Kim v. Canada (Minister of Citizenship and Immigration), 2006 FC 629

Date: 20060523

Docket: IMM-2341-06

Citation: 2006 FC 629

Ottawa, Ontario, May 23, 2006

PRESENT:      The Honourable Madam Justice Layden-Stevenson

BETWEEN:

HAN SUNG KIM

Applicant

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

Let the attached edited version of the transcript of my Reasons for Order delivered orally from the bench at Toronto, Ontario, on May 15, 2006, be filed to comply with section 51 of the Federal Court Act.

                                                                                                   "Carolyn Layden-Stevenson"

Toronto, Ontario

--- Upon commencing on Monday, May 15, 2006

    at 9:37 a.m.

DECISION FROM THE BENCH:

THE COURT: The applicant, Han Sung Kim, is a citizen of South Korea scheduled to be removed from Canada on May 18th. He requests a stay of his deportation pending determination of a Humanitarian and Compassionate (H. & C.) application which he, this morning, advises the Court that he filed in February of 2006. The underlying application upon which the motion for a stay is based is a negative pre-removal risk assessment or a PRRA.

Mr. Kim came to Canada in February of 1992 on a student visa and he remained here until July of 1999, at which time he returned to South Korea. He stayed in South Korea until January 2000, and then returned again to Canada. In May of 2001, he made a refugee claim. The Refugee Protection Division of the Immigration and Refugee Board rejected his claim and found him to be neither a Convention refugee nor a person in need of protection. That decision was rendered on June 19, 2003. There is no indication that any leave to apply for a judicial review of that decision was filed.

On December 5th, 2005, Mr. Kim applied for a PRRA, and on February 18, 2006 the PRRA officer rendered a negative determination.

I wish to address first the request that the stay of removal be granted until such time as a decision is made on the H. & C. application. The Court lacks jurisdiction to make any such order, because it would not be an order that was pending the underlying application for judicial review.

As I have previously stated, the underlying application in regard to this motion is the PRRA decision, which is in no way connected to the H. & C. application. I cannot grant a stay with respect to an application that has no connection to the decision being challenged.

To obtain a stay of removal, it is incumbent upon Mr. Kim to satisfy the tripartite conjunctive test that is articulated in Toth and Canada (Minister of Employment and Immigration), reported at (1988), 95 N.R. 6 (F.C.A.).

With respect to the serious issues alleged by Mr. Kim, in his written materials, he alleges breach of natural justice, failure to consider the evidence in its totality, making an unreasonable assessment of the evidence and drawing improper credibility findings. There is no evidence or explanation as to how these alleged errors were committed. It is not demonstrated that they were committed. There is no attempt to show what effect, if any, they had on the assessment of risk so as to qualify as a reviewable error.

In short, Mr. Kim has made sweeping allegations without specificity as to error on the part of the PRRA officer. Orally, he claims that the PRRA officer failed to have regard to the length of time that he has been in Canadaand his level of establishment here. It is not the function of a PRRA officer to have regard to humanitarian and compassionate considerations. The function of a PRRA officer is to assess risk in the country of origin.

The applicant, Mr. Kim, has had two risk assessments now, one by the Refugee Protection Division and one by the PRRA officer. He has had negative determinations on both and he has not established the existence of a serious issue with respect to the PRRA assessment, because he has not pointed to any error in that assessment.

In any event, I am not satisfied that he has demonstrated irreparable harm. In his written submissions, he states that he will incur disruption if he is removed. He also states that he will lose his job and that he would have to re-establish himself in South Korea. All of these factors are inherent in the notion of removal and do not constitute irreparable harm.

At the hearing, Mr. Kim provided the Court and counsel for the respondent with a translated copy of a website news release from South Korea which says that those who have engaged in criminal or illegal behaviour in foreign countries, upon return to Korea, may be subject to a passport law which will prohibit departure from Korea for a period of one to three years.

There is nothing to link Mr. Kim to that law, since he has not established that he has committed any criminal offence, nor has he established that he has been accused of any criminal offence. In any event, it does not appear to me that the punishment of prohibition from departing from Korea, even if he were subjected to it, would amount to a risk to life as he alleges.

In the circumstances, in view of the statutory obligations of the Minister to effect removal as soon as practicable, I am of the opinion that the balance of convenience favours the Minister and the motion for a stay is refused.

Thank you, Mr. Kim, and thank you, Mr. Anderson.

--- Whereupon the proceedings concluded

    at 10:02 a.m.

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           IMM-2341-06

STYLE OF CAUSE:                           HAN SUNG KIM

                                                            v.

                                                            MCI

PLACE OF HEARING:                     Toronto, Ontario

DATE OF HEARING:                       May 15, 2006

REASONS FOR ORDER                  Layden-Stevenson J.

DATED:                                              May 23, 2006

APPEARANCES:

SOLICITORS OF RECORD: