Ottawa, Ontario, December 19, 2005
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
CHAE HWA JEONG
JIN HYUCK JEON (By his litigation guardian)
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Nam Ki Jeon came to Canada from South Korea in 2000. He was accompanied by his wife, Chae Hwa Jeong, and their son, Jin Hyuck Jeon. They claimed to have been pursued by loan sharks and organized crime members who sought repayment of large debts Mr. Jeon incurred in a failed business venture. The applicants sought refugee protection in Canada, but a panel of the Immigration and Refugee Board dismissed their claims. The Board did not believe important parts of their account of events. It also concluded that the family would benefit from state protection in South Korea.
[2] The applicants argue that the Board made a number of serious errors in its analysis of their claims and ask me to order a new hearing. I can find no basis for overturning the Board's decision and must, therefore, dismiss this application for judicial review.
I. Issues
- Did the Board err in its treatment of the evidence supporting the claim?
- Was the Board's analysis of state protection adequate?
- Did the Board err in failing to consider the applicants' claims under s. 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27?
A. Did the Board err in its treatment of the evidence supporting the claim?
[3] The applicants raised several separate issues relating to the Board's assessment of the evidence. I will deal with each in turn.
(i) Did the Board err by failing to identify the parts of the applicants' claims that it found credible?
[4] The Board identified several areas of the applicants' evidence that contained inconsistencies or contradictions. The applicants argue that the Board had a duty to identify the parts of the evidence it found to be credible, not just the parts it did not believe.
[5] The Board's credibility findings went to the core of the applicants' claim. In those circumstances, it did not have an obligation to identify areas of the evidence which it did believe. The situation is different in circumstances where the Board finds inconsistencies relating to minor or peripheral matters. There, the Board must go on to deal with the credible parts of the claim: M.M. v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 1110 (F.C.A.) (QL).
(ii) Did the Board err by failing to refer specifically to a corroborative letter from their pastor in South Korea?
[6] The applicants presented a letter written by a pastor in South Korea. The letter confirmed that the applicants had had troubles with organized crime members in Korea and that those persons were still looking for them. The Board did not refer to this document in its reasons.
[7] The applicants did not supply this letter until very late in the process. They obtained it after their first hearing at which they had been asked specifically why they had not obtained a supportive letter from their pastor. In my view, this document was not so probative or significant that it gave rise to a duty on the Board to consider its value explicitly: Cepeda-Guttierez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (T.D.) (QL).
(iii) Did the Board wrongly fault the applicants for failing to produce documentary evidence that corroborated their claims?
[8] The applicants argue that the Board treated them unfairly when it criticized them for failing to produce documentary evidence that would corroborate their version of events.
[9] The applicants presented few documents supporting their claim. Mr. Jeon was asked at the first hearing whether he had documents that would show how much money he owed and to whom - documents such as contracts, financial statements, invoices, correspondence, or other business records. He said he had none.
[10] Mr. Jeon was given a further opportunity to produce documents. There was an adjournment of the proceedings from September 2003 to September 2004. Mr. Jeon was informed at the time of the adjournment that he should produce corroborative evidence before the next hearing. He did not, although he produced other documents (including the letter referred to above). The Board did not accept his explanations for not attempting to produce the kind of documentary evidence that would support the main elements of the claim. I cannot find any error on the Board's part.
(iv) Did the Board fail to consider the evidence of Jin Hyuck Jeon?
[11] The applicants argue that the Board failed to consider Jin's testimony, which corroborated his parents' account of being threatened by criminals.
[12] Jin was asked only a couple of questions. He described being held by the neck by a "gangster" for about ten minutes. He felt some pressure and was uncomfortable breathing.
[13] In my view, the Board had a duty to consider Jin's evidence. However, its failure to mention Jin's testimony in its reasons did not have any impact on the case as a whole. The Board analyzed the other evidence thoroughly and concluded that the family's claim was not made out. Further, the Board's decision on state protection was dispositive of the case, regardless of its findings on credibility.
B. Was the Board's analysis of state protection adequate?
[14] The applicants argue that the Board's finding that South Korea has recently cracked down on organized crime relied on developments that took place after they left, not before. In addition, they argue that the Board's analysis made selective use of the documentary evidence and did not provide a fair representation of the situation in South Korea.
[15] The test for refugee protection is forward-looking. It was appropriate for the Board to consider the situation that would face the applicants on their return, not just the circumstances that prevailed before their departure. Further, the Board's conclusion that state protection was available in South Korea found support in the documentary evidence. The Board was entitled to give that evidence the weight it felt it deserved.
C. Did the Board err in failing to consider the applicants' claims under s. 97 of the Immigration and Refugee Protection Act?
[16] The applicants argue that the Board had a duty to give separate and serious attention to their claims under s. 97 of IRPA, even though it had rejected the claims under s. 96. It did not do so. It dismissed the s. 97 claims in a sentence.
[17] Here, the Board had already rejected the essence of the applicants' claims. It did not believe their main allegations and found that they would probably be protected by state authorities in South Korea in any case. These findings obviated the need to analyze the separate grounds of refugee protection under s. 97. There was simply no factual foundation for them. In my view, the Board did not err.
[18] Accordingly, I can find no basis for overturning the Board's decision and must, therefore, dismiss this application for judicial review. Neither party proposed a question of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is dismissed;
2. No question of general importance is stated.
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-955-05
STYLEOF CAUSE: NAM KI JEON, et al v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 13, 2005
APPEARANCES:
Mr. Segan N. Mohan FOR THE APPLICANTS
Ms. Janet Chisholm FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Segan N. Mohan FOR THE APPLICANTS
Barrister & Solicitor
Scarborough, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada