Date: 20021206
Docket: IMM-241-02
Neutral citation: 2002 FCT 1266
Ottawa, Ontario, Friday, this 6th day of December, 2002.
Present: THE HONOURABLE MR. JUSTICE KELEN
Between:
YUN IE LEE
SUNG HEE JIE
JUNG WON JIE
Applicants
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "CRDD"), dated December 10, 2001, wherein the applicants were declared not to be a Convention refugee as defined in section 2 of the Immigration Act, R.S.C. 1985, c. I-2.
FACTS
[2] The principal applicant is Yun Ie Lee. She is a citizen of South Korea, who claims refugee status on the ground that she will be abused by her estranged husband if returned to South Korea. She alleges that her husband has a continuing interest in her and there is no state protection in South Korea. The other applicants are the principal applicant's two minor children, her daughter Sung Hee Jie and her son Jung Won Jie.
[3] The principal applicant, her husband and their two children came to Canada in 1994 on a Canadian visitor's visas ("CVV") with the intention of making an in-land immigration application. The principal applicant testified it was her idea to emigrate to Canada in hopes the couple could make a fresh start. They were permitted to remain in Canada on renewed CVVs, but their immigration application was denied. Following this, the principal applicant's husband became physically abusive towards her, leading to their estrangement in December 1996. Her husband became involved with a number of other women and was charged with assaulting a woman in 1998. On July 23, 1998, he left Canada and a Certificate of Departure was filed by the Minister. The principal applicant made her refugee claim in 2000. She claims that neither she nor her children are safe from her husband if they return to South Korea.
CRDD DECISION AND BASIS FOR REVIEW
[4] Based on a negative finding of the principal applicant's credibility, the CRDD found the applicants did not have a well-founded fear of persecution and were not Convention refugees. The applicants submit that the CRDD decision should be set aside for three reasons:
- (i) the panel's finding that the applicant's husband had no continuing interest in the applicant after 1996 was based on irrelevant considerations and ignored key aspects of the applicants" evidence;
- (ii) the panel failed to provide valid reasons for its adverse finding of credibility; and
STANDARD OF REVIEW
[5] First, this case requires the Court review findings of fact made by the CRDD. The Court must ask whether the CRDD "based its decision . . . on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it" as set out in paragraph 18.1(4)(d) of the Federal Court Act. See also Matharu v. Canada (Minister of Citizenship and Immigration), 2002 FCT 19. Second, the Court must review a negative assessment of credibility made by the CRDD. The standard used by this Court when dealings with findings of credibility by the CRDD is patent unreasonableness, see Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.).
ANALYSIS
[6] The Court finds the panel did not act in an unreasonable manner by concluding that the applicants did not have a well-founded fear of persecution.
1. Irrelevant considerations
[7] The panel's decision that the husband had no continuing interest in the principal applicant was not based on irrelevant considerations. The findings which the applicants allege to be irrelevant were inconsistencies and implausibilities in the principal applicant's Personal Information Form and her testimony. These findings were relied upon by the panel to find that the principal applicant was not credible about her relationship with her estranged husband. It is trite law to say that the panel is entitled to rely on inconsistencies and implausibilities when negatively assessing credibility.
[8] The applicants submit the panel ignored a letter from Rainbow Information and Social Services Inc. indicating the principal applicant and her husband had received marriage counseling after 1997, and testimony from the principal applicant's clerical minister that he had personally seen the applicant's husband physically assault her on two occasions between 1996 and 1998. The panel did not ignore either piece of evidence. The panel specifically referred to the Rainbow letter and the testimony of the applicant's minister in its reasons, but concluded that neither was enough to establish that the principal applicant's husband had a continuing interest in her. The Court considers the panel's findings of fact to be reasonable based on the evidence.
2. No valid reasons
[9] The panel satisfied the obligation to provide sufficient reasons for its negative assessment of credibility set out in Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.). The importance of reasons explaining a negative assessment of credibility in claims based on domestic violence was reinforced by Mr. Justice Campbell in Griffith v. Canada (Minister of Citizenship and Immigration) (1999), 171 F.T.R. 240 at paras. 24-25:
While expert testimony might not be considered practicable or necessary in some cases, in my opinion it is, nevertheless, incumbent on panel members to exhibit the knowledge required, and to apply it in an understanding and sensitive manner when deciding domestic violence issues in order to provide a fair result and avoid the risk of reviewable error in reaching findings of fact, the most important being the finding respecting the claimant's credibility.
If a claimant is not believed, reasons must be given. In the case of credibility findings with respect to women suffering domestic violence, in my opinion, the requirement for reasons becomes specific: the reasons must be responsive to what is known about women in this condition. The Gender Guidelines are, in fact, an effort to implement the professional education needed to accomplish this objective. [footnotes omitted]
The panel's reasons were responsive to the principal applicant's situation. They supported its finding that the principal applicant was not credible about her relationship between with her husband by citing a number of instances in which the principal applicant's testimony was inconsistent and implausible.
3. Delay in claiming refugee status
[10] The panel also took into account the applicant's delay in claiming refugee status after her husband's departure in 1998. While delay in making a claim for refugee status can be considered in assessing the seriousness of an applicant's contentions, see Hue v. Canada (Minister of Employment and Immigration), [1988] F.C.J. No. 283 (QL), the CRDD must be cautious when applying the presumption respecting delay to situations involving refugee claims based on "non-traditional" grounds such as domestic violence, see Williams v. Canada (Secretary of State), [1995] F.C.J. No. 1025 (QL) at para. 7. And in Griffith, supra at para. 28, Mr. Justice Campbell warned against the use of the objective standard of the "reasonable man" when assessing delay in cases involving a claim based on domestic violence. See also Elcock v. Canada (Minister of Citizenship and Immigration) (1999), 175 F.T.R. 116.
[11] It is the principal applicant's position that the panel erred by failing to consider the principal applicant's explanation that she sought advice but was erroneously told that citizens of South Korea could not make refugee claims. The panel referred to the principal applicant's testimony on the issue of delay at pp. 12-13 of its reasons:
[...] The panel does not accept that the principal claimant delayed her refugee claim because of lack of information from her husband's departure from July 1998 to May 2000, a delay of twenty-two months, or from her husband's estrangement in December 1996, a delay of forty-one months. The CVVs for the claimants were renewed, a United States visa was required for their immigration claim and the claimant has twelve years of education. The panel asked the claimant to clarify why she would not accept the advice, as stated in their immigration interview, advising them to obtain immigration advice only from persons representing Canada Immigration. During this period the claimant testified that she was ashamed of her illegal status; that agencies and her church group were giving her advice; and that she had been initially in contact with CIC for her immigration procedures. With the above, the panel, therefore, does not accept the claimant's explanation that she was unaware of the refugee process or that spousal abuse could be a Convention ground, or that she remained unaware for years after her arrival in Canada. [footnotes omitted]
[12] The Court finds the panel did consider the principal's applicant explanation and did not err in rejecting that explanation. Unlike the claimant in Williams, supra at para. 7, the principal applicant did not provide an "entirely credible explanation" for the delay. It was not unreasonable for the CRDD to conclude that the principal applicant's explanation was implausible since the principal applicant was able to renew the applicants' CVVs, apply for landing and acquire a United States visa while claiming to be unaware of the refugee claim process for six years after her arrival. In any event, the panel's finding on delay was not central to its decision. Even if the panel erred by not considering the principal applicant's explanation, it would not constitute a reviewable error, see Elcock, supra at para. 18.
[13] Neither counsel submitted that this case raised a question of serious importance for certification on appeal.
ORDER
THIS COURT HEREBY ORDERS THAT:
1. This application for judicial review is denied; and,
2. No question is certified.
(Signed) Michael A. Kelen _________________________
JUDGE
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-241-02
STYLE OF CAUSE: YUN IE LEE et al v. MCI
DATE OF HEARING: November 26, 2002
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER
AND ORDER BY: Kelen J.
DATED: December 6, 2002
APPEARANCES BY: Mr. Gregory James
For the Applicants
Ms. Angela Marinos
For the Respondent
SOLICITORS OF RECORD: Mr. Gregory James
Mamann and Associates
74 Victoria Street
Suite 303
Toronto, Ontario
M5C 2A5
For the Applicant
Ms. Angela Marinos Department of Justice
130 King Street West, Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
For the Respondent
FEDERAL COURT OF CANADA
Date: 20021206
Docket: IMM-241-02
BETWEEN:
YUN IE LEE
SUNG HEE JIE
JUNG WON JIE
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER