Date: 20000719
Docket: IMM-4333-99
BETWEEN:
MI SOOK LIM, JIN WOO PARK AND AH RUM PARK
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] Mi Sook Lim, the principal claimant in this proceeding, is a 40 year old divorcee from the Republic of Korea who sought refugee status as a member of a social group, women in Korea subject to domestic abuse. The other claimants are Jin Woo Park, her 17 year old son, and Ah Rum Park, her 23 year old daughter.
[2] In a decision made on August 11, 1999, the Convention Refugee Determination Division of the Immigration and Refugee Board (the "CRDD") determined that the applicants were not Convention refugees.
[3] In this application for judicial review, brought pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, the applicants seek an order setting aside the decision of the CRDD and remitting the matter for reconsideration by a differently constituted panel of the CRDD.
THE FACTS
[4] It was Ms. Lim"s evidence that in 1976, when she was sixteen years old, she was raped by a man serving in the army of the Republic of Korea, and as a result she conceived her daughter. Due to Korean societal pressures Ms. Lim had little choice but to marry the man, and she did. Subsequently, in 1982, she gave birth to her second child.
[5] Ms. Lim also stated that about a year after her marriage, her husband began to drink heavily. She learned he was having an extra-marital affair and she stated that after that discovery her marriage steadily deteriorated.
[6] It was Ms. Lim"s evidence that her husband became extremely abusive, both verbally and physically, but that she could not leave her husband because in Korea, at that time, this was not an option. She stated she became depressed, suffered from stomach problems, spent many sleepless nights, and attempted suicide on a number of occasions.
[7] She described two specific incidents of violence. The first was in the early summer of 1990. She stated her husband came home drunk one night. After he began to verbally abuse her, and she complained of his drinking, he "head-butted" Ms. Lim, breaking her nose. She testified she required cosmetic surgery as a result. The second episode occurred in the autumn of 1994 when, in what Ms. Lim characterized as a "drunken rage", her husband pushed her violently into a grandfather clock. She put out her hand against the clock to protect herself, but the force of her husband"s push was such that the glass of the clock shattered. Her hand was cut and required 14 stitches.
[8] Ms. Lim stated that in 1996, her family doctor counselled her to get a divorce and to leave Korea. It was her evidence that in December of 1996, with the assistance of the police, she obtained a divorce from her husband. A few days after granting of the divorce, she and her children left Korea.
THE DECISION OF THE CRDD
[9] The CRDD found that the applicants did not establish that there was a reasonable possibility that persecution might occur if any of the three applicants returned to Korea.
[10] The material portion of the reasons of the CRDD is as follows:
| The break finally came in December 1996; it was sure, it was swift. The police played a vital role in assisting the principal claimant. It was the first and the only time that she had sought state protection. |
| The principal claimant did not seek or need the help of a lawyer. Rather, she simply "made a petition to the police station." The police then arrested her husband and held him, in her opinion, until she successfully negotiated a divorce. He was held with a girlfriend and, in the principal claimant"s view, he may have relented somewhat to her material demands to protect his girlfriend. |
| The principal claimant brought in a male relative into the police station to help with her demands. Her husband agreed to give her the house which she subsequently sold. It is not clear from the evidence whether or not she ever needed the transition house shelter which she and her doctor had planned she attend. |
| She was divorced by the 16th and "left on the 23rd". This seems to be a rather powerful example of state protection. |
| There is very little country condition material available about domestic abuse in Korea. The panel acknowledges ancient traditions which until recently created huge social stigmas " the sort which played such a big role in the principal claimant"s unhappiness.6 [footnote omitted] |
[11] After reviewing the available documentary evidence together with some of the principal applicant"s evidence, the CRDD continued:
| Clearly, state protection exists in this case and would continue to should the principal claimant return to Korea, to a standard in excess of that expected in considering the Convention refugee definition.13 |
| The panel, therefore, concludes that the principal claimant is not a Convention refugee. [footnote omitted] |
THE ISSUES
[12] The applicants asserted that the CRDD committed four errors, any one of which was sufficient to cause the decision to be set aside. The four errors alleged are:
| 1. When the CRDD considered the role that the police played in assisting the principal applicant to obtain her divorce, the panel said that it found that "in all likelihood, the police could do so because of the terms of the Prevention of Domestic Violence and Victim Protection Act, as set out above". This is an error as the principal applicant divorced in December of 1996, prior to the enactment of the Prevention of Domestic Violence and Victim Protection Act; |
| 2. The CRDD erred in concluding that the police assisted the principal applicant to obtain her divorce when in fact the police intervened due to adultery and not abuse; |
| 3. There was insufficient evidence on which to make a finding of adequate state protection. The Department of State report referenced by the CRDD in support of its conclusion on state protection went on to say that violence against women in Korea remained a problem; and, |
| 4. The CRDD based its decision on a change in country conditions and erred by failing to consider the effect of subsection 2(3) of the Immigration Act, R.S.C. 1985, c. I-2, as amended (the "Act"). |
ANALYSIS
[13] With respect to the conclusion of the CRDD that the police were likely able to intervene because of the provisions of the Prevention of Domestic Violence and Victim Protection Act, the panel did err in inferring that the police were so able to act because of this legislation. It was not disputed that at the time of the divorce proceedings this legislation was not yet in effect.
[14] As to the effect of such error, on the Minister"s behalf it was argued that the error was not material because, irrespective of the source of police authority, it was clear that the police provided assistance to Ms. Lim.
[15] I am unable to conclude that the error was immaterial to the ultimate conclusion.
[16] In its reasons, after setting forth the principal applicant"s testimony to the effect that she received a divorce on the basis of adultery and that after making a petition for divorce at the police station the police responded by arresting the husband and his girlfriend, the panel stated:
| I reiterate this evidence, because counsel for the claimant argued that "this action on the part of the police had absolutely nothing whatsoever to do with the fact that the ex-husband had been brutally abusing the principal claimant." |
| The panel finds otherwise. The panel finds that the police played, in fact a very pro-active role in assisting the principal claimant to obtain a divorce her husband had previously opposed and in obtaining it on very good terms. The panel finds that, in all likelihood, the police could do so because of the terms of the Prevention of Domestic Violence and Victim Protection Act, as set out above. |
[17] On a careful review of the transcript of the hearing before the CRDD, it is clear that it was the principal applicant"s evidence that while there were laws in Korea which, at the material time, made adultery a crime, the police did not protect victims of violence.
[18] In rejecting the submission that the action of the police had nothing to do with abuse, but that action was based upon adultery, the panel relied upon its erroneous conclusion that "in all likelihood, the police could do so because of the terms of the Prevention of Domestic Violence and Victim Protection Act". The consequence of that error, in my view, was that the CRDD did not properly consider whether or not the state intervention which it found so persuasive would be available to the claimant in circumstances where her complaint was of physical abuse and not adultery.
[19] Thus, I find that in rejecting the submission that the police intervention did not relate to the issue of domestic abuse and violence, the panel made its decision without regard to the material before it and in error.
[20] I have considered whether or not the CRDD, in reaching its ultimate conclusion, actually determined that there had been such a change in country conditions that the principal applicant"s fear of persecution was no longer well-founded. However, if the CRDD was satisfied that refugee status could not be claimed because of a change in country conditions, so as to invoke paragraph 2(2)(e ) of the Act, the CRDD was then obliged to consider the applicability of subsection 2(3) of the Act. See: Yamba v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 457 (F.C.A.).
[21] As the CRDD did not consider subsection 2(3) of the Act, I am unable to conclude that its decision may be upheld on the basis of a finding of a change in country conditions.
[22] In the absence of consideration of this issue by the CRDD, I am not prepared to accept the submission advanced on the Minister"s behalf that on the evidence before me I can conclude that Ms. Lim failed to meet the onus set out in subsection 2(3) of the Act. This issue is for the CRDD to determine.
[23] The result of the error of the CRDD is that its decision must be set aside and the matter be remitted to a differently constituted panel for redetermination. In view of this conclusion, it is not necessary for me to consider the applicants" argument that there was insufficient evidence on which to make a finding of adequate state protection.
[24] No serious question was posed for certification.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
July 19, 2000