Jurisprudential Guides - Decision TB4-05778

IN PRIVATE

Redetermination of the Appeal

Reasons and decision

Person(s) who is(are) the subject of the appeal: XXXX XXXX XXXX

Date(s) of hearing:

Appeal considered at: Toronto, Ontario

Date of decision: June 27, 2016

Panel: Edward Bosveld

Counsel for the person(s) who is(are)the subject of the appeal: Adrienne C. Smith, Barrister and Solicitor

Designated Representative(s): XXXX XXXX XXXX

Counsel for the Minister: N/A

Reasons and decision

I. Introduction

[1] XXXX XXXX (the Appellant), a citizen of the Democratic People’s Republic of Korea (North Korea), appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has submitted new evidence in support of her appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the determination of the RPD and to either find her to be a Convention refugee or refer the matter back to the RPD for redetermination.

[2] The Appellant is a minor. The RPD appointed a designated representative to protect the interests of the Appellant and to explain the process to her; that designation continues to apply for the purposes of this appeal.Footnote 1 The RAD is also cognisant of the Chairperson’s Guideline with respect to child refugee claimants.Footnote 2

II. Determinative Issue

[3] This appeal is based on what the Appellant characterizes as “the narrow issue that needs to be decided… whether South Korea should also be a country of reference in the appeal and whether the Appellant would have an automatic right to South Korean citizenship.”Footnote 3 Having reviewed the RPD’s record, the RPD’s decision, and the appeal record, the RAD agrees that this is the determinative issue, though it will simplify the question to ask whether the Appellant is, or could choose to become, a citizen of South Korea.

III. Determination

[4] For reasons set out below, the RAD finds that the Appellant is indeed a citizen of South Korea, and therefore does not require Canada’s protection. Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed.

IV. Background

[5] The Appellant was born in XXXX in North Korea. She is XXXX XXXX XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The Appellant arrived in Canada from China in February of 2013, and claimed refugee protection the following month.

[6] The Minister of Citizenship and Immigration Canada (the Minister) intervened in the Appellant’s claim before the RPD,Footnote 4 taking the position that the Appellant had not established her identity, and that if the Appellant was born in North Korea, she is automatically a citizen of the Republic of Korea (South Korea.) The Minister submitted that the Appellant had not established a well-founded fear of persecution in South Korea, and further argued that she had not rebutted the presumption of adequate state protection in that country. Finally, the Minister also submitted that the Appellant’s evidence suffered from a variety of credibility problems.

[7] The Appellant's application for refugee protection was heard on May 21, August 14, September 6, October 29, and November 26 of 2013. By a decision of May 29, 2014, the RPD found that the Appellant is neither a Convention refugee nor a person in need of protection. The panel accepted the Appellant’s identity as a national of North Korea, and found her to be “a very credible witness.”Footnote 5 However, the RPD also concluded that the Appellant is deemed to be a citizen of South Korea, and found that she had not rebutted the presumption of adequate state protection in that country. It also determined that the harm she fears in South Korea amounts to discrimination and is not persecutory.

[8] The Appellant appealed to the RAD on June 23, 2014. In a decision dated December 21, 2014 (the first RAD decision), the RAD confirmed the RPD’s finding that the Appellant is a citizen of South Korea. The RAD then concluded it had no jurisdiction to determine the appeal, as section 110(2)(d.1) of the IRPA did not allow appeals to the RAD by citizens of countries designated under subsection 109.1(1), of which South Korea was one.

[9] The Appellant sought leave of the Federal Court to commence an application for judicial review of the first RAD decision; leave was granted on June 10, 2015. On September 4, 2015 the Court, on consent of both parties to the application, granted the judicial review and quashed the first RAD decision. While the Court did not provide reasons for its order, the RAD notes that on July 23, 2015 the Court held in another matter that “paragraph 110(2)(d.1) of the IRPA is inconsistent with subsection 15(1) of the Charter and has no force and effect….”Footnote 6

[10] The matter was returned to the RAD. By a decision of November 12, 2015 (the second RAD decision), a differently constituted panel of the RAD confirmed the RPD’s findings that the Appellant is deemed a citizen of South Korea, that she faces discrimination but not persecution there, and that she had not rebutted the presumption of adequate state protection in that country.

[11] On November 30, 2016, the Appellant made an application to re-open her RAD appeal. She argued that she had intended to submit further evidence, and make additional submissions to the RAD, but that the second RAD decision was rendered before she could do so. In a decision of February 3, 2016 (the third RAD decision), the RAD allowed the application and re-opened the appeal. The Appellant was given an opportunity to “file an application for any new evidence and submissions in regard to this matter,”Footnote 7 which was then assigned to the present RAD panel for determination.

V. Application Under Rule 29

[12] On March 17, 2016, the Appellant made an application under Rule 29 and Rule 37 of the RAD Rules, asking the RAD to accept various supporting documents as well as a new Memorandum of Fact and Law.Footnote 8 The Minister has not responded to this Application.

[13] Rule 29(4) requires the RAD to consider “any relevant factors,” and sets out some specific factors to be considered: the relevance and probative value of the documents, whether they bring new evidence to the appeal, and whether the documents could reasonably have been provided earlier, as required by the Rules.

[14] The RAD finds that the proposed new evidence and submissions are relevant to the determinative issues here. Further, this file has a lengthy history, including one RPD decision, three RAD decisions, and one Federal Court decision. The Appellant’s circumstances are extraordinary: she is a minor XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, is assisted by a Designated Representative, and has been represented by a number of different counsel. She did in fact ask the RAD to allow her to adduce this evidence prior to the second RAD decision. For these reasons, the RAD grants the Appellant’s Rule 29 application and accepts the late submission of the Appellant’s new Memorandum and her proposed new evidence, which will be considered for admissibility pursuant to section 110(4) of the IRPA.

VI. The Appellant’s Position

[15] The Appellant submits that the RPD made incorrect findings about whether South Korean citizenship is automatic for North Koreans, and failed to adhere to the principle of stare decisis in refusing to follow case law that found such citizenship is not automatic.Footnote 9

VII. Admissibility of Evidence Submitted on Appeal

[16] Section 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of her claim or that was not reasonably available, or that she could not reasonably have been expectedFootnote 10 in the circumstances to have presented, at the time of the rejection.

[17] It is for the Appellant to make full and detailed submissions in her Memorandum about how any proposed new evidence meets the requirements of section 110(4) and how that evidence relates to the Appellant.Footnote 11

A. Application of Section 110(4)

[18] Section 110(4) establishes a disjunctive test.Footnote 12  The RAD must first consider whether the proposed new evidence arose after the rejection of the refugee claim. If it did, the evidence meets the requirements of the section. If it did not, the RAD must consider whether the evidence was reasonably available for presentation to the RPD prior to the rejection of the claim. If it was not reasonably available at that time, it meets the requirements of section 110(4). If the evidence did not arise after the rejection, and it was reasonably available, the RAD must consider whether the Appellant could reasonably have been expected, in her circumstances, to have presented the evidence to the RPD prior to the rejection of her claim. If she could not have been expected to do so, the evidence meets the requirements of the section.

[19] If the evidence did not arise after the rejection of the claim, was reasonably available, and could reasonably have been expected, in the circumstances, to be presented to the RPD prior to the rejection of the claim, the evidence does not meet the test in section 110(4).  The RAD does not have discretion to admit such evidence.Footnote 13

[20] As the RAD understands it, section 110(4) provides the Appellant with an opportunity to present evidence that could not have been submitted to the RPD – either because the evidence did not exist at the time of the RPD proceeding, or because it did exist but was unavailable, or because it did exist and was available, but the Appellant could not have been expected to present it to the RPD.

[21] In considering whether the evidence arose after the rejection of the claim, the RAD will not restrict its analysis to the date on the proposed new evidence. In the RAD’s view, a document’s “newness” cannot be tested solely by the date of its creation; what is important is the event or circumstance sought to be proved by the evidence.Footnote 14 Old evidence remains old evidence, even if it is placed in a new document with a recent date.

B. Assessment of Evidence that Meets the Requirements of Section 110(4)

[22] Where a document meets the test in section 110(4), as discussed above, the RAD will conduct a further assessment of that evidence. While section 110(4) provides the RAD with factors to consider in assessing a document’s “newness,” these factors alone cannot determine the admissibility of new evidence in an appeal.  To put it simply, if a document is lacking in credibility, or is irrelevant, it would make little sense to admit such document even if it meets the test in section 110(4).

[23] In Singh,Footnote 15the Federal Court of Appeal held that there is no valid reason the RAD cannot apply the criteria set out in RazaFootnote 16 to the assessment of new evidence. While Raza predates the introduction of section 110(4) of the IRPA, it is based on the nearly identical wording of section 113(a). In that case, the Court of Appeal held that new evidence should be considered for its credibility, relevance, newness, and materiality, in addition to any express statutory provisions.Footnote 17 In Singh, the Court found that the criteria from Raza are necessarily implied in the wording of section 110(4).Footnote 18

[24] Where evidence meets the test in section 110(4), the RAD will go on to assess it for credibility. While this is a factor set out in Raza, there are also other reasons to apply it. Section 171(a.3) of the IRPA allows the RAD to receive and base a decision on evidence that is adduced in the proceedings and considered “credible or trustworthy in the circumstances.” This provision makes it clear that, in addition to the factors in section 110(4), the RAD must consider the credibility or trustworthiness of proposed new evidence.

[25] Relevance is a basic condition for the admissibility of any piece of evidence.Footnote 19 RAD Rule (3)(3)(g)(iii) requires the Appellant’s Memorandum to include full and detailed submissions about how any proposed new evidence “relates to the Appellant.” It would be highly inefficient for the RAD to admit irrelevant evidence, and contrary to section 162(2) of the IRPA, which requires all divisions of the IRB to “deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit.”

[26] In addition to credibility and relevance, the factors in Raza include “newness” and “materiality.” Newness is implicitly incorporated into section 110(4) and does not require additional analysis. The Federal Court of Appeal has also found materiality to be redundant, as it is also found in section110 (6) of the IRPA, which describes when the RAD may hold an oral hearing.Footnote 20

[27] For these reasons, the RAD will apply the following factors to considering the Appellant’s proposed new evidence. It will first consider whether the evidence passes the test in section 110(4).  If not, the RAD has no discretion to admit the evidence. If the evidence meets the requirements of section 110(4), the RAD will assess its credibility and relevance in order to determine whether it is admissible.

[28] The Appellant asks the RAD to admit the following evidence in this appeal:

  • (a) A March 9, 2016 affidavit of XXXX XXXX, the Appellant’s Case Worker with the XXXX XXXX XXXX (XXXX) of Toronto;Footnote 21
  • (b) An article, undated but apparently published in a 2012 or 2013 edition of the International Journal of Refugee Law, by Professor Andrew Wolman, entitled “North Korean Asylum Seekers and Dual Nationality;”Footnote 22
  • (c) A copy of South Korea’s North Korean Refugees Protection and Settlement Support Act, last amended January 21, 2014;Footnote 23
  • (d) An article, undated but apparently originating in 2015, published in the Yonsei Law Journal, entitled “The Law and Politics of Citizenship in Divided Korea;”Footnote 24
  • (e) A letter, dated March 11, 2016, from Professor XXXX XXXX with respect to citizenship procedures in South Korea;Footnote 25
  • (f) A March 11, 2016 affidavit of XXXX XXXX, the Appellant’s Designated Representative;Footnote 26 and,
  • (g) A letter, dated January 25, 2016, from Ms. XXXX XXXX to Ms. XXXX.Footnote 27

[29] The RAD will consider each piece of evidence below. First, however, it must address the Appellant’s argument in support of many of the proposed new documents. She submits that:

[W]here there is uncertainty in the evidence at the RPD level on a determinative issue in the appeal, and where the new evidences [sic] resolves the contradiction, the RAD should allow a claimant to respond to these evidentiary deficiencies on appeal.Footnote 28

[30] With respect, this suggested approach is supported by neither statute nor jurisprudence. As discussed above, section 110(4) sets out a clear test for the admissibility of new evidence. The Court has held that the RAD does not have discretion to admit evidence that does not pass this test. The Appellant appears to be splitting her case. She presented some evidence to the RPD; after finding that this did not lead to the acceptance of her refugee claim, she obtained further evidence and now seeks to rely upon it. It is a well-established judicial principle that evidence and issues must be introduced exhaustively and dealt with at first instance.Footnote 29 The Federal Court of Appeal has held that section 110(4) does not provide an opportunity for the Appellant to complete a deficient record submitted to the RPD; rather, it allows for the correction of errors of fact, errors in law, or mixed errors of fact and law.Footnote 30 For this reason, the RAD cannot accept the Appellant’s argument that the RAD must allow her to respond to “evidentiary deficiencies” upon appeal.

[31] Document (a) is an affidavit from the Appellant’s XXXX worker, in which the affiant sets out the history of the Appellant’s refugee claim and appeals. Although it is dated after the rejection of the Appellant’s refugee claim, the evidence therein is not new at all. While the recounting of the Appellant’s refugee claim proceedings is helpful background, this information is already contained in the record. The affiant does state that “the Appellant does not have any desire to live in South Korea,” and the Appellant argues that this “gives the current mindset of the Appellant.”Footnote 31  The RPD was aware of the Appellant’s reluctance to live in Korea;Footnote 32 there is no evidence before the RAD to show that this mindset has changed. The information in document (a) did not arise after the rejection of the Appellant’s refugee claim; in fact, it is already in the record and it cannot be considered as new evidence in this appeal.

[32] Document (b) is an article which was apparently published in either 2012 or 2013.Footnote 33  The Appellant submits that the article is relevant and probative, and serves to clarify confusion about the laws of South Korea. However, the RAD finds that the document does not meet the test in section 110(4). It did not arise after the rejection of the Appellant’s refugee claim in May of 2014. The Appellant has not established that it was not reasonably available to her prior to that rejection. If indeed there was confusion during the RPD hearing on the subject of citizenship, as the Appellant argues,Footnote 34 then she could reasonably have been expected to have presented this document to the RPD.Footnote 35 The RAD notes that the Appellant’s refugee hearing began in May of 2013; the last sitting took place in November of that year, and a decision was rendered by the RPD in May of 2014. The Appellant had between six months and a year to provide this article to the RPD to dispel the confusion which she claims was apparent during her hearings. Even if this document is relevant and probative, as the Appellant claims, it must meet the test in section 110(4). Document (b) does not meet that test and the RAD has no discretion to admit it.

[33] Document (c) is a copy of the North Korean Refugees Protection and Settlement Support Act. Although there is no date on the document, it appears that it was last amended on January 21, 2014, well before the rejection of the Appellant’s refugee claim. The Appellant makes no submissions on how this document meets the test in section 110(4), and does not argue that it was not available for submission to the RPD. In fact, the RAD notes that an earlier version of this legislation appears in the RPD’s record.Footnote 36 This document is not admissible as new evidence. It did not arise after the rejection of the Appellant’s refugee claim, the Appellant has not established that it was not reasonably available to her, and as this Act was at issue during the refugee hearing, the Appellant could reasonably have been expected, in her circumstances, to provide this to the RPD.

[34] Document (d) is an undated article from the Yonsei Law Journal, entitled “The Law and Politics of Citizenship in Divided Korea.” A footnote indicates that the article was presented at a conference in February of 2015. The Appellant’s Rule 29 application does not refer to this document, and her Memorandum lists other proposed new evidence but does not include this document or make any submissions on it.Footnote 37 The Appellant has not provided full and detailed submissions, as required by the Rules, about how this document meets the requirements of section 110(4) and how it relates to her, and for this reason document (d) cannot be admitted as new evidence.

[35] Even if this document could pass the test in section 110(4), the Appellant has not explained its relevance, or otherwise relied upon it in her submissions. The RAD has reviewed the article, and has some difficulty in understanding how it supports the Appellant’s position. For example, the author writes:

In short, that North Koreans are deemed nationals of the Republic of Korea alone does not preclude the recognition of North Korean escapees as refugees. However, what if a North Korean does not want to be treated as a national of the Republic of Korea? Can we impose the nationality of the Republic of Korea upon that person against his/her wishes and despite his/her lack of actual links with South Korea? Unfortunately, North Koreans face increasing difficulty with asylum applications in other countries because they have a country that recognizes them as its citizens even if they do not want to be treated as such…. North Korean asylum seekers are often seen as opportunistic migrants who can, but do not try to, settle in the Republic of Korea, where they are entitled to citizenship.”Footnote 38

[36] Without the benefit of submissions from the Appellant, the RAD cannot ascertain how this document meets the requirements of section 110(4) or how it relates to the Appellant. However, even if it would admit this document, the RAD would find that it supports the conclusion that North Koreans are in fact deemed nationals of South Korea – whether they desire this or not.

[37] Document (e) is a letter, dated March 11, 2016, from a South Korean professor and former bureaucrat “who dealt with processing procedures for North Korean refugees coming to South Korea.” This document is dated after the rejection of the Appellant’s refugee claim; however, its contents are not new at all. The author appears to be writing of his historical experience as a South Korean official of some sort; he provides no time frame and it is not clear whether this experience was recent or in the distant past. The RAD finds that the Appellant has not established that this evidence arose after the rejection of her refugee claim. Was this evidence reasonably available for presentation to the RPD? In her Application, the Appellant submits that:

[G]iven the confusion in the evidence before RPD, which was acknowledged by the Member, the Appellant sought a new opinion on citizenship acquisition procedures in South Korea for North Koreans. This expert was found after the Appellant’s RPD decision and gives clarification to the confusion in the evidence at the RPD level.Footnote 39

This opinion is relevant and probative for the issues under appeal since the procedures for granting citizenship are the determinative issue in the appeal.Footnote 40

[38] If indeed there was confusion at the RPD on this central issue, the Appellant could reasonably have been expected to present this evidence to the RPD to bring clarity. The Appellant has provided no explanation for the fact that this letter was produced in March of 2016, when the RPD hearing took place in 2013 and the decision was rendered in mid-2014. The Appellant has not indicated when she sought this opinion, or explained why it was not obtained in 2013 or 2014. As the RAD has already discussed, section 110(4) does not provide an Appellant with the opportunity to correct a deficient record before the RPD.

[39] The Appellant has not established that the evidence in document (e) arose after the rejection of her refugee claim, or that it was not reasonably available to her prior to that time, or that she could not have been reasonably expected to present this evidence to the RPD. This document is not admissible. Even if this document was admissible here, however, the RAD would give it little weight. The Appellant did not disclose the information provided to the author whose opinion was sought, or reveal the questions he was asked to answer. The author provides vague information about his work as a “bureaucrat with the Korean Republic,” and does not give a position, title, or department. It is significant that he also does not indicate when he filled such a position, or for how long, or why he left it. Even if this document would meet the test in section 110(4), it has little probative value.

[40] The document in (f) is an affidavit from Ms. XXXX, sworn March 11, 2016. She explains how she visited the South Korean consulate on XXXX XXXX, 2016, and questioned an official there about “citizenship acquisition procedures.” The affidavit sets out Ms. XXXX’s summary of the official’s answer. The Appellant argues that this document is “relevant and probative for the issues under appeal;”Footnote 41 in her view, “this interview with the Consulate happened after the Appellant’s RPD claim and thus meets the requirements under section 110(4)(a).”Footnote 42

[41] The RAD finds, however, that the evidence upon which the Appellant seeks to rely here is not that the Designated Representative visited the consulate, but rather the citizenship information provided by the consular official. This information is simply not new. The Appellant does not take the position that South Korean citizenship laws or procedures have changed since the rejection of her refugee claim; rather, she simply attempts to present old evidence with a new date. The RAD finds that the evidence in Ms. XXXX’s affidavit did not arise after the rejection of the Appellant’s refugee claim. The Appellant has not explained why this was not reasonably available at an earlier date. She was represented by the same Designated Representative through six sittings of her refugee hearing in 2013; her claim was not rejected until one year after the first sitting, and six months after the last sitting. Why did she not seek this information from consular officials before or during her RPD hearing? If the RPD panel displayed confusion on the issue of citizenship, as the Appellant argues on appeal, the Appellant could reasonably have been expected, in such circumstances, to obtain and present this evidence prior to the rejection of her refugee claim. Document (f) is not admissible as new evidence here.

[42] Document (g) is a letter, dated January 25, 2016, from Ms. XXXX to Ms. XXXX. In the document, Ms. XXXX confirms the Appellant’s lack of North Korean identity documents. This is not new evidence. In fact, the RPD acknowledged the “absence of documents,” and noted the “difficulties in assessing documents from North Korea.”Footnote 43 The evidence in the January 25, 2016 letter did not arise after the rejection of the Appellant’s refugee claim, and in fact is already in the record. Document (g) is not admissible here.

[43] For these reasons, none of the Appellant’s proposed new evidence is admissible in this appeal.

VIII. The Role of the RAD

[44] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal.

[45] The Appellant submits that the RAD should conduct its own independent assessment of the evidence in the case under appeal and arrive at its own opinion whether she is a Convention refugee or person in need of protection.

[46] It is settled law that the RAD is not to review decisions of the RPD in the manner of a judicial review.Footnote 44

[47]  The RAD is a creature of statute and so is the appeal before it; its role and jurisdiction are best determined by looking at the legislative provisions creating the RAD and the appeal.Footnote 45  Such an appeal 

(i) is directed at the decision of the RPD, (ii) unless new evidence is accepted, is to be entertained on the basis of the record as it was constituted at the time of the RPD’s decision, and (iii) is to be concerned solely with the errors of law, of fact or of mixed fact and law that, according to the appellant, the RPD made. This is the statutory configuration of an appeal before the RAD.Footnote 46

[48] According to the Federal Court of Appeal, the RAD is to carefully consider the RPD’s decision and then carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. It is then to provide a final determination, either confirming the RPD’s decision or setting it aside and substituting the RAD’s own determination of the refugee claim. If the RAD cannot provide such a final determination without hearing the oral evidence already presented to the RPD, the matter can be referred back to the RPD.Footnote 47

[49] With respect to findings of fact and of mixed fact and law, the RAD is to review the RPD’s decision applying a standard of correctness.Footnote 48 When applying that standard, the RAD will not show deference to the RPD’s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the RAD to decide whether it agrees with the determination of the RPD; if not, the RAD will substitute its own view and provide the correct answer.Footnote 49

[50] The RAD may show deference to findings of the RPD where the lower tribunal was in an advantageous position to reach such conclusions. Here the RAD will defer to the RPD’s finding that the Appellant was a very credible witness, as the RPD saw, heard, and questioned the Appellant and was therefore in a better position to make a credibility determination than is the RAD. However, no deference is warranted with respect to the findings which are challenged by the Appellant here. The issue in this appeal – whether the Appellant is or could choose to become a citizen of South Korea – must be determined on the basis of objective evidence. The RPD has no advantage over the RAD in considering that evidence. 

[51] The RAD will apply a standard of correctness to its consideration of the RPD’s decision: it will conduct its own review of the evidence and undertake its own analysis of the question. If this does not lead the RAD to the same conclusion as the RPD, the RPD’s finding is wrong.

IX. The Appellant’s Status in South Korea

[52] The Appellant argues that the RPD erred in finding that she is, or could choose to become, a citizen of South Korea. While the RPD made other findings, such as with respect to state protection in South Korea, the Appellant does not challenge these on appeal.

[53] In Williams, the Federal Court of Appeal set out the principles to be considered when a refugee claimant has more than one potential country of reference. The Court held that where citizenship is within the control of the claimant, and where acquisition of such citizenship is a mere formality, the claimant must show a well-founded fear of persecution against that country. If there is no room for the state in question to refuse status, then the claimant is expected to seek the protection of that state unless she can demonstrate a well-founded fear of persecution there.Footnote 50

[54] In its recent TretsetsangFootnote 51decision, the Court of Appeal held that the control test set out in Williams remains applicable for determining a claimant’s country of nationality.Footnote 52 The Court held further that a refugee claimant who alleges an impediment to exercising her right of citizenship in a particular country must establish both the existence of a significant impediment and that she has made reasonable, but unsuccessful, efforts to overcome such an impediment.Footnote 53

[55] In the Appellant’s submission, discretion exists in the granting of South Korean citizenship. She reminds the RAD that the tribunal is to consider the level of control that the refugee claimant has over the citizenship application process: there must be a degree of certainty.Footnote 54 In her submission, objective evidence indicates that South Korean authorities have some discretion in the granting of citizenship to those born in North Korea. Given that South Korean officials will undertake an investigation into the identity and history of the Appellant, there is no certainty that she will be approved for citizenship.

[56] The Appellant also argues that, in Kim,Footnote 55 the Federal Court found that South Korean citizenship is not automatic for nationals of North Korea. As she reads that decision, the Court concluded that citizenship in South Korea was by no means automatic, as North Koreans must establish “will and desire” to live in South Korea, and as persons who have lived in a third country for an extended period of time are not eligible for citizenship. In the Appellant’s submission, the Kim case continues to be the leading authority on the issue of Korean citizenship. She objects to the RPD’s departure from Kim, and challenges the RPD’s reliance on a RAD decision from July of 2013. She submits that the RPD erred in failing to follow the principle of stare decisis; the lower tribunal was bound by the Court, as is the RAD. Given that there is “considerable debate”Footnote 56 at the previous RPD and RAD proceedings on how to interpret the laws of South Korea, she argues that this appeal too must follow the decision of the Court.

[57] The RAD has considered the Appellant’s submissions on appeal, as well as all of the material in the RPD’s record. That record is voluminous, and contains numerous documents and thorough submissions from the Appellant’s representatives and from the Minister. While the RAD has carefully reviewed all of the evidence and submissions, it will not make specific reference to each document in the record.

A. South Korean Legislation

[58]  There are three pieces of South Korean legislation which are relevant to this appeal. The Constitution of the Republic of Korea (the Constitution) is important because it defines the territory of South Korea as “the Korean peninsula and its adjacent islands,” thereby including all of North Korea in its scope. The Constitution also provides that “nationality in the Republic of Korea shall be prescribed by Act.”Footnote 57

[59] The Nationality Act sets out “the requirements to become a national of the Republic of Korea.”Footnote 58 It provides that an individual is a national of South Korea if that person’s father or mother is a national of the Republic of Korea at the time of the person’s birth. It also holds that a person is a national if born in the Republic of Korea where both parents are unknown or have no nationality.Footnote 59

[60] The Act on the Protection and Settlement Support of Residents Escaping from North Korea (the Protection Act) serves to provide protection and support to North Korean residents escaping from North Korea and “desiring protection from the Republic of Korea….” The purpose of the Protection Act is to assist such North Koreans “to adapt themselves to, and settle down in, all spheres of their lives, including political, economic, social and cultural spheres.”Footnote 60 The Protection Act does not discuss the granting or recognition of nationality; however, it does provide that certain individuals may be ineligible for protection: international criminal offenders, offenders of serious non-political crimes, “suspects of disguised escape”, and those who have for a “considerable period” earned their living in another country.Footnote 61 The Protection Act goes on to describe various forms of “protection,” including settlement support, recognition of academic qualifications, social adaptation training, employment assistance, financial support, medical care, and more. It also sets out circumstances in which protection may be suspended or terminated, such as when the person involved is sentenced to imprisonment, intentionally provides false information to the authorities, or attempts to return to North Korea.Footnote 62

B. Interpretation of South Korean Legislation

[61] In June of 2008, the IRB’s Research Directorate published a Response to Information Request (the RIR) on the issue of South Korean citizenship for individuals born in North Korea.Footnote 63 The paper considered South Korean legislation and information gathered in an interview with an official at South Korea’s Ottawa Embassy. The RIR found that North Koreans “are not automatically accepted as South Korean citizens…. [they] must demonstrate that they possess the ‘will and desire’ to live in (South) Korea….” It also commented that some North Koreans are ineligible for South Korean citizenship, including international criminals and those who have lived in a third country for a long period of time.Footnote 64

[62] According to objective evidence relied upon by the Appellant before the RPD, this RIR “made a significant impact on positive decisions” for North Korean asylum seekers in Canada.Footnote 65 It also made an impact at the Federal Court. In the Kim decision of June 30, 2010, Justice Hughes relied heavily upon the RIR in concluding that it was unclear whether North Koreans would automatically be given South Korean citizenship.Footnote 66 The Court cited the “will and desire” phrase from the RIR and found that there was no certainty to the outcome of the citizenship application process in South Korea.

[63] In October of 2010, the Refugee Review Tribunal of Australia also addressed this issue. It considered the South Korean legislation discussed above. It noted that authorities in the United States “interpret DPRK and ROK legislation to mean that DPRK citizens have the nationality of both countries.”Footnote 67 It reviewed the Canadian RIR, and various expert reports. The Tribunal ultimately concluded that “a North Korean has South Korean citizenship by operation of South Korean law.”Footnote 68 It found that the Canadian RIR “conflated 2 issues – citizenship/nationality on the one hand, and eligibility for the APSSR [Protection Act] assistance package (‘protection’) on the other.”Footnote 69

[64] In KK and ors, the Upper Tribunal of the United Kingdom’s Immigration and Asylum Chamber considered the appeals of three individuals from North Korea, each of whom had been denied refugee protection in the U.K. because they were found to have citizenship in South Korea.Footnote 70 The Tribunal also considered the conclusion contained in the Canadian RIR: “that North Koreans are not automatically accepted as South Korean citizens: they must demonstrate that they possess the ‘will and desire’ to live in South Korea.”Footnote 71 It did not accept this position, instead concluding that a citizen of North Korea, born in that country, has also been a citizen of South Korea since birth. It nevertheless allowed the appeals, as the Appellants had been outside of the Koreas for more than ten years, and under South Korean law were thus presumed to have obtained citizenship elsewhere.

[65] In a decision of July 31, 2013, this panel of the RAD considered an appeal by the Minister against a decision of the RPD which granted refugee protection to two nationals of North Korea.Footnote 72 The Minister submitted new evidence from South Korean officials, who confirmed that North Korean-born individuals are deemed nationals of South Korea.Footnote 73 The RAD considered the Kim decision of the Federal Court, as well as the British and Australian tribunal decisions. It concluded that the RIR erroneously linked protection under the Protection Act with citizenship under the Nationality Act. Having considered the evidence, including the recent evidence from South Korean officials, the RAD concluded that the Appellants were citizens of South Korea.

[66] The RIR in question was subsequently removed from the IRB’s National Documentation Package. A later RIR reported that “citizens of North Korea are recognized as citizens of the Republic of Korea in the Constitution” and that if the individual is not a North Korean infiltrator or agent, “it is certain that ROK citizenship will be granted.”Footnote 74

[67] In support of his intervention at the RPD, the Minister submitted an expert report addressing the subject of South Korean nationality law. The report, dated in December of 2013, was written by Professor Andrew Wolman, Associate Professor at the Graduate School of International Area Studies at Hankuk University of Foreign Studies. The author’s research has focused on the role of national human rights institutions in Asia and on refugee and migration law issues in the Korean peninsula. In order to answer questions posed to him by Citizenship and Immigration Canada, he consulted a number of sources, including government officials, lawyers, and professors.Footnote 75

[68] Professor Wolman gave the opinion that North Korean nationals are, from birth, automatically citizens of South Korea.Footnote 76 He stated that:

The conclusion that DPRK nationals are automatically ROK citizens is accepted by ROK government officials and the vast majority of both foreign and domestic legal scholars. I would consider it now to be settled law within the ROK.

The professor explained three exceptions: naturalized North Koreans of a non-Korean ethnicity, North Korean nationals who have voluntarily taken on the nationality of a third country, and North Korean nationals who can trace their Korean lineage only through maternal descent prior to June 14, 1998.

[69] The RAD notes that the Appellant has not argued that she falls into any of these exceptional categories.

C. The Kim Decision and Stare Decisis

[70] The Appellant argues on appeal that both the RPD and the RAD continue to be bound by the decision of the Federal Court in Kim. In her submission, the Court found that South Korean citizenship is not automatic for nationals of North Korea. As there has been no change in the jurisprudence, the IRB is bound by that finding. The RPD erred, in her submission, by failing to follow the principle of stare decisis, which requires the tribunal to adhere to decisions from a higher-level court. She argues that there was “considerable debate” in the previous RPD and RAD proceedings about how to interpret the laws of Korea and whether or not South Korean officials have discretion to grant citizenship. In view of this uncertainty, she submits, the RAD must follow the decision of the Federal Court in order to provide consistency and predictability in law.

[71] The RAD cannot accept the Appellant’s argument that there has been considerable debate or inconsistency with respect to this issue. In 2013, the RAD found the RIR to be flawed, and concluded that North Korean nationals are deemed citizens of South Korea. In 2014, the RPD followed this reasoning and found the Appellant to be a citizen of South Korea. The first RAD decision in this appeal confirmed this finding, as did the second. The debate occurred because the Appellant, as is her right, vigorously challenged this consistent position. There is little basis for the Appellant’s argument that the RAD must follow Kim in order to provide consistency. In fact, following Kim would do the opposite and create an inconsistency.

[72] The difficulty here, of course, is that the RPD and the RAD have been consistent in not following Kim, at least since the accuracy of the RIR was impugned. The RAD finds that it is not bound by the decision of the Court in Kim because the RAD now has updated and more accurate information on the issue of nationality. Further, the RAD is a specialized tribunal, and the interpretation of the IRB’s Response to Information Requests is certainly part of its expertise.

[73] The Kim decision relied heavily upon the RIR, discussed above.Footnote 77 That document reported that citizenship in South Korea is not automatic for North Koreans, and that South Korean officials have the discretion to refuse citizenship if the applicant is found to lack the “will and desire” to live in South Korea. In its 2013 decision on this subject, the RAD found that the RIR incorrectly linked protection under the Protection Act to citizenship under the Nationality Act.Footnote 78 For the following reasons, the RAD again reaches that determination.

[74] A plain reading of South Korean legislation leads the RAD to conclude the following. First, South Korea’s constitution defines that country’s territory as including the entire Korean peninsula. Second, South Korean’s Nationality Act provides that an individual is a national of South Korea if that person’s father or mother is a national of the Republic of Korea at the time of the person’s birth. Read together, these provisions make it clear that an individual born in North Korea to a national of North Korean is deemed a citizen of South Korea as well. Third, the Protection Act does not grant or deny citizenship; it clearly considers “protection” as settlement assistance.

[75] The RIR reported that a North Korean must have the “will and desire” to live in South Korea and that the granting of citizenship is therefore discretionary. This interpretation is simply not supported by the legislation. The RAD notes that the Protection Act applies to those “desiring protection”;Footnote 79 there is no equivalent language in the Nationality Act, or anything to suggest that “will and desire” can influence the recognition of citizenship. A plain reading of the legislation leads the RAD to conclude that someone without “will and desire” might indeed be denied the benefits bestowed by the Protection Act – but not that such a person would be denied citizenship. The RAD notes here that the “exclusions” from citizenship considered in the RIR are in fact exclusions from protection, set out in the Protection Act.

[76] This view is supported by information provided by the South Korean government itself. In correspondence of May 22, 2013, the First Secretary of the Embassy of the Republic of Korea in Ottawa provided a paper which “represents the position of the government of the Republic of Korea.”Footnote 80 That document states that:

According to the Constitution and other domestic laws of the Republic of Korea, North Korean-born persons are deemed nationals of the Republic of Korea. Therefore, there is no separate procedure needed for Korean-born persons to obtain the nationality of Republic of Korea after entering the Republic of Korea….  In other words, if it is confirmed that he/she is a North Korean defector, no separate process is needed to endow the person with South Korean nationality.Footnote 81

[77] The South Korean government’s response also makes a distinction between nationality and protection. The document refers to North Koreans who have made an application for asylum overseas:

[T]here are no issues with entering South Korea. However, benefits (settlement support fund; rental housing; support for education, medical services, etc.) that assist North Korean defectors under the “Act on the Protection and Settlement Support of Residents Escaping from North Korea” could be suspended.Footnote 82

[78] Having considered this evidence, the RAD again finds that the RIR was factually incorrect when it linked “will and desire” to citizenship. The RAD reaches the same conclusion as did the Australian tribunal: the RIR conflated the issue of protection, which in this case refers to settlement assistance, with the concept of citizenship. This mistake led to a further error – the conclusion that South Korean officials have discretion to refuse citizenship to North Koreans.

[79] The Appellant insisted before the RPD that protection and citizenship were linked, and she maintains that position on appeal:

The Protection Act is the Korean legislation that forms the legal authority for the granting of status to North Korean detractors (sic). The Protection Act sets out a list of groups that the Korean government will refuse to grant citizenship to in Article 9(1)….Footnote 83

With the greatest of respect, this argument is simply not supported by the Protection Act, which deals with assistance and protection but not citizenship, or by the official position of the South Korean government.

[80] It is not possible for the RAD to determine how the Court’s decision would have been different had the RIR not been in evidence, or had the Court known that the RIR was flawed.  However, it is clear that the Court relied heavily upon the RIR and the “will and desire” test cited therein. Beyond that, the Court’s only reference to objective evidence relates to a 2007 article in a law journal and to a UNHCR report.

[81] The law article stated that “the possibility of obtaining ROK citizenship under the South Korean Constitution and the Nationality Act (ROK) should not preclude DPRK defectors from protection under international refugee law.”Footnote 84 This opinion does not, of course, establish that North Koreans are not considered to be South Korean nationals.

[82] The Court suggested that the UNHCR “expressed doubts as to whether all North Koreans, particularly those who have transited through China… would automatically receive South Korean citizenship….”  However, nothing in the quote that follows indicates that citizenship is discretionary; in fact, the UNHCR is quoted as saying that “the clause excludes most North Koreans from international protection because South Korea extends citizenship to all North Koreans, in effect giving them dual nationality.”Footnote 85

[83] As the Kim decision is based in large part on evidence that has, in retrospect, been found to be flawed, it would be inappropriate for the RAD or the RPD to follow that decision with respect to the factual issue of citizenship in South Korea for nationals of North Korea.

D. The Appellant’s Citizenship

[84] The RPD believed the Appellant when she claimed to be a national of North Korea, born to parents who were nationals of North Korea. The RAD defers to these findings, as the lower tribunal had an advantage in assessing the Appellant’s credibility.

[85] The Appellant is deemed by South Korean law to be a citizen of South Korea, as she was born in the Korean peninsula to nationals of North Korea. The South Korean government has provided its official position with respect to the issue of citizenship: “North Korean-born persons are deemed nationals of the Republic of Korea.”Footnote 86 An expert in matters of refugee and migration law matters in the Korean peninsula has provided his opinion that North Korean nationals are, from birth, automatically citizens of South Korea and that this position is settled law, accepted by government officials and the vast majority of both foreign and domestic legal scholars.Footnote 87

[86] The RAD acknowledges that the Appellant has provided numerous documents and opinions which suggest that the granting of citizenship is discretionary. The RAD finds, however, that such opinion evidence cannot overcome the provisions of South Korean legislation, the official written position of the government which is charged with implementing those provisions, and the opinion of a qualified expert that this position is generally accepted.

[87] There remain two issues raised by the Appellant. First, she reminds the RAD that she will be subjected by South Korean officials to an investigation and screening process. She points to the official statement of the South Korean government, which explains that “in the case of North Korean defectors, given that they are confirmed to be North Korean defectors after going through the investigation of the authorities concerned, they become citizens of the Republic of Korea without further procedures.”Footnote 88 This, she argues, indicates that there no certainty that she will be approved for citizenship.

[88] In the unique geopolitical circumstances of the Korean peninsula, it is not surprising that the South Korean authorities desire to thoroughly screen each individual coming from North Korea. There have been cases of North Korean agents claiming to be defectors and refugees, and of agents posing as defectors in order to assassinate a true defector. Situations such as these have increased the pressure on South Korean authorities to ensure that the intentions of North Koreans seeking to access citizenship are bona fide. There are also concerns that defectors and refugees may actually be ethnic Koreans from outside the Korean peninsula.Footnote 89 The fact that the Appellant will be subject to investigation and screening does not make the granting of citizenship discretionary. If she is found to be a North Korean national, she is deemed to be a citizen of South Korea.

[89] The RAD recognizes that the Appellant is a minor and has few or no identity documents. However, she was able to credibly establish her identity before the RPD, and the RAD sees no reason why she should have difficulty in doing this before South Korean officials, who are undoubtedly more expert in assessing North Korean identity than is the IRB.Footnote 90 The fact that South Korean officials will investigate the Appellant’s nationality does not mean that they have discretion to deny her citizenship: if she is found to be a North Korean, she is deemed a citizen, according to South Korean legislation and the government’s interpretation and application of that legislation.

[90] Second, the RAD notes the Appellant’s clear evidence that she does not want to live in South Korea. She argues that South Korean nationality laws require that she express a will and desire to live in that country prior to granting citizenship.Footnote 91 The RAD disagrees. There is no such condition in the Nationality Act, and it appears that the Appellant’s will and desire is relevant only to whether she qualifies for assistance under the Protection Act. However, even if the Appellant’s lack of will and desire is a relevant consideration for South Korean officials, the RAD cannot accept that this places citizenship outside of the Appellant’s control. If the only reason that she cannot have her citizenship endowed is that she simply does not want it, then the granting of citizenship remains within her control and not at the discretion of the South Korean authorities. The “control” test set out in Williams acknowledges that the unwillingness of a refugee claimant to take steps required to gain state protection is fatal to her claim, unless that unwillingness results from the very fear of persecution itself.Footnote 92 While she has argued that the Protection Act creates impediments to citizenship, the RAD has found that this is not the case, and concludes that the Appellant has not established that there are significant impediments to her exercise of citizenship, as considered in Tretsetsang.

X. Conclusion

[91] The RAD finds that the Appellant is deemed to be a national of South Korea by that country’s legislation and government. She does not need to apply for that citizenship, though South Korean officials will verify her country of origin before recognizing her nationality. The evidence before the RAD establishes that once she has been determined to be a national of North Korea, she will automatically be deemed a citizen of South Korea.

[92] The Appellant does not challenge the RPD’s finding that she lacks a well-founded fear of persecution in South Korea or that adequate state protection is available to her there. The RAD is guided by the UNHCR Handbook:

[A]n applicant’s well-founded fear of persecution must be in relation to the country of his nationality. As long as he has no fear in relation to the country of his nationality, he can be expected to avail himself of that country’s protection. He is not in need of international protection and is therefore not a refugee.Footnote 93

[93] The RAD is sympathetic to the situation of the Appellant – a minor XXXX XXXX XXXX XXXX XXXX XXXX XXXX, who has found some stability and happiness in Canada. However, the RAD has no jurisdiction to determine this appeal on humanitarian and compassionate grounds. As the Appellant has not established that she has a well-founded fear of persecution in South Korea, she is not entitled to Canada’s surrogate protection.

[94] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed.

Signed: Edward Bosveld
Date: June 27, 2016