Date:
20090522
Docket: IMM-5048-08
Citation: 2009 FC 506
Ottawa, Ontario, this 22nd
day of May 2009
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
Mi Sook OH
Jie Eun (Zoe)
SONG
Respondents
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review by the Minister of Citizenship and
Immigration (the “Minister”), pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”), of a decision by the
Immigration and Refugee Board’s Refugee Protection Division (the “RPD”), dated October
17, 2008, wherein the respondents were found to be Convention refugees.
* * * * * * *
*
[2]
The
respondents, Mi Sook Oh, and her daughter, Ji Eun (Zoe) Song, are citizens of South Korea. The facts
of their case are somewhat unusual.
[3]
The
respondents entered Canada on April 20, 2007 and made a claim for refugee
protection on September 12 of that year. Their hearing before the RPD took
place over two days.
[4]
On
March 27, 2008, the first day of the hearing, the respondents were
unrepresented. Mi Sook Oh was designated as her daughter’s representative. She
alleged that she was being persecuted by a renowned pastor of the Full Gospel Church who had
“poisoned everyone against her”. Towards the end of the hearing, when asked if
she could provide additional information to the RPD, the respondent became very
agitated. When her daughter tried to calm her down, she hit and pushed her.
[5]
Following
this episode, it was decided that the Ministry of Children and Family should be
notified and a designated representative appointed over the minor child. The
mother was identified as a vulnerable person and involuntarily hospitalized due
to mental illness. She was advised to leave her daughter under the care of the
Ministry of Children and Family so that she could be represented by counsel.
[6]
While
hospitalized in Canada, Mi Sook Oh was diagnosed with schizophrenia
and chronic paranoid delusions, although she denies having a mental illness.
She was appointed a designated representative who helped her obtain a lawyer.
[7]
The
Minister intervened upon resumption of the hearing on August 20, 2008, at which
both respondents were represented by lawyers. In reasons dated October 17,
2008, the RPD determined that the respondents were Convention refugees.
[8]
Considering
the new issues arising subsequent to the manifestation of Mi Sook Oh’s mental
illness, the RPD states:
[17] . . . The
questions are, is there more than a mere possibility that these claimants would
be persecuted should they return to Korea on the bases [sic] of a
Convention ground? Does “those who are living with a mental illness or
perceived to be living with a mental illness in South Korea” constitute a particular social group?
Are the claimants Convention refugees? Another question is; are the claimants’
predicaments ones that can be decided under Section 97(1)(a) and/or (b)?
[9]
The
RPD never gets to the section 97 analysis, concluding that the respondents meet
the criteria of Convention refugees, under section 96 of the Act.
[10]
With
respect to credibility the RPD concludes that, because the trustworthiness of
the respondent’s testimony is substantially compromised by her condition,
greater weight is to be placed on the objective elements of the claim. Her
daughter’s evidence, however, is given the full weight of sworn testimony. With
respect to the latter’s claim, the RPD determines that the minor claimant is
the member of a particular social group, as the claimant’s daughter, namely children
of the mentally ill in Korea. The RPD finds on a balance of
probabilities, based upon the sworn evidence of the minor claimant, that she
was in state care in Korea, and in state care she lived in inadequate
housing, did not receive emotional support at the facility, was not sent to
school, and was not informed of her mother’s whereabouts. The RPD concludes
that the child’s basic human rights were violated and that this amounted to
persecution.
[11]
In
her evaluation of the question of persecution, the RPD member examines the
documentary evidence provided by the respondents, on the basis of which it
finds “that violations of human rights do regularly occur within the mental
health system in Korea”. These include:
-
Illegal and
forced hospitalization
-
Failure to
properly conclude effectiveness of hospitalization
-
Forgery of
medical records
-
Refusal to
discharge patients from mental health facilities
-
Unlawful
separation and duress
-
Unreasonable
limitations on the freedom of correspondence
-
Excessive
CCTV installations in facilities
-
Frequent
violence
[12]
The
RPD then goes on to consider the availability of state protection,
acknowledging the presumption that a state can protect its citizens. The
Minister’s submissions are summarized. At paragraph 44 of the decision, the RPD
concludes that South Korea is making serious efforts to protect
individuals with mental illness, but finds that its efforts are not
sufficiently well-established to provide adequate protection to the respondent.
[13]
Finally,
the RPD considers the minor respondent’s claim, and concludes that were she to
be returned to Korea, she would likely be put in the care of the state, in the
context of which she would face more than a mere possibility that her basic
human rights would be violated, given the condition of facilities for children.
* * * * * * *
*
[14]
The
Minister identifies only one issue in this review: Did the RPD err with respect
to its application of the test for state protection?
[15]
It
is common ground that the appropriate standard of review for evaluating whether
the RPD properly applied the test for state protection is reasonableness (Chaves
v. Canada (M.C.I.), (2005), 45 Imm.L.R. (3d) 58 (F.C.); Nava v. Canada (M.C.I.), 2008 FC 706, [2008]
F.C.J. No. 901 (QL)).
[16]
The
Minister argues that the RPD erred in the following way:
.
. . In concluding that state protection was not adequate because human rights
violations occur against the mentally ill in Korea,
Member French conflated the test existence [sic] of persecution with the
assessment of the adequacy of state protection and consequently required and
applied an incorrectly high standard of “perfect” state protection.
[17]
I
cannot agree. Contrary to the Minister’s allegation, the RPD concludes by
stating that the claimant had “met the onus on her by providing clear and
convincing evidence that establishes on a balance of probabilities that the serious
efforts to protect the rights of the mentally ill being made by the state in
Korea fall short of providing her adequate protection”.
[18]
In Canada
(Attorney General) v. Ward, [1993] 2
S.C.R. 689, the Supreme Court of Canada provides the following
reminder, at pages 731-732:
As
explained earlier, international refugee law was meant to serve as a “substitute”
for national protection where the latter was not provided. For this reason, the
international role was qualified by built-in limitations. These restricting
mechanisms reflect the fact that the international community did not intend to
offer a haven for all suffering individuals. . . .
[19]
A
refugee claimant is therefore called upon to provide “clear and convincing
confirmation of a state’s inability to protect” him or her (Ward, at
page 724). In the absence of such evidence, the claim must fail in the face of
the presumption that states are able to protect their citizens.
[20]
Indeed,
the concepts of persecution and state protection are expressly interconnected
(see Ward, supra, at pages 721 and 722). I note that, in the
present case, there has not been any issue raised in connection with the RPD’s
findings on the well-foundedness of the respondents’ fear of persecution.
[21]
Here,
considering the particular circumstances of the case, I am satisfied that the
RPD identified and applied the correct test for state protection. The RPD laid
out the presumption of state protection and the onus to be met by the
claimants, and evaluated the evidence in the record before it. Its conclusions
fall within the range of “possible, acceptable outcomes which are defensible in
respect of the facts and law”, and are entitled to deference (Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190,
at paragraph 47).
* * * * * * * *
[22]
For
these reasons, the application for judicial review will be dismissed.
JUDGMENT
The application for judicial
review by the Minister of Citizenship and Immigration, pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27,
of a decision by the Refugee Protection Division of the Immigration and Refugee
Board, dated October 17, 2008, is dismissed.
“Yvon
Pinard”
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