Date: 20101108
Docket: IMM-739-10
Citation: 2010 FC 1101
Ottawa, Ontario, November 8, 2010
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
CHANG WOO LIM
KYUNGSUN BAE
HYEOK JUN LIM
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I.
Overview
[1]
Mr. Chang
Woo Lim, his spouse, Ms. Kyungsun Bae and their son, Hyeok Jun Lim, came to Canada from South Korea in 2005. They applied for refugee
protection on the strength of Ms. Bae’s allegations of sexual harassment and
assault on the part of her employer in South Korea.
[2]
A panel of
the Immigration and Refugee Board dismissed Ms. Bae’s refugee claim, finding
that she had not availed herself of state protection in South Korea. Ms. Bae argues that the
Board’s analysis of the issue of state protection was deficient. In particular,
she submits that the Board only referred to theoretical sources of protection –
legislation, programs and the state’s good intentions – and failed to consider
whether authorities in South
Korea could
actually protect her. She maintains that the Board’s conclusion was, therefore,
unreasonable and asks me to overturn the decision and order another panel of
the Board to reconsider her claim.
[3]
I can find
no basis on which to overturn the Board’s decision. Its conclusion regarding
the availability of state protection was reasonable in light of the evidence
before it.
II. Factual Background
[4]
Ms. Bae
testified that her employer drugged and sexually assaulted her after an office
party in 2004. She did not report the attack to anyone because she was ashamed
and feared losing her job. In addition, she felt the police would not do
anything to protect her. Her employer continued to harass her in the
workplace.
[5]
After discovering
she was pregnant as a consequence of her employer’s sexual assault, she
transferred from her position in Seoul to another location within the company
in the city of Daegu. Her employer followed her
there and, under threat of revealing photos he had previously taken of her,
forced her to have sex with him.
[6]
Ms. Bae
left South Korea in 2005. She claims that if
she returns the harassment and assaults will continue.
III. The Board’s Analysis of State
Protection
[7]
The Board
found Ms. Bae’s account of events to be, in most respects, credible. The sole
question was whether state protection was available to her in South Korea.
[8]
Ms. Bae
testified that it would have been very difficult for her to tell anyone about
what had happened to her. She did not even tell her husband until after she
became pregnant. She was afraid that if she reported her experiences to police,
she would be regarded as sexually promiscuous and would suffer the ensuing
stigma; she would lose her friends and sacrifice her social life. Further, she
did not trust police. Previously, after the theft of her wallet, she had gone
to the police and they were able to catch the thief. However, the suspect’s
family telephoned her to discuss a possible settlement. Ms. Bae felt that the
police had violated her privacy by disclosing her identity and telephone
number.
[9]
The Board
noted the existence of laws prohibiting sexual assaults and sexual harassment
in South Korea. The Ministry of Gender
Equality has a mandate to combat domestic violence and sexual crimes, which
includes establishing counselling centres and shelters. Victims are offered
assistance in dealing with psychological trauma and pursuing their legal
remedies. Police officers receive ongoing training in responding to sexual and
domestic violence; female officers are specially assigned to these cases.
[10]
After
considering Ms. Bae’s explanation for not seeking state protection and
reviewing the resources available to persons in her circumstances, the Board
concluded that Ms. Bae may have had personal reasons for not seeking state
protection, but her conduct was not objectively reasonable. Her description of
her previous experience with police with respect to her stolen wallet did not
establish a reasonable basis for failing to seek state protection – the
perpetrator’s family could have traced her from the identity documents in her
wallet. Her evidence did not show that state protection was unavailable to her.
IV. Was the Board’s Conclusion Reasonable?
[11]
Ms. Bae
argues, in essence, that the Board’s analysis was superficial in that it failed
to consider whether the measures it cited resulted in actual, adequate
protection for victims of sexual assault. She referred me to documentary evidence
not cited by the Board in support of her position. Those documents show that
there may be inadequate medical services available to victims of sexual
assault, and that penalties for sexual assault tend to be light.
[12]
Ms. Bae
placed particular reliance on a report entitled “Intimate Partner Violence and
State Protection in South
Korea” (2009).
The author, Prof. Clifton Emery, concludes that police response to domestic
violence is inadequate, and that there is wide gap between the legislation
aimed at curtailing domestic violence and the state’s actual response. Overall,
“there are numerous ongoing and serious shortcomings in the policing of
domestic violence in South
Korea”.
[13]
Ms. Bae
contends that the conclusions of the Emery report, while confined to domestic
violence, can readily be extrapolated to sexual assault. I accept that there
may be common factors at play. In particular, cultural or societal attitudes
toward victims of domestic violence may be similar to attitudes toward victims
of sexual assault. In both cases, those views may discourage victims from
seeking state protection. However, if, as Ms. Bae maintains, the treatment of
victims of domestic violence in South Korea
exemplifies the state’s overall failure to protect victims of sexual assault, I
would expect to see some documentary evidence to support that contention. Ms.
Bae was unable to point me to any.
[14]
A refugee is a person with a well-founded fear
of persecution who is unable, because of that fear, to access state protection.
Here, it was not Ms. Bae’s fear of persecution that prevented her from seeking
protection. It was her fear of social stigma. While her reluctance is
understandable, it is not reasonable in the circumstances. As the Board noted,
a “state cannot be considered to have failed to provide state protection when a
claimant has failed to approach the state for protection”. In other words, if
victims do not report crimes, state efforts to protect them can never be more
than theoretical.
[15]
Ultimately, the question is whether Ms. Bae’s
fear of persecution was well-founded. In light of the documentary evidence
showing the resources available to victims of sexual assault in South Korea, the Board reasonably concluded
that her claim was not well-founded.
V.
Conclusion and Disposition
[16]
The Board’s conclusion that Ms. Bae had not
supported her refugee claim with evidence showing that her fear of persecution
in South Korea was well-founded
was reasonable, falling with the range of acceptable outcomes based on the
facts and the law. I must, therefore, dismiss this application for judicial
review. Neither party proposed a question of general importance for me to
certify, and none is stated.
JUDGMENT
THIS COURT’S JUDGMENT is
that:
1.
The
application for judicial review is dismissed.
2.
No
question of general importance is stated.
“James
W. O’Reilly”
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