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.
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
APPEARANCES:
Wennie Lee FOR THE APPLICANTS
Mopude Oluyomi FOR THE RESPONDENT
SOLICITORS OF RECORD:
Lee & Company
Toronto, Ontario FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT