Date: 20101217
Docket: IMM-2831-10
Citation: 2010 FC 1299
Ottawa, Ontario, December 17,
2010
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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DURI CHO
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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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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review, pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a decision
of a Pre-Removal Risk Assessment (PRRA) officer rejecting the applicant’s PRRA
application after finding that the applicant would not be subject to a risk of
persecution, torture, a risk to his life or a risk of cruel and unusual
treatment or punishment if returned to South Korea.
BACKGROUND
[2]
The applicant, Mr.
Duri Cho, was born in Bangladesh. He moved to South Korea in 1991 and married
a South Korean citizen in 2002. He became a citizen of South Korea himself in
May of 2005.
[3]
The
applicant first came to Canada in December of 2006 with his wife. The two were
separately interviewed by Canada Border Services Agency officers. The applicant
claimed refugee protection. His wife did not. After being detained overnight,
the applicant withdrew his claim for refugee protection. The applicant and his
wife left Canada shortly thereafter.
[4]
The
applicant returned to Canada on March 31, 2009 and was admitted as a temporary
resident. In April of 2009, he claimed refugee status. Since he had
previously withdrawn a claim for refugee protection, his new claim was deemed
ineligible to be referred to the Refugee Protection Division of the Immigration
and Refugee Board (the Board) due to paragraph 101(1)(c) of the IRPA.
The applicant applied to have his 2006 claim reinstated. That application was
refused by the Board.
[5]
The
applicant filed a PRRA application on June 8, 2009. He requested an oral
hearing under paragraph 113(b) of the IRPA. No oral
hearing was provided. The applicant alleged that he faced serious
discrimination and persecution in South Korea based on his race, nationality
and based on the fact that he was a human rights activist. Specifically, he
alleged the following facts in support of his claim:
- On October 15, 2005, the applicant
was beaten by a manager at his place of work, a plastic factory in South
Korea. He sustained injuries to his chest and head and went to the
hospital for treatment. He filed a complaint with the police who came to
the factory and told him that if he wanted to keep working, he should drop
his claim.
- On May 27, 2007, a foreman at a
candle factory threw hot candle wax at the applicant. The applicant called
the police. The police came to the factory and the foreman apologized. The
applicant was fired the next day.
- The applicant was a vocal advocate
for migrant workers’ rights. Between 2002 and 2006, the applicant
volunteered with the Migrant Workers House. From 2007 to 2009, he
volunteered with the Migrant Workers Welfare Society of Korea. He took
part in numerous protests and demonstrations and was identified in
multiple news articles as an advocate for migrant workers’ rights. The
applicant believed that this lead to increased hostility against him by
employers.
- In December of 2008, the applicant
brought a complaint against an ex-employer, Mr. Kim Chang Hwan, in
relation to unpaid salary. Mr. Hwan threatened to kill the applicant if he
did not withdraw his complaint. The applicant received many death threats
by telephone in connection with this complaint; some from Mr. Hwan, some
from Mr. Hwan’s employees. The callers indicated that they would “get”
the applicant wherever he went in Korea.
- On March 12, 2009, Mr. Hwan’s
vehicle (driven by his chauffeur) swerved to hit the applicant. The
applicant was injured in the chest, head and knee. The driver indicated,
“If you don’t drop the case, you’re dead.” The applicant reported the
incident to the police, who laughed and wrote in their report that it was
an accident. The applicant continued to receive threatening calls while in
hospital and after he got home. The applicant discussed the situation with
his wife and they decided that he should flee to Canada.
[6]
In a
decision dated April 16, 2010, the applicant’s PRRA application was refused.
On May 20, 2010, the applicant filed an application for Leave and for Judicial
Review, contesting the PRRA decision. On May 31, 2010, this Court stayed the
applicant’s removal until disposition of the leave application.
THE DECISION UNDER REVIEW
[7]
The PRRA
officer began his assessment by considering the nature of the risk faced by the
applicant in South Korea. He pointed out that the documentary evidence
submitted by the applicant overwhelmingly pertained to problems faced by
migrant and irregular workers and that the applicant was no longer a migrant or
an irregular worker; he was a South Korean citizen.
[8]
In any
event, the officer found that state protection did exist in South Korea for
migrant workers. Although they remained a vulnerable group, and although state
protection was not perfect, the officer pointed to evidence which indicated
that the government of South Korea had recognized their vulnerability and was
taking measures to address it. For instance, there was documentary evidence
indicating that the South Korean government supported the mission of
organizations such as the Migrant Workers Center. Thus it would be reasonable
to assume that the applicant would be supported by the government in his
volunteer work, not persecuted because of it. He further indicated that there
was no evidence establishing that government officials were persecuting the
staff or volunteers at migrant worker shelters based on Convention grounds.
[9]
The
officer referred to the summonses (from 2005, 2007, and 2009) sent by the Seoul
Regional Ministry of Labour that were submitted by the applicant. He indicated
that no results were provided with respect to the outcome of the applicant’s
complaints in these matters. In fact, the officer determined that the
summonses actually supported the notion that legal recourse did exist in South
Korea and was available to the applicant, “corroborating de facto the
availability of state protection for the applicant.”
[10]
The
officer further indicated that the applicant had not submitted documentary
evidence demonstrating that he had made attempts to file complaints with Korean
authorities regarding the alleged discrimination and harassment, and
demonstrating that Korean authorities denied him protection.
[11]
The
officer discussed the applicant’s allegations regarding the assault that had
supposedly taken place in October of 2005. He considered the “Medical
Certificate of Injury” submitted by the applicant and found that it was of low
probative value because its origin was not established, the doctor who wrote it
was not formally identified, and because the author of the document did not
indicate that he had any personal knowledge regarding the assault. The officer
concluded that there was no credible evidence to corroborate the applicant’s
story regarding the 2005 assault. Further, the officer drew a “negative
inference” from the fact that the applicant did not appear to have raised the
assault when he withdrew his initial claim for refugee status in 2006.
[12]
Ultimately,
the officer concluded: a) there was insufficient evidence to corroborate the
applicant’s allegations of persecution or bad treatment, b) the applicant had
not discharged himself of the onus of demonstrating an objective and
identifiable risk upon his return to South Korea, and c) the applicant had not
rebutted the presumption that state protection was available to him in South
Korea.
ISSUES
[13]
This
application raises the following issues:
a) What is the applicable
standard of review?
b) Did the PRRA officer err in
his treatment of the evidence regarding personalized risk?
c) Did the PRRA officer breach
the duty of procedural fairness owed to the applicant by not providing the
applicant with an oral hearing?
d) Was the PRRA officer’s finding
as to state protection unreasonable?
ANALYSIS
a) What is the applicable
standard of review?
[14]
The standard
of review applicable to questions of procedural fairness is correctness (Canada
(Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at
para. 43; Sketchley v. Canada (Attorney General), 2005 FCA 404, [2006] 3
F.C.R. 392 at para. 53). When applying the standard of correctness, the
reviewing court will “decide whether it agrees with the determination of the
decision maker; if not, the court will substitute its own view and provide the
correct answer” (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190 at para. 50 [Dunsmuir]).
[15]
The
appropriate standard for reviewing whether the officer erred in his treatment
of evidence is the reasonableness standard (Guan v. Canada (Minister of
Public Safety and Emergency Preparedness), 2010 FC 992 at para. 15).
Reasonableness is also the appropriate standard to apply in reviewing the
officer’s state protection analysis (Persaud v. Canada (Minister of
Citizenship and Immigration), 2010 FC 850 at para. 14). In Dunsmuir,
above at para. 47, the Supreme Court of Canada held that "reasonableness
is concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law.”
b) Did the PRRA officer err in
his treatment of the evidence regarding personalized risk?
[16]
The
applicant argues that the PRRA officer erred in his assessment of personalized
risk because he failed to consider the key incidents of March 2009 – the attack
and the death threats – that ultimately led to the applicant’s departure from
South Korea and his claim for protection in Canada.
[17]
The
respondent, however, argues that the officer acknowledged these alleged
incidents at the beginning of his reasons, under the heading, “Risks identified
by the applicant” but concluded there was insufficient evidence to corroborate
the applicant’s allegations of persecution and bad treatment, and that, as
such, the applicant had not met the burden of establishing a personalized risk
in South Korea. In this regard, the respondent notes that the applicant did
not submit any evidence to corroborate that the 2009 events had taken place,
other than an un-translated medical certificate. Given this, the respondent
contends, the officer’s single reference to the events of 2009 was entirely
sufficient. I disagree.
[18]
The
officer’s brief mention of the events of 2009 comes in stark contrast to the
applicant’s lengthy discussion in his written PRRA submissions. In his
submissions, the applicant set out the context in which his initial complaints
against Mr. Kim Chang Hwan arose, he discussed the death threats he began
receiving shortly after lodging those complaints, he discussed his encounter
with Mr. Hwan’s driver on March 12, 2009, he discussed his interactions with
the police shortly thereafter, and he discussed the continued death threats
which culminated, ultimately, in his decision to leave South Korea. Beyond
acknowledging at the beginning of his reasons that the applicant had alleged
“that he was attacked, his life was threatened and his request for protection
ignored,” none of the applicant’s allegations regarding the events of 2009 were
discussed by the officer.
[19]
In my
opinion, the officer’s failure to engage with the applicant’s submissions
regarding the events of 2009 is of significant concern because these
submissions were central to the applicant’s alleged personalized risk. As
indicated by Justice John Maxwell Evans in the often-cited Cepeda-Gutierrez
v. Canada (Minister of Citizenship and Immigration), 157 F.T.R. 35, 83
A.C.W.S. (3d) 264, a decision-maker’s obligation to mention, analyze and
consider evidence increases with the relevance of the evidence in question to
the disputed facts. Instead of discussing the applicant’s submissions
regarding the events of 2009, the officer opted to discuss the alleged events
of 2005 and then proceeded to conclude that there was “insufficient evidence to
corroborate the applicant’s allegations of persecution or bad treatment.” It
is not clear from the officer’s reasons that he ever did, in fact, consider the
allegations surrounding March 2009. The fact that the officer failed to engage
with the applicant’s central allegations points to a lack of justification,
transparency and intelligibility in the officer’s decision-making process (Dunsmuir,
above, at para. 47).
c) Did the PRRA officer breach
the duty of procedural fairness owed to the applicant by not providing the
applicant with an oral hearing?
[20]
The
applicant further argues that the PRRA officer made a veiled credibility
finding. The officer rejected the applicant’s allegations regarding the 2005
assault because they were “not corroborated by other credible or trustworthy
evidence.” More generally, in his conclusion, the officer stated that “there
[was] insufficient evidence to corroborate the applicant’s allegations of persecution
or bad treatment.” This, the applicant argues, suggests that the officer
questioned his credibility. He relies on Singh v. Canada (Minister of
Employment and Immigration), [1985] 1 S.C.R. 177, 17 D.L.R. (4th) 422 [Singh]
for the proposition that when the credibility of a refugee claimant is at
issue, the claimant is entitled to an oral hearing. Since credibility was at
issue in this case, and since the PRRA officer did not provide the applicant
with an oral hearing, the applicant claims there was a breach of the duty of
procedural fairness.
[21]
The
respondent submits that no credibility determination was made. The respondent
points to Ferguson v. Canada (Minister of Citizenship and Immigration), 2008
FC 1067, 170 A.C.W.S. (3d) 397 [Ferguson] in support of the proposition
that a trier of fact may consider the probative value of evidence without
necessarily considering the credibility of that evidence or the credibility of
its source. The respondent claims that the officer, in this case, merely
determined that the applicant had not met the burden of proving a personalized
risk, and that this is very different from making a determination as to the
applicant’s credibility. As such, the respondent submits, the officer was not
required to provide the applicant with an oral hearing. I disagree.
[22]
Although,
generally speaking, a PRRA applicant is not entitled to an oral hearing,
paragraph 113(b) of the IRPA indicates that “a hearing may be
held if the Minister, on the basis of prescribed factors, is of the opinion
that a hearing is required.” The prescribed factors are set out in section 167
of the Immigration and Refugee Protection Regulations, SOR/2002-227 (IRPR).
Section 167 reads:
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Hearing —
prescribed factors
167. For the
purpose of determining whether a hearing is required under paragraph 113(b)
of the Act, the factors are the following:
(a)
whether there is evidence that raises a serious issue of the applicant's
credibility and is related to the factors set out in sections 96 and 97 of
the Act;
(b)
whether the evidence is central to the decision with respect to the
application for protection; and
(c)
whether the evidence, if accepted, would justify allowing the application for
protection.
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Facteurs
pour la tenue d’une audience
167.
Pour l’application de l’alinéa 113b) de la Loi, les facteurs ci-après
servent à décider si la tenue d’une audience est requise :
a) l’existence d’éléments de
preuve relatifs aux éléments mentionnés aux articles 96 et 97 de la Loi qui
soulèvent une question importante en ce qui concerne la crédibilité du
demandeur;
b) l’importance de ces éléments
de preuve pour la prise de la décision relative à la demande de protection;
c) la question de savoir si ces
éléments de preuve, à supposer qu’ils soient admis, justifieraient que soit
accordée la protection.
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The factors are conjunctive. I will consider each in turn.
[23]
The PRRA
officer found that the applicant’s allegations regarding the incidents of 2005,
2007 and 2009 had not been sufficiently proven. In determining whether
paragraph 167(a) of the IRPR is satisfied, we must determine
whether or not the officer’s decision to dismiss the applicant’s statements, in
this regard, was based on a finding as to credibility, or whether it was based
merely on insufficiency of evidence – as was suggested by the officer in his
reasons.
[24]
In the
absence of a determination as to credibility, an applicant’s evidence is
presumed to be true. Is it possible that the officer, in this case, accepted
the applicant’s allegations regarding having been assaulted in 2005, 2007 and
2009 as true, but nonetheless found that the burden of proof had not been
satisfied in this regard? Did he merely assess the probative value of the
applicant’s evidence, without making a credibility finding, and determine that
it was insufficient, on its own, to prove that the alleged events took place?
I do not think so.
[25]
Of course,
a determination as to probative value and weight can be made without making a
determination as to credibility. Such is the case, for example, when evidence
is found not to be directly relevant to the facts alleged, or when evidence is
found to be unreliable for reasons other than credibility.
[26]
However,
in this case, the applicant’s statements with respect to the 2005, 2007 and
2009 assaults were directly relevant to the question of whether the alleged
events took place. Further, credibility aside, neither the officer nor the
circumstances point to any issue with respect to the reliability of the
applicant’s written submissions. The officer did indicate, however, that he
drew “a negative inference from the fact that the applicant [did] not seem to
have raised [the 2005 assaults] when he withdrew his initial claim for refugee
status [in 2006]…”. I find that in rejecting the applicant’s allegations in
this case, the officer did, in fact, make a veiled credibility finding similar
to the ones pointed to by this Court in Zokai v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1581, 135 A.C.W.S. (3d) 286, Liban
v. Canada (Minister of Citizenship and Immigration), 2008 FC 1252, 172
A.C.W.S. (3d) 730, L.Y.B. v. Canada (Minister of Citizenship and
Immigration), 2009 FC 1167, 85 Imm. L.R. (3d) 220, and S.A. v. Canada
(Minister of Citizenship and Immigration), 2010 FC 549 [S.A.]. To
borrow the words of Justice Sean Harrington from S.A., above at para.
20, “In my view, the PRRA officer could not have made the decision he did
unless he did not believe the claimant. That lack of belief is inherent in his
analysis.” I find that a credibility determination was made.
[27]
With
respect to paragraph 167(b) of the IRPR, there is no question
that the PRRA officer’s negative credibility finding, and the resulting
determination that the applicant had failed to prove the incidents of 2005,
2007 and 2009, seriously undermined the applicant’s claim to a personalized
risk in South Korea. As such, it cannot be argued that this determination was
not “central to the decision with respect to the application for protection”. The
criteria set out in paragraph 167(b) is satisfied.
[28]
If the
officer had accepted the applicant’s evidence regarding the events of 2005,
2007 and 2009, then the officer would have believed that: the applicant had
been repeatedly assaulted by his employers, death threats were recently issued
against the applicant, an attempt on the applicant’s life had recently been
made, and most importantly the police had consistently
refused to provide the applicant with assistance. In my mind, had these
allegations been accepted as proved, then paragraph 167(c) of the IRPR
may well have been satisfied; i.e. this evidence might have justified allowing
the application for protection.
[29]
Furthermore,
I note that because the Board refused to hear the applicant’s refugee claim,
the applicant has never had his credibility assessed in the context of an oral
hearing. The Supreme Court of Canada in Singh, above at para. 20,
indicated that, “where a serious issue of credibility is involved, fundamental
justice requires that credibility be determined on the basis of an oral
hearing.” For these reasons, in failing to grant the applicant’s request for
an oral hearing, I find that the PRRA officer breached the duty of procedural
fairness that was owed to the applicant.
d) Was the PRRA officer’s finding
as to state protection unreasonable?
[30]
I find
that the officer’s state protection analysis is undermined by the reviewable
errors identified under the previous two headings. The fact that the officer
failed to engage in any detailed discussion of the alleged events of 2009 led
to a state protection analysis that was conducted largely in the abstract. The
availability of state protection should not be decided in a factual vacuum with
regard to a claimant's personal circumstances (Flores v. Canada (Minister of
Citizenship and Immigration), 2010 FC 503 at para. 4). It may well have
been that the reason the events of 2009 were not discussed as part of the state
protection analysis was because the officer had discounted them as unproven.
However, as discussed above, such a determination would have involved a suspect
credibility finding, given the lack of an oral hearing. Ultimately, the errors
discussed above resulted in an incomplete state protection analysis. As such,
the finding of state protection in this case was unreasonable.
[31]
For these
reasons, the application for judicial review is granted. The matter is
referred back for redetermination.
JUDGMENT
The application for judicial review is granted. The matter
is referred back for redetermination.
“Danièle
Tremblay-Lamer”
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