OTTAWA, Ontario, this 29th day of September, 2005
PRESENT: THE HONOURABLE MR. JUSTICE ROULEAU
BETWEEN:
YOU,SUN ME
LEE, JONG MIN
LEE, JONG GEUN
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application under s. 72(1) of the Immigration and Refugee Protection Act S.C. 2001 c. 27 (the "Act"), for leave and judicial review of the decision of an Immigration Officer ("Officer"), in which the officer found that the applicants has insufficient grounds to support an exemption on humanitarian and compassionate ("H & C") grounds, under s. 25 of the Act.
[2] The principal applicant ("PA") Kwan Hoo Lee, his wife and two children, the other applicants, are Korean citizens.
[3] The applicants applied for refugee status in Canada on August 8, 2002, and applied for a Pre-Removal Risk Assessment ("PRRA") on May 10, 2004. In both cases, it was found that they were not persons in need of protection. The Refugee Protection Division's negative decision was issued April 28, 2003, and the PRRA decision on January 10, 2005. Leave to appeal was denied May 24, 2005.
[4] The applicants also applied for permanent residence under an H & C exemption, under s. 25 of the Act, on May 28, 2003. The Officer's decision dated January 11, 2005, found insufficient ground to grant an H & C exemption to the applicants.
[5] The applicants' initial refugee claim arose out of a monetary loan in Korea. At the time they were restaurant owners in Korea and they borrowed money from a private lender for the operation of the business. The money was apparently borrowed from loan sharks, who beat and harassed the PA and his family when the money was not repaid. The applicants did not contact the police or other authorities in Korea. The applicants claim that the Officer erred in failing to consider their subjective fear of the loan sharks.
[6] Presently, the PA and his wife own and operate a sign making company in Burnaby, B.C. It is submitted that the business is a factor to be considered on an H & C application.
[7] The PA's two sons have attended elementary school in B.C. and it is argued that the children will suffer hardship if the family is forced to return to Korea. One of the children, who has been seen by a Korean psychologist in Canada, is experiencing high levels of anxiety, insomnia, fatigue, hypersensitivity and psychological distress.
[8] The applicants have also become active members of the Vancouver On-Nu-Ri Church; it is argued that this fact mitigates in favour of an H & C exemption.
[9] The Officer found insufficient grounds to support a positive decision. He notes that the concerns regarding subjective fear have been dealt with in the Refugee decision as well as in the PRRA determination.
[10] He noted that the PA owns and operates a sign business in Canada, but finds that the applicant has not shown that the closing of the small business would impose disproportionate hardship on Canadian workers, or on the local economy. The Officer wrote that the PA has supplied little evidence that his business skills are in short supply in Canada, or that the closing of his business would significantly damage the local economy or have an effect on Canadian citizens.
[11] The Officer points out that the PA has significant experience in a variety of businesses and that he should not have trouble finding work in Korea, where he has close relatives who will assist him; as well, he has multiple family members in Korea and no close relatives in Canada.
[12] The Officer then turned his mind to the consideration of the children. He concludes that the children can be protected by their parents and other relatives from further abuse by working with the Korean authorities to curb the criminal activities of the loan sharks. Research supports the Officer's determination that Korean authorities are actively prosecuting loan sharks and other members of Korean organized crime. It is mentioned that the PA and his wife, while in Korea, never notified the authorities of the loan sharks' activities. Dealing with the best interest of the children, the Officer concluded that the children are young, their mother tongue is Korean, and that they are Korean citizens.
[13] In concluding, the Officer refers to the fact that the applicants have a total lack of regard for Canadian Immigration law. They did not leave the country in March 2001, when required to do so at the expiry of their visitor status and did not file a refugee claim until August 2002 (16 months after their status expired); that the PA and his wife were unemployed and the children did not attend school. In addition, the family did not provide CIC with a home address at which they could be contacted.
[14] The Officer found that the applicants had insufficient H & C grounds to warrant an exemption for permanent residence and issued a negative decision.
[15] The applicants argue that the Officer failed to consider the best interests of the children, more particularly the psychological condition of their son; that the Officer failed to consider the weaknesses of the Korean police system, which prevents them from returning to Korea.
[16] The applicants submit that the Officer erred in finding that the applicants were insufficiently established in the community; that the Officer failed to consider the impact on the family of closing the business, rather than the impact on the community.
[17] Finally, the applicants argue that the Officer failed to take into account the length of time that they have been in Canada (approximately 4 years) in assessing the hardship the applicants would suffer if returned to Korea.
[18] The PA sworn an affidavit in support of the present application which he presented at the hearing; the respondent submits that the information and documents in paras 14-18 of the affidavit were not properly before the Officer, and should not be considered in this application. The respondent requests that paras 14-18 of the affidavit, and the related exhibits, be struck out.
[19] As a preliminary issue, I agree with the respondent on the admissibility of paras 14-18 of the PA's affidavit and the related exhibits. When there is new evidence, or evidence that was not properly before the decision maker in an administrative proceeding, the Court will not consider the evidence in an application for judicial review. As a result, I will not consider paragraphs 14-18 of the PA's affidavit, or the related exhibits (see for example Abeida v. Canada(Minister of Citizenship and Immigration) 2004 FC 1281, at para 27).
[20] Apart from the inadmissible evidence, the applicants advance four main arguments:
a. The Officer failed to consider the best interests of the children under s. 25 of the Act;
b. The Officer failed to consider the applicants' establishment in the community;
c. The Officer failed to consider the weaknesses of the police system in Korea; and
d. The length of time the applicants have been in Canada was not properly considered.
[21] The Officer did consider the children, on more than one occasion in the decision. He concluded reasonably that the children could be protected by their parents and relatives in Korea. He noted that the applicants, including the children, have no close relatives in Canada; all close relatives are in Korea. A return to Korea would put the children in closer proximity to their relatives; that the children's mother tongue is Korean, that they are Korean citizens and that they are relatively young. I am satisfied that the Officer turned his mind to the best interests of the children in making his decision.
[22] The second argument raised by the applicant is that the Officer failed to consider their establishment in the community. On the contrary, the Officer explicitly mentioned the applicants' membership in the church, the sign business owned and operated by the applicants as well as the letters of reference from the community supporting the applicants. The Officer considered all the factors for establishment in the community and concluded that the closing of the Lee family business would not impose disproportionate hardship on the local community or Canadian workers. The Officer also concluded that the applicants had not produced any evidence to show that their current level of establishment was enough to cause undeserved or disproportionate hardship, if removed. The Officer clearly turned his mind to the establishment of the family and made reasonable conclusions with respect to establishment and the family business.
[23] The third issue raised by the applicants is that the Officer failed to assess the weaknesses in the police system in Korea. This is totally is without merit; such an assessment was undertaken in the PRRA decision. Under s. 25 of the Act, the onus is on the applicants to show that they have sufficient H & C grounds to justify an exemption from the requirement to apply for permanent residence from overseas.
[24] The final point raised by the applicants is the amount of time spent in Canada. The applicants argue that they have been here for over four years and that the Officer failed to consider the length of their stay in making his decision. On the contrary, the Officer pointed out that the applicants have shown a lack of regard for the CIC by staying in Canada for 16 months without status before applying for Refugee status in 2003. The remainder of the applicants' time in Canada has been occupied by the Refugee application, a PRRA application and the H & C application that is the subject of this judicial review; that presently they did not show any greater establishment in Canada currently than they had in 2003 when the original H & C application was filed. On this issue, the Officer's finding of fact is reasonable.
ORDER
In light of the foregoing reasons, the application for judicial review is dismissed.
"Paul U.C. Rouleau"
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-846-05
STYLE OF CAUSE: KWANG HOO LEE et al v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: September 14, 2005
REASONS FOR ORDER: Rouleau, J.
APPEARANCES:
Mr. James Henshall FOR APPLICANTS
Mr. Scott Nesbitt FOR RESPONDENT
SOLICITORS OF RECORD:
James Henshall
Barrister and Solicitor FOR APPLICANTS
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Ottawa, ON