Date: 20020115
Docket: IMM-875-01
Neutral citation: 2002 FCT 40
BETWEEN:
MICHELLE MIN AH KIM
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket: IMM-878-01
AND BETWEEN:
JENNY HAE HWA KIM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket: IMM-879-01
AND BETWEEN:
SAM RACK KIM, JUNG YUL KIM and
STEVEN MYUNG JOON KIM
Applicants
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
DAWSON J.
[1] Sam Rack Kim and Jung Yul Kim are the parents of Steven Myung Joon Kim, Michelle Min Ah Kim and Jenny Hae Hwa Kim who are now, respectively, 19, 22 and 24 years of age. These five applicants seek judicial review of the decision of an immigration officer dated February 7, 2001, not to recommend that they be exempted from the requirement of subsection 9(1) of the Immigration Act, R.S.C. 1985, c. I-2 ("Act"). That provision requires every immigrant to apply for and to obtain an immigrant visa before appearing at a port of entry.
THE FACTS
[2] The applicants are citizens of South Korea who entered Canada in August of 1995 on visitor's visas. In April of 1996, they applied for permanent residence in Canada in the self-employed category. Employment authorizations were issued to the adult applicants and student authorizations were issued to the three children.
[3] The application for permanent residence was refused in May of 1998 as a result of the applicants' failure to provide documents requested by a visa officer, and an application for judicial review of that decision was dismissed in May of 2000. In October of 1999 departure orders were issued against the applicants, which orders were stayed pending an application for judicial review of the decision to remove them. That application for judicial review was dismissed in July of 2000.
[4] The humanitarian and compassionate ("H & C") applications which give rise to these applications were filed in September of 2000. The removal of the applicants from Canada was again stayed pending the outcome of these applications for judicial review.
[5] Correspondence from the International Criminal Police Organization ("Interpol") states that Mr. and Mrs. Kim are wanted in South Korea on charges of fraud and violation of the Illegal Check (Dishonored/Bad Check) Control Law. The alleged crimes were described by Interpol to have taken place between August 17, 1995 and October 23, 1995 and also around November 1996. Mr. and Mrs. Kim are described in the Interpol correspondence to have "fled" to Canada on August 15, 1995.
[6] The grounds for the H & C applications are that Mr. and Mrs. Kim fear cruel and inhumane treatment in Korean jails due to the likelihood of detention in Korea should they be forced to return. With respect to the children, the grounds are that they are frightened that their parents will be harmed and that they will be left on their own in Korea if their parents are detained. The children are said to have never been on their own and not to be equipped to deal with this. It is also said that the children will not be able to continue with their studies in Korea, at least in the foreseeable future, because they did not attend high school there and because their parents can not afford to send them to institutions of higher learning in Korea.
[7] The applicants' submissions and supporting documentation relating to their fear of return to Korea were forwarded for a risk opinion to a Post Claim Determination Officer ("PCDO"). On December 7, 2000, the PCDO rendered a negative risk opinion, to which the applicants responded through their counsel with comments and additional supporting documentation. There is disagreement whether the PCDO then rendered a second risk opinion on January 17, 2001, or whether she merely commented on the applicants' new submissions in a permissible fashion.
THE H & C DECISION
[8] After setting out the chronology of events, the immigration officer noted some points arising out of the chronology and stated that he had examined the three files "in a thorough and sympathetic manner" paying particular attention to a number of listed documents (appearing to comprise the complete application). There followed, under the heading "Analysis and Decision", the material portion of the officer's decision which stated:
1. It is clear that Mr. Kim is wanted in Korea for fraud, embezzlement and writing bad cheques. Whether he is innocent or guilty of these charges is the responsibility of the Korean courts and it is inappropriate for Canada Immigration to alter the resolution of a Korean justice issue or consciously assist Mr. Kim in efforts to do so.
2. Mr. Kim's file presentation seems to imply at length that he would be treated poorly in a Korean prison. If Mr. Kim is innocent of these charges, he ought to have nothing to worry about. If he is guilty, Korean legal process is reasonably required. And his emphatic approach to the liklihood [sic] of punishment strongly implies guilt.
3. The risk assessment does not concur with Mr. Kim's assertions of how he would suffer at the hands of Korean law; however, the risk assessment officer stated "... it is my determination that the subjects would not be sentenced to penal servitude."
4. The Kim's have expended all possible efforts to avoid a return to Korea and the H & C is the current method employed toward this bottom line end.
5. It appears that a previous AFL [application for landing] effort ended negatively because information regarding criminality was not provided by Mr. Kim. Their lawyer's contention that the decision was "patently unreasonable and perverse" appears to me to be an unfair assessment.
6. The Kims have been in Canada for 4 years, they started a business and did their best to establish themselves. The presentation stresses the lives of the children, with attention to school success and future potential. I do not see them as de facto, however, given the circumstances and efforts over this period.
In coming to a decision, I paid close attention to the issues of their children, their business and their overall establishment in Canada. However, the aspect of criminality and fleeing from justice in Korea is so compelling and in fact key to any discussion of the selection of new immigrants to Canada that it in the end must take precedence. I have therefore come to the opinion that it is inappropriate to waive A9(1) and the AFL submissions are therefore refused.
I will advise the responsible Removals officer of this decision.
THE SUBMISSIONS OF THE PARTIES
[9] Counsel for the applicants urged that the immigration officer erred by: breaching the duty of fairness by reaching negative credibility conclusions without having interviewed Mr. and Mrs. Kim; coming to an unreasonable decision; and breaching the duty of fairness by obtaining a second negative risk assessment and relying on it without providing the applicants with notice of its contents and an opportunity to answer it. The applicants also alleged that the PCDO, whose opinion was relied on by the immigration officer, erred by: misunderstanding the nature of Mr. and Mrs. Kim's fear; misinterpreting and ignoring the weight of the evidence; and erroneously analysing the equivalency of the criminal law in Canada and Korea. With respect to the children, it was argued that the immigration officer's decision was unreasonable because he failed to consider the applicants as individual persons in their own right and erred in not assessing the hardship that they would face if they were returned to Korea.
[10] In response, it was argued on the Minister's behalf that the immigration officer's decision was reasonable, and that the applicants failed to show that he erred in law, proceeded on some wrong or improper principle, misapprehended or ignored evidence, or otherwise acted in bad faith.
THE STANDARD OF REVIEW
[11] It is settled law that the standard of review applicable to H & C decisions made under subsection 114(2) of the Act is reasonableness simpliciter.
[12] This intermediate standard of review was explained by the Supreme Court of Canada in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at paragraphs 56 and 57 in the following terms:
[...] An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it. An example of the former kind of defect would be an assumption that had no basis in the evidence, or that was contrary to the overwhelming weight of the evidence. An example of the latter kind of defect would be a contradiction in the premises or an invalid inference.
The difference between "unreasonable" and "patently unreasonable" lies in the immediacy or obviousness of the defect. If the defect is apparent on the face of the tribunal's reasons, then the tribunal's decision is patently unreasonable. But if it takes some significant searching or testing to find the defect, then the decision is unreasonable but not patently unreasonable.
ANALYSIS
[13] I have been satisfied that, notwithstanding the forceful and persuasive submissions of counsel for the Minister, these applications for judicial review must be allowed because the officer's reasons for the decision cannot stand up to a somewhat probing examination.
[14] The officer's decision was predicated upon his conclusion that "the aspect of criminality and fleeing from justice in Korea is so compelling [...] that it in the end must take precedence". While on an appropriate evidentiary basis this might be a reasonable conclusion, in the present case there was, in my view, an insufficient evidentiary foundation for that conclusion.
[15] "Criminality" is defined in the Shorter Oxford English Dictionary as the quality or fact of being a criminal, or a criminal act or practice. While it is true that Mr. and Mrs. Kim are the subject of criminal charges in Korea, as the immigration officer did note, there has been no finding of guilt or innocence. Criminality therefore cannot be presumed or relied upon.
[16] The immigration officer, after noting that it was the responsibility of the Korean courts to determine guilt or innocence, went on to remark that if Mr. Kim was innocent of the charges he ought to have nothing to be worried about and that Mr. Kim's "emphatic approach to the likelihood of punishment strongly implies guilt". As to the reasonableness of that conclusion, the PCDO had noted in the risk opinion provided to the immigration officer that Mr. and Mrs. Kim believed that if returned to Korea they would immediately be placed in jail prior to trial where they would face a real risk of torture or other cruel and inhumane treatment, and that they would be denied due process. The risk opinion noted that:
· Credible sources reported instances in which police subjected detainees to verbal and physical abuse, although the number of such cases was declining.
· Prosecutors placed much emphasis on seeking convictions through confessions and that credible sources reported that in some cases police verbally or physically abused suspects, including beatings, threats and sexual intimidation in the course of arrest and police detention, although the number of such cases continue to decline.
[17] I am not sure that a fear of punishment gives rise to an implication of guilt. However, in light of Mr. Kim's stated fear of pre-trial detention and the evidence cited above from the risk opinion which shows that there was an air of reality to Mr. Kim's stated fear, I am satisfied that it was unreasonable for the immigration officer to conclude that there was a strong implication of guilt arising from Mr. Kim's fear of punishment.
[18] It is also important to note that in February of 1999 a report under paragraph 27(2)(a) of the Act had been issued on the basis of subparagraph 19(1)(c.1)(ii) of the Act. The latter subparagraph makes inadmissible those persons "who there are reasonable grounds to believe" have committed an offence outside of Canada that, if committed here, would constitute an offence punishable by a maximum term of ten years or more. The report under section 27 was withdrawn in 1999 on the ground that the documentation available did not justify a direction that a determination be made as to the existence of reasonable grounds to believe inadmissibility. While the immigration officer noted as a fact the withdrawal of the direction and the reason for it, given his remarks about criminality, fleeing justice, and that it would be inappropriate for Canada Immigration to alter the resolution of a Korean justice issue, it does not appear that the immigration officer properly considered the basis for and the effect of the withdrawal of the section 27 report. The section 27 report was withdrawn due to the absence of material to support an inquiry as to whether there were reasonable grounds to believe Mr. Kim had committed a prescribed offence.
[19] As to the issue of fleeing justice, counsel for the Minister argued that the conclusion that the Kims were fleeing justice was one that the immigration officer could reasonably reach based on the fact that Mr. and Mrs. Kim had not remained in Korea to settle their affairs, and based on the timing of their arrival in Canada. Counsel for the Minister observed with respect to the timing that within just over two months after their arrival in Canada that Mr. and Mrs. Kim were wanted by Korean authorities.
[20] Counsel for the Kims pointed to their sworn affidavits put before the immigration officer where they swore that they did not know of the outstanding criminal charges against them in Korea until after their application for permanent residence was refused and that when they left Korea they believed that the sale of their assets would pay off all of their legitimate creditors in Korea. Counsel for the Kims argued that in light of that evidence it was a breach of the duty of fairness for the immigration officer to reject that evidence without an interview.
[21] In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 the Supreme Court of Canada observed, at paragraph 33, that an oral hearing is not always required to ensure a fair hearing and consideration of the issues involved. What is required is meaningful participation in the decision-making process.
[22] I am satisfied from counsel for the Kim's written submission to the immigration officer that Mr. and Mrs. Kim had the opportunity to have meaningful participation in the decision- making process. It is difficult to see what new information could have been presented about the criminal charges if an interview had been granted. Therefore, the absence of an interview did not in this case constitute a breach of the duty of fairness.
[23] It remains, however, that the immigration officer's conclusions must be made with regard to the evidence before him.
[24] The Interpol correspondence is express that the Kims were in Canada before they were wanted in Korea, and that the actions which are alleged to give rise to the criminal charges occurred after their arrival here. That is inconsistent with the notion of fleeing justice in Korea.
[25] As for the fact that the Kim's affairs were not fully settled when they left Korea, their uncontradicted evidence was that in bankruptcy proceedings in Korea assets are sold under a receivership and then the creditors are paid with the proceeds. In that circumstance where there is no basis to conclude that Mr. and Mrs. Kim were responsible for the sale of their assets, I do not find it reasonable to draw an adverse inference from their departure from Korea before sale proceedings were concluded.
[26] Nor do I find that the timing of their arrival in Canada is more consistent with fleeing Korea than with other available inferences.
[27] For these reasons I find that there was an insufficient basis in the evidence upon which the immigration officer could conclude that the "aspect of criminality and fleeing from justice in Korea" was so compelling as to take precedence over all of the other relevant factors. It follows that the officer's decision should be set aside so that a fresh decision may be made which properly weighs all of the relevant factors.
[28] I have considered that the immigration officer's views on criminality and flight from justice were not applicable to the applications of the children. However, to the extent the immigration officer separately addressed the children's applications (which is not clear) it would appear that the children's applications were inextricably linked by the immigration officer to their parents' and were dismissed on the basis of the parents' conduct. To conclude otherwise would mean that the children's applications were dismissed on the somewhat cryptic basis that "I do not see them as de facto, however, given the circumstances and efforts over this period".
[29] While the immigration officer was not obliged to refer to each submission made in respect of the children, the bare conclusion "I do not see them as de facto" is, in my view, insufficient to warrant deference. This is because I am unsure as to what it means, and because no reasons capable of standing up to a somewhat probing examination are given to support that conclusion.
[30] For these reasons, the applications for judicial review are allowed. In that circumstance it is not necessary for me to deal with the other issues raised by the applicants.
[31] Counsel may serve and file any submissions with respect to certification of a question of general importance within seven days of the receipt of these reasons. Each party will have a further period of three days to serve and file any reply to the submission of the opposite party. Following that an order will issue allowing the applications for judicial review and remitting the matters for redetermination by a different immigration officer.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
January 15, 2002
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-875-01; IMM-878-01; IMM-879-01
STYLE OF CAUSE: Michelle Min Ah Kim v. MCI Jenny Min Ah Kim v. MCI
Sam Rack Kim and Others v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 5, 2001
REASONS FOR ORDER OF The Honourable Madam Justice Dawson DATED: January 15, 2002
APPEARANCES
Ms. Barbara Jackman FOR THE APPLICANT
Ms. Amina Riaz FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Jackman, Waldman & Associates FOR THE APPLICANT Toronto, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada