TB7-13005

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB7-13005 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision April 25, 2018 Date de la décision Panel Robert Bebbington Tribunal Counsel for the person(s) who is(are)the subject of the appeal Chelsea Peterdy Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX (the Appellant), a citizen of the Republic of South Korea, appeals a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute a decision with its own determination that the Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the RAD refer the matter back to the RPD with a differently constituted panel. The Appellant has submitted new evidence with the appeal as referred to in subsection 110(4) of the Immigration and Refugee Protection Act (IRPA)1 and requests an oral hearing be held pursuant to subsection 110(6) of the IRPA. DETERMINATION [2] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD and dismisses the appeal. BACKGROUND [3] The Appellant alleged before the RPD that he was born in North Korea to North Korean parents. He was imprisoned in North Korea in 2002 for XXXX years. He was released from prison. He escaped from North Korea and he travelled to South Korea via China and Thailand in 2009. He was given status in South Korea and issued a passport. He allegedly then worked as a XXXX for an internet company. He allegedly criticized the North Korean government in XXXX XXXX. He resigned his position in XXXX 2015 after receiving threats. [4] The Appellant's passport confirms he travelled several times to China.2 He alleges it was for the purpose of obtaining information related to North Korea. He resigned from his job in 2015 because of threats from unknown sources, which he assumed were North Korean agents. He submitted the evidence of the threats to the National Police Agency and he requested personal protection from the police. A police officer checked his whereabouts every morning and evening from 2015 to XXXX 2017. [5] The Appellant felt this protection was not sufficient and he made his way to Canada. The Appellant's hearing for refugee protection was held on May 17, 2017. In a decision of June 8, 2017, the RPD rejected the Appellant's claim finding that the Appellant was provided with the protection of the state in South Korea. The Appellant submits that the RPD erred in matters of procedural fairness and in its treatment of the documentary evidence. ROLE OF THE RAD [6] For questions of fact, mixed fact and law, and law, I have applied the standard of correctness as per Huruglica. In assessing issues involving credibility of oral testimony, I may apply the RAD modified standard of reasonableness in those situations where the RPD enjoys a meaningful advantage as per the decision in X (Re), 2017 CanLII 33034 (CA IRB). ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [7] As provided for in subsection 110(3) of the IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD and may accept documentary evidence and written submissions from the Minister and refugee claimant. Subsection 110(4) of the IRPA provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [8] The Appellant has submitted thirty two documents as new evidence with the Appellant's Record. 1. An affidavit from the Appellant.3 2. An affidavit from an articling student.4 3. A photocopy of a "Patient Information" document from a physician in South Korea.5 4. Exhibit "A,"6 which consists of a description of an exhibition of 42 pen drawings by the Appellant along with a description of the Appellant's background. 5. Exhibits "B to E,"7 which consist of a series of documents that appear to be accompanied by Korean language text which is not translated. 6. A package of 24 articles of country condition documents on South Korea.8 [9] The Appellant submits that the proposed new evidence meets the test of subsection 110(4) of the IRPA because it arose after the refugee claims. [10] Subsection 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that they could not reasonably have been expected9 in the circumstances to have presented, at the time of the rejection. It is for the Appellant to make full and detailed submissions in their Memorandum about how any proposed new evidence meets the requirements of subsection 110(4) and how that evidence relates to the Appellant.10 [11] In addition, if the new evidence meets one of the explicit legislative factors in subsection 110(4), then the second step of the analysis is for the RAD to apply the adapted Raza factors endorsed in Singh.11 In Singh, the Federal Court of Appeal held that the RAD should assess the admissibility of the new evidence for its credibility, relevance and newness. The RAD is not to consider the fourth Raza factor of materiality to the admission of new evidence, which is a consideration for subsection 110(6) and the request for an oral hearing.12 [12] In respect to the Appellant's personal affidavit, the RAD finds this declaration is a review of his testimony at the RPD hearing, which includes the Appellant's personal conclusions about the RPD actions, supplemented with additional explanations of his testimony and actions associated with the hearing. The RAD finds the explanations should have been provided to the RPD at the time of the hearing. The RAD notes further portions of the affidavit are arguments, which are not properly the subject of the affidavit, but should be included in the memorandum which the RAD has considered in its decision. The RAD finds that as much as the affidavit provides the Appellant an opportunity to provide context to his evidence before the RPD, it does not meet the requirements associated with new evidence. [13] In respect to the affidavit from the articling student, the RAD finds that this document is a synopsis of the documents submitted as "exhibits A to E." The RAD notes that these exhibits were before the RPD, and the RPD on the record noted that only Exhibit "A" was provided with an English language translation. The RAD notes that the Appellant argues that he was not aware that he needed to provide translated documents. The RAD finds this argument makes little sense because he obviously was aware enough of the requirement to provide Exhibit "A" in a translated format. The RAD further notes that the Appellant confirmed at the outset of his hearing that he was assisted by an individual in preparing the BOC document. The Appellant confirmed the BOC document was interpreted to him and that he understood the content. The RAD notes that the instructions in the BOC document13 on the second page clearly state, "Attach two copies of any documents you have to support your claim, such as travel documents (including your passport) and identity, psychological or police documents. Include certified translations in English or French for all documents in a language other than English or French" [emphasis added]. The RAD further notes the "Appendix" accompanying the BOC document provides a similar statement about providing certified translations of all documents. [14] The RAD finds the Appellant's argument in respect to the translation of the documents is not credible. The RAD further notes that the Appellant, after arguing that he was denied the opportunity to present his evidence to the RPD, has not provided translated copies of the Korean language documents. He has simply provided a synopsis of the Korean language documents along with the opinions and speculation of the author of the affidavit. The RAD notes this affidavit does not meet the requirement of a "certified translation." The RAD finds these documents do not meet the requirements for admission as new evidence in this appeal. [15] With respect to the medical "Patient Information" document, the RAD finds the Appellant has submitted that he made an effort to obtain the document prior to his RPD hearing. The RAD finds the document meets the requirements of new evidence and it will be admitted in this appeal. [16] In review of the country documents submitted by the Appellant, the RAD notes that the Appellant addresses the content of some of these documents in his memorandum.14 The RAD has considered the Appellant's argument that he was not fully aware of his ability to submit supporting country condition documents. The RAD finds that as much as all of the documents are not "new," they were not readily available to the Appellant at the time of his hearing before the RPD and they do provide credible and relevant information. The RAD admits these documents as new evidence in this appeal. REQUEST FOR AN ORAL HEARING [17] According to subsection 110(6), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in subsection 110(3) must be understood in relation to subsection 110(4). [18] When read together, subsections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (subsection 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [19] The RAD has considered the medical "Patient Information" document15 and notes it describes that the Appellant was treated between 2012 - 2015 for an "Anxiety Disorder" and a "Moderate Depressive Episode." He received medication and "interview" (counselling) and he responded to treatment. The RAD finds the document confirms the Appellant has experienced stress and anxiety associated with past events in North Korea. The document does not provide persuasive evidence that his current situation brought about this condition. The RAD assigns this document little evidentiary weight as support for the Appellant's allegations that he is unable to live without risk or harm in South Korea. [20] The RAD notes that although this evidence has been admitted in this appeal, it must proceed without a hearing. The RAD finds the documents provide insufficient persuasive evidence to support the Appellant's argument. Accordingly, the evidence lacks the materiality to justify either allowing or rejecting the refugee protection claim, and, as such, it does not meet the requirements of 110(6). Each of the requirements in 110(6)(a) through (c) have to be met, and in this case the requirement in 110(6)(a and c) are not met. As such, the RAD has no discretion to hold a hearing based on this document. [21] The RAD has reviewed the country condition articles submitted by the Appellant. The RAD finds that these articles provide additional context to explain the Appellant's particular circumstance in South Korea. The RAD notes that the RPD in its decision did not dispute that the Appellant had faced threats and harassment in South Korea. The RAD notes the RPD found that the availability of State Protection was the determinative issue in the Appellant's claim. The RAD on its review of the record finds it agrees with the RPD's identification of the determinative issue. The RAD has assessed these articles with an appreciation towards their ability to provide information to assist in that determination. [22] The RAD notes that a number of the articles describe that North Koreans masquerading as defectors were arrested16 for spying or trying to infiltrate South Korea as assassins. The RAD finds that these particular articles indicate that the South Korean state security apparatus in apprehending these individuals is performing the duties one might expect it should do. The RAD further notes that a series of articles describe abduction incidents that took place in other countries such as Hong Kong, Japan, China, Europe and the Middle East.17 Another article notes that North Korean spies are operating in countries across the world, including the United States.18 [23] The Appellant submits that these XXXX corroborate his risk of harm in South Korea. The RAD in its review of the XXXX finds that in a general sense, it would appear that the risk to North Korean defectors exists in any country in the world. The RAD further finds that the Appellant's own evidence provides confirmation that the South Korean State and its security officials are actively engaged in the pursuit and apprehension of North Korean agents in South Korea. The RAD assigns little evidentiary weight to these articles as support for the Appellant's allegation that he is at risk of harm in South Korea. [24] The RAD notes that although new evidence has been admitted in this appeal it must proceed without a hearing. The RAD finds the documents provide insufficient persuasive evidence to support the Appellant's argument. Accordingly, the evidence lacks the materiality to justify either allowing or rejecting the refugee protection claim, and, as such, it does not meet the requirements of 110(6). Each of the requirements in 110(6)(a) through (c) have to be met, and in this case the requirement in 110(6)(a and c) are not met. As such, the RAD has no discretion to hold a hearing based on this evidence. ANALYSIS OF THE MERITS OF THE APPEAL [25] The Appellant submits that his right to procedural fairness was breached in that he was not aware that the RPD would utilize a South Korean National Documentation Package (NDP)19 in the process of adjudicating the Appellant's claim. The RAD is not persuaded by the argument of the Appellant. [26] The RAD notes that the Appellant advances case law in support of his argument, but he fails to indicate how this action influenced the outcome of the Immigration and Refugee Board (IRB) hearing. The RAD further notes that the majority of the country documentary evidence utilized in the Appellant's submissions for his appeal were personal documents provided by the Appellant and not taken from the (IRB) NDP. [27] The RAD also notes that when initiating his claim, the Appellant is provided with an "IRB Claimant's Guide," which discusses among other things, "What other documents will the RPD use to decide whether to accept my claim." This item describes the use and function of the IRB NDP for every country and it emphasizes, "It is your responsibility to go to the IRB website to review the documents in the NDP for your home country as the RPD may consider them when deciding your claim." It carries on to state, "Alternatively, a paper copy of the NDP may be viewed at any IRB regional office." In addition, the IRB website describes the availability of "Ready Tours," which are free and designed to assist claimants to prepare for the hearing. [28] The RAD finds that as much as the RPD did not directly address the use of the IRB NDP at the outset of the hearing, appellants are clearly aware of the obligations in preparing for their hearing before the Board. The onus is on the Appellant to fully prepare for this event. The RAD finds the Appellant's argument must fail. State Protection [29] The RAD notes that the determinative issue in this appeal is the availability of State Protection in South Korea. The RAD has reviewed the record as well as the audio recording of the hearing. [30] The documentary evidence states: The Republic of Korea (South Korea) is a constitutional democracy governed by a president and a unicameral legislature. Observers considered parliamentary general elections during the year and presidential elections in 2012 free and fair. Civilian authorities maintained effective control over security forces. The primary human rights problems reported were government interpretation and application of the National Security Law, libel laws, and other laws to limit freedom of speech and expression and restrict internet access; and the continued jailing of conscientious objectors to military service. Corruption was also a problem.... Other human rights problems included the absence of a comprehensive anti-discrimination law, sexual and domestic violence, and trafficking in persons including sex trafficking of children. Societal discrimination occurred against defectors from the Democratic People's Republic of Korea (North Korea or DPRK); ethnic/racial minorities; lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons; persons with HIV/AIDS; and foreigners. Restrictions on workers' rights, including freedom of association and assembly and limitations on political engagement of public servants and teachers, were also problematic. The government took steps to prosecute officials who committed abuses, and impunity was not evident. [...] The Korean National Police Agency (KNPA) is responsible for internal security under the supervision of the Ministry of the Interior (formerly the Ministry of Government Administration and Home Affairs). The Korean Immigration Service is responsible for migration and border enforcement under the supervision of the Ministry of Justice. Civilian authorities maintained effective control over police, and the government had effective mechanisms to investigate and punish abuse and corruption. The National Intelligence Service (NIS) has the authority to investigate crimes or criminal activity related to national security and subversion. Civil society organizations continued to claim that extensive NIS powers and secrecy combined with little oversight enabled the NIS unreasonably and expansively to define and investigate activities it deemed a threat to national security. According to the KNPA, there were no reports of impunity involving security forces during the year.20 [31] The RAD notes that the Appellant submits that the RPD failed to articulate the Appellant's risk in South Korea. The RAD has reviewed the audio recording of the hearing and finds that the RPD acknowledges the Appellant has XXXX XXXX critical of North Korea as part of his work for an internet publication. The RPD later further explores the Appellant's work and how he feels he is in danger in South Korea. The Appellant testifies that he has received threatening emails, unknown telephone calls and strange parcels such as a dead mouse in a box. The RAD finds the RPD is well aware of the nature of the Appellant's claim and the risk he faces in South Korea. [32] The RAD further notes that the Appellant takes issue with the fact that the RPD has described the individuals that he fears as "anonymous individuals." The RAD notes that the Appellant was asked if he could identify or explain who was instigating these threats towards him. He testified that it had to be agents from North Korea. He was further asked how he knew it is from North Korea. He stated "There is no one else." The RAD notes the Appellant's own evidence appears to contradict his testimony when he also states that his XXXX XXXX XXXX XXXX for a wide audience. The RAD finds the Appellant's own evidence confirms the agent of persecution could be any individual who did not agree with his viewpoint. The RAD finds that as much as the Appellant is convinced that he is being threatened by agents of the North Korean government, this statement is based in speculation. The RAD finds that the Appellant has not adduced persuasive evidence to confirm the identity of the individuals behind the threats and harassment he experienced. [33] The Appellant argues that that the Federal Court in Ward21 supports his case, in that states are presumed to be capable of protecting their citizens, except in situations where the state is in a state of complete breakdown. The Appellant asserts that he need not exhaust protection mechanisms if the evidence of similarly situated individuals demonstrates that protection is not available. The RAD finds that the Appellant has misconstrued the evidence. [34] The RAD has previously addressed that the Appellant's documentary evidence indicates that the State Protection mechanism in South Korea in respect to ferreting out spies, informants and potential assassins is functioning quite well. The RAD acknowledges that no state can guarantee perfect protection.22 Where a state is in effective control of its territory, has military, police and civil authority in place and makes serious efforts to protect its citizens, the mere fact that the state's efforts are not always successful will not rebut the presumption of state protection.23 The RAD further finds that the Appellant's documentary evidence confirms that the problems with North Korean agents seeking out those who defect or cause problems for the regime are not strictly isolated to South Korea. The Appellant submits in his Memorandum that the Australian Refugee Tribunal reports that "agents from North Korea have been very active in South Korea and the rest of the world."24 [emphasis added] [35] The RAD notes in order to rebut the presumption of state protection, a claimant must provide "clear and convincing" evidence of the state's inability to protect.25 The RAD finds that the Appellant has not provided persuasive evidence to demonstrate that protection is not available to him. [36] The RAD finds that the Appellant's testimony and personal statements confirmed that when he approached the authorities for assistance, they took his complaints seriously. The Appellant's testimony confirms that when he initially approached the police, they investigated and assigned an officer to his case who communicated on a daily basis with the Appellant through "texting" in order to ensure that he had no problems. [37] The Appellant testified that his risk increased upon the appearance of an article that identified XXXX XXXX XXXX of thirty thousand North Korea defectors. The Appellant stated that he was one of the XXXX XXXX XXXX individuals named. He noted that he began receiving police protection from the National Security department every day. He was escorted to work and back, essentially having full 9:00 to 5:00 protection. In addition, he noted that an officer checked in with him in the evening. The Appellant was asked to explain why this was not sufficient protection and he testified, "The protection was only offered in the daytime, they would just call to follow up, at night there was absolutely nothing." The RAD has reviewed the Appellant's submissions in his documentation and his testimony. The RAD finds, given the Appellant's circumstances, that the protection provided to him was more than sufficient considering his problems had largely been in the form of verbal threats and harassment. The RAD finds there was no persuasive evidence adduced to indicate that should the Appellant's threat level increase, the authorities would not take additional action to protect him. [38] The Appellant further submits that it is unreasonable for him to be expected to live in constant fear and isolation with no assurance that his protection arrangement will prove adequate. The RAD notes that the Appellant stated that his problems began in 2010. A review of the Appellant's passport26 submitted in evidence finds evidence of an individual who travelled extensively outside of the country throughout his time in South Korea. The RAD finds this is hardly the lifestyle of someone who is living in fear and isolation. The RAD finds the Appellant's submissions are not congruent with his activities and this detracts from the credibility of his submissions. [39] The RAD has reviewed the documentary evidence regarding the adequacy of state protection and the measures put in place by South Korea to protect its citizens. As noted earlier, case law very clearly states that the expectation one can have from the state is adequate protection, not perfect protection. After reviewing all of the evidence, the RAD finds that the Appellant has not provided a compelling explanation for not finding the state protection available to him in South Korea adequate. Nor has he provided clear and convincing evidence that the authorities in South Korea would not provide protection to him upon return to South Korea. IN SUMMARY [40] Accordingly, the RAD finds that the Appellant has not satisfied his burden of establishing that there is a serious possibility of persecution on a Convention ground or that, on a balance of probabilities, he would be personally subjected to a risk to life, or a risk of cruel and unusual treatment or punishment, or a danger of torture. CONCLUSION [41] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD and dismisses the appeal. (signed) "Robert Bebbington" Robert Bebbington April 25, 2018 Date 1 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27. 2 Exhibit RPD-1, RPD's Record, Exhibit 1, pp. 41-58. 3 Exhibit P-2, Appellant's Record, pp. 33-41. 4 Ibid, pp. 45-46. 5 Ibid, pp. 43-44. 6 Ibid, pp. 47-56. 7 Ibid, pp. 57-88. 8 Ibid, pp. 89-164. 9 In the French version of the IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, Paragraph 51. 10 Rule 3(3)(g)(iii), Immigration and Refugee Board of Canada, Refugee Appeal Division Rules, SOR/2012-257. 11 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, cited in M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, Paragraph 64. 12 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, Paragraph 64. 13 Exhibit RPD-1, RPD's Record, Exhibit 2, p. 11. 14 Exhibit P-2, Appellant's Record, pp. 91-100, 106, 109, 125, 129, 130, 135-137, 151, 155. 15 Ibid, p. 43. 16 Ibid, pp. 101,107, 109, 121, 122, 123, 124, 125-126, 127, 128, 130-131, 147,149. 17 Ibid, pp. 148, 150. 18 Ibid, pp. 151-152. 19 Exhibit RPD-1, RPD's Record, Exhibit 3, National Documentation Package (NDP) for Republic of South Korea (South Korea), 28 April 2017. 20 Ibid, Exhibit 3, NDP for South Korea, 28 April 2017, Item 2.1, United States. Department of State (3 March 2017), pp. 1, 4. 21 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85 at 725. 22 Zalzali v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 605 (C.A.); (1991), 14 Imm. L.R. (2d) 81; 126 N.R. 126 (F.C.A.) at 615 (C.A.); M.E.I. v. Villafranca, Ignacio (F.C.A., no. A-69-90), Hugessen, Marceau, Décary, December 18, 1992. Reported: Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 at 133 (F.C.A.); Milev, Dane v. M.C.I. (F.C.T.D., no. IMM-1125-95), MacKay, June 28, 1996. 23 M.E.I. v. Villafranca, Ignacio (F.C.A., no. A-69-90), Hugessen, Marceau, Décary, December 18, 1992. Reported: Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 at 134 (F.C.A.). The Federal Court has held that Villafranca is not inconsistent with Ward. See Velarde-Alvarez, Jorge Luis v. S.S.C. (F.C.T.D., no. IMM-194-94), McKeown, February 9, 1995. Reported: Velarde-Alvarez v. Canada (Secretary of State) (1995), 27 Imm. L.R. (2d) 88 (F.C.T.D.); Boston, Edwin v. M.C.I. (F.C., no. IMM-6554-06), Snider, December 4, 2007; 2007 FC 1271. For a contrary view see Garcia v. Canada (Minister of Employment and Immigration), [2007] 4 F.C.R. 385 (F.C.) (Campbell J.); the Federal Court declined to follow Garcia in Tellez Alvarez, Jaime Alejandro v. M.C.I. (F.C., no. IMM-301-08), Mactavish, August 6, 2008; 2008 FC 933. 24 Exhibit P-2, Appellant's Record, p. 135. 25 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85 at 724. 26 Exhibit RPD-1, RPD's Record, Exhibit 1, pp. 41-58. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-13005