Date: 20030318
Docket: IMM-1617-03
Neutral citation: 2003 FCT 321
Toronto, Ontario, Tuesday, the 18th day of March, 2003
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
JULIE KIM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ms. Kim seeks a stay of an order requiring her removal from Canada to South Korea on March 19, 2003. The order followed the issuance of a negative Pre-Removal Risk Assessment ("PRRA") on February 22, 2003.
[2] Ms. Kim originally fled South Korea in 1996 to escape an abusive relationship with her former husband. That abuse extended to other family members, as well. She fears that if she is returned to South Korea, her former husband will visit further abuse on her, from which little protection is available from state authorities.
[3] Her application for refugee status was turned down by the Immigration and Refugee Board in 2002. The Board found that it was implausible that Ms. Kim was still in danger from her former husband. Further, if she were in any danger, state protection was available.
[4] Ms. Kim made the same assertions in a statement supporting her PRRA application. The PRRA officer arrived at the same conclusions as the Board.
[5] Counsel for Ms. Kim argues:
1. That the PRRA officer made a finding of a lack of credibility on Ms. Kim's part and, therefore, should have held an oral hearing according to s. 113(b) of the Immigration and Refugee Protection Act, and Rule 167 under that Act; and
2. That the PRRA officer's description of the apparatus of state protection in Korea was faulty because it did not reflect the seriousness of the problem of domestic violence in that country or the limited extent to which attempts to improve the situation have resulted in meaningful and effective reforms.
[6] In respect of the first issue, a PRRA officer is obliged to hold an oral hearing when there is a serious issue of credibility at stake, involving evidence central to the decision that would justify allowing the application for protection (Rule 167). Here, there was no central issue of credibility. The PRRA officer found it implausible that Ms. Kim's former husband would cause her harm at this point in time. However, that conclusion was arrived at in circumstances where there was little or no evidence of ongoing violence. It was not based on a finding that Ms. Kim was being untruthful. Further, the finding of implausibility was not central to the decision because the officer went on to consider the availability of state protection.
[7] In respect of the second issue, the PRRA officer did acknowledge that "gender-based violence including domestic violence is still widespread in Korea and it is often thought of as a family problem." The documentary evidence before the officer gave further details about the problems in Korea in this area, to which the PRRA officer could have referred. However, I am not satisfied that the officer's summary is at all incorrect or inadequate. The officer also acknowledges that recent reforms aimed at improving the situation in Korea have not been completely successful. The officer concludes, however, that there are sufficient safeguards in existence that would provide adequate protection to Ms. Kim if she were in any danger. Again, I see no legal error in that conclusion.
[8] Accordingly, I see no serious legal issue arising in this case. While it is unnecessary for me to deal with other aspects of the test for the granting of a stay, I must address one issue relating to irreparable harm that occupied a significant portion of the hearing before the Court. It may be important later.
[9] Counsel for Ms. Kim argued that she would suffer irreparable harm in being sent back to Korea because, in the event that she were successful on her application for judicial review of the PRRA officer's decision, no remedy would be available to her at that point. Counsel relied on the case of Ero v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1276. There, Snider J. held that the removal of an applicant from Canada had the effect of rendering moot reconsideration of a Post-Determination Refugee Claimants in Canada ("PDRCC") application. That conclusion was based on an interpretation of s. 199 of the Act - a transitional rule - and the requirement in s. 112 that an application for protection be made by a person "in Canada." However, that transitional rule has no application here. I see nothing in the Act or the Rules that would interfere with the entitlement of a PRRA applicant, who has been removed from Canada and who is successful on judicial review, to have that application reconsidered.
[10] In light of my conclusion above that there are no serious issues to be tried in this case, this motion is dismissed.
ORDER
UPON motion, dated the 12th day of March, 2003, on behalf of the applicant, for an Order staying the operation of the Deportation Order now scheduled to be executed on March 19, 2003, at 11:50 p.m.
IT IS ORDERED THAT:
The motion is dismissed.
"James W. O'Reilly"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: IMM-1617-03
STYLE OF CAUSE: JULIE KIM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MONDAY, MARCH 17, 2003
REASONS FOR ORDER
AND ORDER BY: O'Reilly J.
DATED: TUESDAY, MARCH 18, 2003
APPEARANCES BY: Mr. Gregory James
For the Applicant
Mr. John Loncar
For the Respondent
SOLICITORS OF RECORD: Mamann & Associates
Barristers & Solicitors
74 Victoria Street, Suite 303
Toronto, Ontario
M5C 2A5
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030318
Docket: IMM-1617-03
BETWEEN:
JULIE KIM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER