk Assessment (PRRA) by Young-Hui Hong (the
Applicant) on the basis that she would not face personalized risk if she was
removed to South Korea. The case is somewhat unusual, however, in that the
parties do not agree on exactly what was decided by the Officer. It is in some
respects a situation of duelling “clerical errors”.
[2]
The Applicant claims that the Pre-Removal Risk
Assessment (PRRA) decision covers both herself and her daughter, Hyoseon Hong. She
claims that the fact that the PRRA application form she submitted includes
information about the daughter in Box 15, reserved for listing family members,
rather than the Box 14, which asks for details of dependent family members in
Canada who are applying for a PRRA, is simply a “clerical
or human error.” The Applicant points to several documents from the
Officer which refer to both her and her daughter, including the decision letter
and form. The Applicant argues that the PRRA application of her daughter is
entirely derivative of her claim, and that the Officer committed no error in
dealing with them together. She contends, however, that the decision should be
overturned, for reasons which will be explained below.
[3]
The Respondent argues that the PRRA decision was
properly made in regard to the Applicant, but that the Respondent’s officials,
including the Officer who decided the PRRA, committed an innocent and understandable
error when they dealt with the application as though it covered both mother and
daughter. This is the usual approach in these sorts of cases – minor children
do not file separate applications in most cases, and the interests of the
parent and child are often considered in the same decision.
[4]
However, this is not a usual case. In addition
to the question of the form referred to above, the Respondent points to an
exchange of e-mails on this specific point between officials of the Respondent’s
Vancouver Backlog Reduction Office and the counsel who represented the
Applicant at that time. Unlike a previous PRRA application filed in 2012, which
indicated, in the appropriate box, that it was an application for both mother
and daughter, this form indicated only that it was filed for the Applicant. As
noted above, the daughter is referred to in a separate section of the form
which asks for information on other family members. In addition, upon receipt
of the PRRA application, an official wrote to counsel for the Applicant asking
for clarification whether the Applicant “would like to
include her daughter (HONG, Hyoseon) on her subsequent PRRA application.”
In reply, the Applicant’s counsel stated that the daughter had not initially
been included due to some legal complications (which are described more fully
below), and said that further information on this would follow. No such
information was provided, and the eventual submissions filed by counsel for the
Applicant focused virtually entirely upon her claim. There was only the
briefest reference to her concerns for her daughter.
[5]
The Respondent’s position is that the PRRA
intentionally excluded the daughter and was filed only on behalf of the
Applicant. As became clear during the course of the hearing, this may be
explained by the fact that when the PRRA was filed, there were criminal and
family law proceedings underway and the daughter was in the temporary custody
of the Children’s Aid Society.
[6]
However, somewhere along the way the Officer
appears to have treated the application as covering both the Applicant and her
daughter, and the decision refers to both in several places. It also includes
the following: “Accordingly, I find that the minor
applicant is not at risk pursuant to sections 96 and 97 of the Immigration
and Refugee Protection Act.”
[7]
The Respondent points to this as an error, and
states that the Minister should not be bound by this mistake, because doing so
would prejudice the interests of the child, who is still entitled to a separate
PRRA process and decision. The Respondent further submits that the decision in
regard to the Applicant is otherwise valid and the application for judicial
review should be dismissed.
I.
BACKGROUND
[8]
The Applicant, a citizen of both the Democratic
People’s Republic of Korea (North Korea) and the Republic of Korea (South
Korea), entered Canada in 2009 with her daughter. She made a claim for refugee
protection using a different name and date of birth, and claiming to be a
citizen only of North Korea. This claim was denied, on the basis of credibility
concerns regarding the Applicant’s evidence. She then filed her first
application for a PRRA, on behalf of herself and her daughter. The Applicant
continued to claim that she and her daughter were citizens only of North Korea,
and that they would be at risk of mistreatment and persecution if returned to
that country. This PRRA was granted in 2013.
[9]
In 2015, when it was learned that the Applicant
and her daughter were actually also citizens of South Korea, the original PRRA
decision was vacated. The Applicant then became subject to removal, which
triggered the subsequent PRRA application, filed in 2016. This PRRA focused on
several claims: that the Applicant would face discrimination based on her North
Korean background, that she would suffer because mental health supports in South
Korea are inadequate and she would face a risk of involuntary hospitalization,
and finally that she would be at risk from North Korean agents who seek out
defectors in South Korea.
[10]
The Officer reviewed the Applicant’s immigration
history, and then examined the evidence regarding each of the claims. The
Officer essentially dismissed the latter two claims based on the evidence
presented. In relation to the claim about her mental health condition, the
Officer found that the evidence of a psychiatrist about the Applicant’s mental
health was largely based on her fear of being sent back to North Korea, and
that there was no more recent evidence provided to support the claim that the
Applicant was at risk of being hospitalized if returned to South Korea. The
Officer went on to find that the evidence did not support a risk to the
Applicant from North Korean agents, given that there are an estimated 25,000
defectors in South Korea, and the evidence showed that only two high profile
defectors had been targeted for assassination by North Korean agents. The
Officer found that the Applicant did not have a high profile and would not be
at risk.
[11]
On the question of discrimination and state
protection, the Officer first set out the applicable legal tests, noting that
South Korea is a democracy in full control of its territory and thus there is a
presumption that the state will be capable of protecting its citizens, which can
be rebutted by clear and convincing evidence of the state’s inability to
protect. The Officer also noted that “(t)he burden of
proof that lies on the applicant is directly proportional to the level of
democracy in the state in question: the more democratic the state’s
institutions, the more the applicant must have done to exhaust all the courses
of action open to him or her.”
[12]
The Officer examined the issue of discrimination
against North Koreans, and found that there is evidence of some discrimination,
but also clear evidence that South Korea has taken steps to assist North
Koreans to make a successful transition to life in the South, including by
creating a resettlement and training facility and by providing financial
assistance. The Officer found that the law forbids discrimination based on
race, gender, disability, sexual orientation and social status, and while there
is evidence that there could be better enforcement of the law, it was noted
that one of the criticisms that had been levelled against the National Human
Rights Commission is that it “was overly focused on
North Korean problems.”
[13]
The Officer found that the evidence was
insufficient to rebut the presumption of state protection, and further that the
examples of mistreatment experienced by the Applicant in the South did not rise
to the level of persecution. This evidence included occasions when her accent
or lack of language abilities gave rise to negative comments, and that she was
isolated by South Korean members of the church she attended. The Officer found
that this did not correspond to the type of discrimination that amounts to
persecution, as described in the United Nations High Commissioner for Refugee’s
Handbook.
[14]
The Officer rejected the PRRA application under
both ss. 96 and 97 of IRPA. This is the decision which is challenged
here.
II.
ISSUES
[15]
Three issues arise in this proceeding:
- Was it an error
for the Officer to treat the PRRA application as covering both the
Applicant and her daughter? If so, what is the legal effect of this error?
- Should the
decision be set aside because the Officer denied procedural fairness to
the minor applicant, Hyoseon Hong, by failing to obtain submissions from
someone legally authorized to represent her, given that she was then in
the temporary custody of the Children’s Aid authorities in Ontario?
- Should the
decision be set aside because the Officer erred in interpreting the
country documentation?
III.
ANALYSIS
A.
Was it an error for the PRRA decision to include
the daughter?
[16]
The first question before me is: what is the
actual decision under review? Was it a decision in respect of both the
Applicant and her daughter? Or was it a decision in respect of an application
on behalf of the Applicant only, in which the Officer mistakenly also included
the daughter? If it is the latter, what is the legal effect of the mistake?
[17]
As outlined above, the parties have completely
different interpretations of what happened here; both claim “clerical errors” were made, but to opposite effect. The
Applicant claims that the failure to include her daughter in the proper box of
the PRRA application was an innocent human or clerical error, and that the Respondent’s
officials properly considered the two cases together since they are so
inter-connected.
[18]
The Applicant goes on to argue, however, that
the Officer denied procedural fairness to the child, by relying on
representations from counsel for the Applicant, rather than seeking out submissions
from someone legally authorized to represent the daughter, who was then in the
temporary custody of the Children’s Aid Society. This error should render the
entire decision invalid, since under s. 18.1(3)(b) of the Federal Courts Act,
RSC 1985, c F-7, the Court only has jurisdiction in relation to “a decision” in an application for judicial review.
Thus I have no jurisdiction to set aside only one part of the decision.
[19]
The Respondent argues that the Officer made an
innocent mistake in treating this as an application for a PRRA on behalf of
both the Applicant and her daughter. It was perfectly clear from the e-mail
exchange mentioned above that the Applicant intentionally did not include the
daughter in the PRRA application. The Respondent also seeks to ensure that
whatever the outcome of this proceeding, the rights of the daughter are
preserved and protected, since their position is that she is still entitled to
a separate PRRA process and decision.
[20]
I should underline here that all parties agree
that the officials should not be blamed for having made such a mistake, given
the volume of cases, the unusual factual situation, and the somewhat
complicated history of the Applicant’s case. They agree that the situation of a
non-Canadian child in the custody of provincial child welfare authorities at
the time of a PRRA application falls into a “grey area”.
It is not clear whether a parent is legally authorized to file a PRRA application
on behalf of a child for whom they do not have legal custody. For the reasons
that follow, I do not need to resolve this question here.
[21]
I find that the Officer erred in treating this
as a PRRA application on behalf of both the Applicant and the daughter. The
Applicant’s argument rests on the various references to the daughter in the
documentation. They point to a letter dated January 23, 2017, from the Officer
to counsel for the Applicant, which includes the following subject line: “Re: Hong, Younghui aka HONG, Jin Kyung and HONG, Hyoseon
aka Kim, Seo Yun” (emphasis added). The first sentence of this
letter states: “This refers to the application for a
pre-removal risk assessment by the above-noted clients” (emphasis
added). They also point to the decision letter and PRRA decision form completed
by the Officer, both of which refer to the daughter.
[22]
While it is true that there are several
references to the daughter in the documentation, it is also true that the legal
counsel who represented the Applicant at that time had expressly stated that
the daughter was not included in the PRRA application. Counsel submitted the
PRRA application on behalf of the Applicant on November 18, 2016. It should be
noted that this form did not include the daughter in the appropriate box – and
this stands in contrast to the previous PRRA application filed by the Applicant
in 2012, which was expressly filed on behalf of both mother and daughter. On
November 28, 2016, an official from the Respondent’s Vancouver Backlog
Reduction Office sent an e-mail to counsel for the Applicant, asking for
clarification whether she “would like to include her
daughter (HONG, Hyoseon) on her subsequent PRRA application.” On
November 30, 2016, counsel replied in the following way:
We initially did not include Ms. Hong’s
daughter in the subsequent PRRA application as her daughter was not named or
served with a PRRA. We have recently been retained and are currently in the
process of obtaining the full file. This matter is complicated by ongoing
criminal court and family court proceedings, and Ms. Hong’s detention.
As such we are not in a position to
determine whether Ms. Hong’s daughter will be included on her PRRA application
at this time. We are endeavouring to obtain all the necessary and relevant
information and will advise as soon as practicable.
[23]
As noted above, in subsequent correspondence the
Officer indicates that this is a joint PRRA application on behalf of both the
Applicant and the daughter, and no one corrected this mistake. The question
before me is whether this constitutes an error, and if so, what is the legal
effect of the mistake?
[24]
The PRRA process is set out in Division 3 of the
Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] as
well as the Immigration and Refugee Protection Regulations, SOR/2002-227
[IRPR]. This process is designed to safeguard an integral component of
refugee protection – the principle of non-refoulement, enshrined in s. 115 of IRPA.
This is a core concept that underlies refugee protection. The purpose of the PRRA
is not disputed. It is explained as follows in the Regulatory Impact Analysis
Statement, Canada Gazette, Part II, Vol. 136, Extra (June 14, 2002), at page
274:
The policy basis for assessing risk prior to
removal is found in Canada’s domestic and international commitments to the
principle of non-refoulement. This principle holds that persons should not be
removed from Canada to a country where they would be at risk of persecution,
torture, risk to life or risk of cruel and unusual treatment or punishment.
Such commitments require that risk be reviewed prior to removal.
See: Raza v Canada (Citizenship and
Immigration), 2007 FCA 385, para 10.
[25]
The PRRA is a significant procedural protection
for claimants, and a means for Canada to live up to its international
obligations.
[26]
In practice, notices of entitlement to submit a
PRRA are sent by the Canada Border Services Agency (s. 160, IRPR). As
noted earlier, in the usual case where there are adults and dependent children,
the parents file on behalf of themselves and their children. Where the claimant
is an unaccompanied minor, separate legal representation is usually provided
and the claim is filed directly on behalf of the child. Nowhere, however, does IRPA
or IRPR permit an officer unilaterally to add or subtract individuals
from the application, and no authority was cited for that proposition. Indeed,
given the nature of the interests of the individuals involved in this process,
it would be surprising that Parliament would have granted officers such powers.
[27]
In this case, the Applicant essentially urges
that I disregard the actual form she filed, as well as the statement of her
legal counsel to the effect that the PRRA did not include the child. Instead, I
am urged to look at the correspondence and decision document to find that the
application was somehow transformed by the Officer into a joint one on behalf
of both the Applicant and her daughter. Since there is nothing in the record to
indicate that the Applicant or her counsel ever took such a step, I am asked to
infer it from the correspondence and indications in the form, all of which were
completed by the Respondent’s officials, and in particular the Officer who
decided the PRRA.
[28]
To do so would be to recognize an extraordinary
power or jurisdiction on the part of an Immigration Officer. This heretofore
unknown power would have the effect of significantly affecting the rights of an
applicant, here a minor child who was not then in the custody of the mother,
and as such was entitled to separate legal representation to ensure her
distinct and unique rights and interests were protected. I am not prepared to
accede to such an extraordinary result.
[29]
This is entirely different from the practice of
treating similar applications from several family members together, or treating
the joint application filed on behalf of parents and children together. The
reference to decisions involving separate applications from family members
which were treated together has no application to the facts before me; see for
example Mofrad v Minister of Citizenship and Immigration, 2012 FC 901.
[30]
Furthermore, if an administrative power to “correct” or alter the PRRA application to add or
subtract individuals from the application exists, fairness would demand that it
only be done with consent of the individual affected. In this case, the email
sent to counsel by the Respondent’s official was seeking to clarify the
Applicant’s intention, and presumably had a positive response been provided the
Respondent would then have treated the application as a joint one on behalf of
both mother and daughter, as a matter of administrative practice.
[31]
On the record before me, however, I find that
the Applicant did not intend to file, and did not actually file, a PRRA
application on behalf of her daughter in 2016. I observe that the vast bulk of
the submissions filed in support of the PRRA relate only to the situation of
the mother; there is but a passing reference to the mother’s concerns for her
daughter. I also observe that the decision of the Officer is also almost
entirely focused on the claims of the mother. Only the final few paragraphs of
a lengthy and detailed decision relate to the concerns expressed about the
daughter.
[32]
I find that the Officer’s error was just that –
an innocent mistake, lumping this case in with the many others they were no
doubt dealing with at the time, and treating it as a joint application. I find
that this is a legal nullity. It cannot bind the daughter, who is entitled to a
separate PRRA process and decision if she wishes to pursue it, if at some point
she becomes subject to removal.
[33]
I also find that this error had no material
impact on the rights of the Applicant in the context of her PRRA application
and this application for judicial review. An error in regard to the daughter
does not in itself constitute a reason to set aside the PRRA decision in
respect of the Applicant. I have been unable to locate any decision directly on
point, but there are several decisions where a clerical or factual mistake has
been discovered, and the test which has been applied is whether the error was
material to the outcome; or, put another way, whether the outcome would have
been different if the error had not been made. See: Canada (CIC) v Rahman,
2013 FC 1274, at para 55; Hussain v Canada (CIC), 2012 FC 1298, at para
53; Romero v Canada (Citizenship and Immigration), 2012 FC 265,
at para 28; Sakibayeva v Canada (Citizenship and Immigration), 2007 FC
1045, at paras 13-14.
[34]
Both parties acknowledge that this situation
falls into a “grey area” which may have contributed
to the mistake which occurred here. On the record before me, there remain many
unanswered questions about how the PRRA application was transformed into a
joint one, and why the mistake was not caught or corrected. What is clear to me
is that no application was filed on behalf of the daughter, no submissions were
made on her behalf by anyone legally authorized to make such submissions, and
the mistaken references to her situation can have no legal effect. The
Respondent has taken the position that the daughter is still entitled to a
separate PRRA process, and nothing done by the Officer here has any impact on
that. The findings of the Officer in regard to the daughter’s case were made in
error, without an application or submissions on her behalf. These findings
should be treated as what they are – the product of an innocent mistake – which
have no effect or impact.
[35]
The Respondent indicates that the appropriate
authorities have been advised of the daughter’s immigration status and of the
need to take steps to consider her interests not just in relation to child
protection or custody matters, but also in regard to her immigration status.
They have further undertaken to ensure that my decision in this matter is
communicated to the appropriate provincial authorities. It is clear that the
daughter is entitled to a PRRA prior to any removal from Canada, and that she
should be given notice of this right and an opportunity to make submissions if
she becomes subject to removal, as required by s. 112 of IRPA, and in
accordance with s. 160, IRPR. The Respondent has acknowledged this and
has undertaken to act accordingly. Nothing further is required to protect the
daughter’s interests at this stage.
B.
Was the daughter denied procedural fairness?
[36]
In light of my findings on the first issue, it
is not necessary for me to deal with this issue. Both parties acknowledged that
this case falls into a legal “grey area”, and
given that no application was filed on behalf of the daughter here, it is not
appropriate that I deal further with any of the issues or arguments relating to
this question. I will leave it to a case where the matter properly arises on
the facts before the Court.
C.
Did the Officer misapprehend the evidence?
[37]
As the Supreme Court of Canada stated in Dunsmuir
v New Brunswick, 2008 SCC 9, at para 57, it is not necessary to conduct a
standard of review analysis where the matter is settled by case-law, and that
is the situation here (see Haq v Canada (Minister of Citizenship and
Immigration), 2016 FC 370, at para 15; Nguyen v Canada (Minister of Citizenship
and Immigration), 2015 FC 59, at para 4). The decisions of this Court make
clear that the standard of review that applies to the decisions of PRRA
officers as a whole is reasonableness (Wang v Canada (Citizenship and
Immigration), 2010 FC 799 at para 11; Chen v Canada (Citizenship and
Immigration), 2016 FC 702 at para 13) and deference is owed to a PRRA
officer’s assessment of the evidence (Belaroui v Canada (Citizenship and
Immigration), 2015 FC 863 at paras 9-10).
[38]
The crux of the Applicant’s argument is that the
decision is unreasonable because it fundamentally mis-characterized her claim
regarding discrimination against North Koreans in the South, and the inadequacy
of state protection. The Applicant argues that the Officer committed a crucial
error in reaching the negative decision regarding the risks to the Applicant,
by mis-apprehending the basis of her claim as founded on a fear of
discrimination based on “race” rather than “ethnicity”, and failing to properly interpret the
evidence of whether adequate state protection against such discrimination is
available in South Korea.
[39]
In her submissions on the PRRA application, the
Applicant provided extensive evidence of discrimination against North Koreans
when they moved to the South. This, it is claimed, is an issue of
discrimination based on the ground of “ethnic origin”.
The Applicant argues that after the division of the country, the differences in
culture, language, and lifestyle which have developed between people who live
in the North and those who live in the South amount to the creation of
different “ethnicities”. And this is the basis
of the mistreatment of people who have migrated from the North to the South.
[40]
The Applicant’s position hinges on an argument
that the Officer erred in finding that the South Korean anti-discrimination
laws were adequate, in light of the fact that there is no protection against
discrimination based on “ethnic origin”. In her
PRRA submissions, the Applicant referred to an on-line article which states: “There is no anti-discrimination law in Korea and this
discrimination is practically legal.” The Officer finds that this is
simply not true, citing a United States Department of State Report that
indicates that “the law forbids discrimination based on
race, gender, disability, sexual orientation and social status.”
[41]
The Officer then refers to evidence that the
government of South Korea has taken many steps to support the transition of
migrants from the North, including government programs and financial support.
The Applicant’s evidence was that she had benefitted from this transition
support, including receiving education on how to adapt to life in South Korea,
as well as money to assist her in settlement as well as housing. She used this
money to travel to Canada.
[42]
The Officer finds that North Koreans face some
degree of discrimination in the South, but also notes that the difficulties
they encounter are not solely attributable to discrimination. The evidence
indicates there are a range of factors that contribute to this, including
deficiencies in education, different work histories, and the overall challenge
of adjustment. The Officer also finds that the government of South Korea has
taken steps to support North Koreans in making this transition.
[43]
In addition, the Officer refers to the evidence
of the Applicant as to the types of mistreatment she experienced when she lived
in South Korea, finding that none of these instances were sufficient to rise to
the level of persecution. After a review of the evidence, the Officer
concludes: “…I find on a balance of probabilities that
the applicant’s evidence is insufficient to rebut the presumption of state
protection.”
[44]
I find no error in the Officer’s decision on
this point. The Officer applied the appropriate legal tests regarding state
protection and engaged with all of the evidence and arguments submitted by the
Applicant. The decision of PRRA officers deserves deference as falling within their
particular expertise regarding country conditions. I find that the decision of
the Officer is reasonable, and falls within the range of “possible, acceptable outcomes which are defensible in
respect of the facts and law”.
IV.
CONCLUSION
[45]
I therefore dismiss the application for judicial
review. No certified question was submitted by the parties.
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