Date: 20070419
Docket: IMM-2275-06
Citation: 2007
FC 414
Toronto, Ontario, April 19, 2007
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
KI HWA BAE, EUN SEON BAE, AND
EUN JIN BAE
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicants
are an adult female and her two children, all citizens of Korea. They made a claim for refugee status in
Canada which failed. They were to be
removed to Korea at which time they requested
a Pre-Removal Risk Assessment (PRRA). Such assessment was made and by a written
decision dated 18 February 2006, it was determined by a Pre-Removal Risk
Assessment Officer that the application was rejected. The applicants seek
judicial review of that determination. For the Reasons that follow I am
dismissing the application.
[2]
The
applicants arrived in Canada on July 31, 2001 without
proper visa requirements. On November 27, 2003 the applicants made a refugee
claim which was declared to have been abandoned on March 7, 2005. That
declaration was not challenged. On November 18, 2005 the applicants applied for
a pre-removal risk assessment which resulted in the rejection now under review.
[3]
The adult
female applicant’s evidence states that she suffered spousal abuse in Korea. She states that she was beaten and
threatened with a knife by her former husband and suffered other forms of
harassment. As a result, she states, with the assistance of her sister she left
Korea and came to Canada.
[4]
The adult
female applicant does not state that she sought the assistance of any state or
non-governmental authority in Korea who might have been of help
in her situation. She provides no evidence as to why she did not seek any such
assistance nor does she provide any evidence that would suggest that it would
have been futile to seek such assistance.
[5]
The
authorities beginning with Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689
especially at paragraphs 45 through 49 provide that while it is normally
expected that a claimant first seek the protection afforded by their own
country in circumstances where such protection might reasonably have been
expected to be forthcoming however, where it is objectively unreasonable for
the claimant not to have sought the protection of his or her home authorities,
the claimant need not literally approach the state.
[6]
While
there may have been some variance in decisions prior to Ward, since Ward
was decided, it has been determined that protection can be available not just
from state run agencies but also from funded agencies (Pal v. Canada
(M.C.I.) 2003 F.C.T. 698 at para. 5). It is where the state or its
agencies, such as the police, are themselves the perpetrators of the acts of violence
or oppression that failure to complain, in an objective sense, can be presumed
to be reasonable (Kaur v. Canada (M.C.I.), 2005 F.C. 1491 at para. 32).
I do not say that failure to complain is necessarily limited to such
circumstances however, there must be something shown on the record, by the
applicants, as to why they did not complain or that a complaint would be futile.
[7]
Here there
is no evidence from the adult applicant or any of them as to why they failed to
complain or why, at least in their view, complaining would be futile.
[8]
Counsel
for the applicants points to two instances in reports as to Korea that there are a number of reported
incidents of domestic violence but fewer actual prosecutions. These statistics
are meaningless unless placed in some context such as a comparison with other
countries including Canada.
[9]
As to the
whole of the record before the PRRA Officer that Officer came to conclusion
that was entirely reasonable and sustainable on that record:
I accept that domestic violence is an
issue in Korea. A review of the country
condition evidence demonstrates that there are structured ongoing efforts to
improve the state of women and children with respect to domestic abuse. In
addition, there are recourses available to the Applicant in Korea, including protection,
counselling and court action. I note that the Applicant has not demonstrated
that she made an effort to access State Protection before coming to Canada. The Applicant has not
rebutted the presumption of State Protection. I note that the country condition
evidence shows that women and children are not perceived equally in the eyes of
society, but there are ongoing attempts at improving the situation. State
Protection exists in Korea, as well as a network that is
designed to help women and children who are victims. The Applicant has not
succeeded in demonstrating that she and her children are at risk in the event
of their return to Korea.
[10]
The
application will therefore be dismissed. As to the certification of a question,
counsel for the Minister stated that there should be none. Counsel for the
applicants proposed a question as to whether a claimant needed to demonstrate that
an approach to state authorities was made. I believe that the question has
already been explored in the jurisprudence and, in any event, a better factual
circumstance than this one would be needed. No question is certified.
JUDGMENT
For the Reasons given;
THIS COURT ADJUDGES that:
1.
The
application is dismissed.
2.
No
question is certified.
3.
No Order
as to costs.
“Roger
T. Hughes”
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2275-06
STYLE OF CAUSE: KI HWA BAE, EUN SEON BAE, AND
EUN JIN BAE v.
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Toronto,
Ontario
DATE OF HEARING: April 18, 2007
REASONS FOR JUDGMENT
AND JUDGMENT: HUGHES J.
DATED: April 19, 2007
APPEARANCES:
Wennie Lee FOR THE APPLICANTS
Mopude Oluyomi FOR
THE RESPONDENT
SOLICITORS
OF RECORD:
Lee &
Company
Barristers and Solicitors
Toronto, Ontario FOR
THE APPLICANTS
John H. Sims,
Q.C.
Deputy Attorney
General of Canada
Toronto, Ontario FOR
THE RESPONDENT
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