On June 8, 1999, October 4, 1999 and January 11, 2000, the Refugee Division heard the claim of XXXXX XXXX XXXX, a citizen of Korea.  He claims Convention refugee status on the ground of membership in a particular social group, i.e., a businessman threatened by the Korean police force.

            The Minister of Citizenship and Immigration intervened in the claim and sought to have the claimant excluded from the Convention refugee definition under Article 1F(b) – the commission of a serious non-political crime outside the country of refuge.  In addition to exclusion, the issues in the claim are nexus to a Convention ground, prosecution as opposed to persecution, the agents of persecution and state protection.

            The claimant has initiated a claim in the category of sur place, which captures the situation of a person not in any danger on leaving his own country, but becoming imperilled by circumstances arising since departing his country.

            Although a great deal of testimony was led in the hearing, through the claimant and a Toronto police officer, the essentials of the claim are neither complex nor many-faceted.  As a businessman in South Korea, the claimant enjoyed a mutually beneficial relationship with a Korean policeman, a Mr. XXX.  They were friends for about 10 years.  Policeman XXX, in return for monetary compensation from the claimant, ensured that the many employees and customers of the claimant’s business were not unduly burdened by parking fines.  Policeman XXX also ensured that visits to the claimant’s business, by police department and fire station officials, yielded no impediments to the business.  The claimant made periodic payments of the equivalent of $3,000.00 to $4,000.00 (Canadian) to policeman XXX.  He told the panel that, in Korea, such an arrangement as he had with XXX was unremarkable.

            In the tenth year of this relationship, the claimant alleges that policeman XXX asked the claimant if he could be guarantor for a loan of the equivalent of half a million Canadian dollars that the claimant was applying for.  The claimant declined on three occasions, but on the fourth try, XXX, reminding the claimant of their friendship, persuaded the claimant to co-sign for the loan.  The claimant recognized that as his friend was a policeman, he would not otherwise have the collateral to secure such a large sum on his own.  For co-signing the loan, the Korean policeman was to receive interest from the claimant’s business.  The deal was struck and, sometime after this, the claimant’s business went bankrupt.  He was unable to satisfy the conditions of the loan and after selling his stock, he still had to pay XXX about $170,000.00.

            The claimant left Korea for Canada in June 1997.  It was his second visit to Canada.  He claims he was on good terms with XXX when he left.  A year later, in July 1998, the Korean policeman, XXX, arrived in Toronto and reacquainted himself with the claimant.  XXX went with the claimant to his bank to ascertain his bank balance and the claimant withdrew $400.00 from an ATM machine and gave it to XXX.  XXX’s intention was to persuade the claimant to return to Korea with him.  The claimant invited XXX to stay at his apartment.  XXX stayed with the claimant for two nights.  He threatened the claimant with a meat cleaver and wrote threatening messages[1] on the walls of his apartment.  The claimant managed to get to a pay phone and place a telephone call to 32 Division.

            The Korean policeman, XXX, and an associate of his, Mr. XXXX, were charged.  The charges included forcible confinement, extortion and assault with a weapon.

            The panel received the testimony of Toronto police officer, Mr. XXXX XXX, attached to 14 Division; he is assigned to the Special Task Force investigating Asian crime.  He was asked to take over the case from 32 Division as 14 Division had jurisdiction over this particular incident.  Mr. XXXX XXX’s testimony was extensive, but the key points emerging from his testimony are as follows.

            Following the arrest of the Korean policeman, XXX, the Korean Consulate in New York came to Toronto to interview the Toronto police and Mr. XXX.  This was the consulate’s duty since a Korean government employee had been arrested.  An officer from the Toronto Korean consulate was unsuccessful in arranging bail for Mr. XXX because he was not a Canadian citizen.  Toronto police officer XXXX XXX told the Korean consular official that the police were opposing bail.  Nonetheless, bail was eventually secured when a Mr. XXXX XXX of Korean Social Services in Toronto put up the required amount.

            Counsel asked Toronto police officer XXXX XXX whether the charges against the Korean policeman XXX were negotiated and withdrawn. XXXX XXX responded that the Toronto police do not negotiate charges.  He testified that he conducted an in-depth investigation into the matter with two of his colleagues.  Because there was the potential of an international incident developing, XXXX XXX and his colleagues contacted Interpol and External Affairs.  An Interpol detective was assigned to assist in the investigation.  XXXX XXX and his colleagues unanimously agreed that a pattern was developing where each witness (the claimant and his alleged protagonist) contradicted the other. XXXX XXX’s investigation included interviews with restaurant owners, bank tellers and a review of a video surveillance tape at the ATM machine.  He was persuaded that his investigation did not support the claimant’s allegations that he was being forcibly confined or that money was being extorted from him.  He also questioned a Korean minister in the presence of the claimant (and in the absence of the Korean policeman) and asked him if the claimant had told him that he was being held and threatened.  The minister said he did not.

            Mr. XXXX XXX reported his concerns to his Detective Sergeant and then to the Crown Attorney.  He felt that the claimant’s attitude had changed as he was no longer co-operating as a victim.  The Crown Attorney concluded that there was not enough credible evidence to further the case and withdrew the charges against the Korean policeman. Counsel asked Mr. XXXX XXX whether it had become an international incident and the fact that the claimant was a fugitive from Korean justice caused him to withdraw the charges.  XXXX XXX testified that this had not become an international incident and that he and his colleagues were wary of withdrawing charges.  They wished to not let it appear that they were being influenced by an outside government.  Neither did they wish it to appear that they were doing favours for a fellow police officer.  They knew, however, that they could not treat him unfairly.

            Both panel members found the testimony of Mr. XXXX XXX to be credible and trustworthy.  After considering all of the evidence, the submissions of counsel and the Minister and the observations of the Refugee Claim Officer (RCO), the panel finds the following.

            The claimant admitted that he was charged and detained twice in Korea for fraud in the equivalent of $3.0 million (Canadian).  He was jailed for four months and released on bail with a one-year probation for violation of the Dishonoured Check Control Act.  He was also charged separately for fraud, (for the same crime), detained for two months and received a two-year probation.  Counsel argues in submissions that the above would be equivalent to a summary conviction offence in Canada and is not a serious non-political offence.  We disagree.  We find that there are serious reasons for considering that the claimant is guilty of a serious non-political crime and should be excluded from the Convention refugee definition pursuant to Article 1F(b).

            In the event that we are wrong, the panel nevertheless finds that the claimant has not shown that there is a nexus between his fear and the Convention refugee definition.  We note in counsel’s submissions that:

The Korean policeman, the Korean police in Korea, the Korean security agencies in and out of Korea and the Korean state became agents of persecution.

            Counsel argues that a nexus exists in the claim because the claimant is a member of a particular social group, i.e., “individuals who fall out with an agent of the state which then engulfs or involves the state machinery and the country.”  This argument is made because the Korean consular officers came to Toronto and because the claimant’s family in Korea were held captive by the Korean police officer’s family in their home.

            The panel finds it to be a gross exaggeration to conclude from the evidence that the state of Korea became involved in persecuting the claimant and his family.  To begin with, the only time the claimant has been in a negative relationship with the state involves his own financial misdemeanours that attracted the jail and bail terms.  His dealings with the Korean policeman were not dealings with the state.  Even if some of the Korean policeman’s colleagues were sympathetic to the latter, there is simply no evidence that the police, as an institution, have singled out the claimant and his family for revenge amounting to persecution.  The involvement in Toronto of consular officials had to do with the charges laid against a government official.  There is nothing remarkable about this.  Korean officials have made no attempts to extradite the claimant.  Even after his convictions in Korea, he was able to leave on his own passport.  His entire family was able to leave Korea on their passports to visit him in Canada.    

There is ample and relevant Canadian case law dealing with similar issues of nexus.  In Calero,[2] the court held that victims of fraudulent actions or organized crime do not constitute a particular social group, thus there was no nexus for two families fleeing death threats from drug traffickers in Ecuador.  In Rodriguez,[3] the claimant was threatened with harm because her husband was involved in the Mafia’s drug-related business.  The Court held that the CRDD did not err in holding that the difficulties of family members of those persecuted for non-Convention reasons – if those difficulties are solely by reason of their connection with the principal target – are not covered by the Convention.  In Rivero,[4] the CRDD was upheld in its finding of no nexus where the claimant was the target of a “private vendetta or personal vengeance” by a government official.  Fear of a police officer seeking to avenge a personal insult was also found to be devoid of nexus in Pierre-Louis.[5]  Rivero and Pierre-Louis replicate the claim before us.  The claimant before us has attracted the attention of an associate who felt he was ‘left holding the bag.’  The fact that the associate was a member of the police force does not move the claimant towards membership in a particular social group.  We find that there is no nexus to a Convention ground.

The sur place nature of the claim, in combination with no nexus, leads us to find that there is not a serious possibility that the claimant would be persecuted for a Convention ground if he were to return to Korea.

Each member of the Refugee Division who heard this claim is of the opinion that the claimant is not a Convention refugee and is of the opinion that there was no credible or trustworthy evidence on which that member could have determined that the claimant was a Convention refugee.

Accordingly, the Refugee Division determines that the claimant, XXXXX XXXX XXXX, is not a Convention refugee, and, pursuant to subsection 69.1(9.1) of the Immigration Act, finds that there was no credible basis for the claim.

               “M. Clive Joakim”           

     M. Clive Joakim            

                                                Concurred in by:

              “James C. Simeon”                       

    James C. Simeon             

DATED at Toronto, Ontario, this 4th day of  April, 2000.

            KEYWORDS - REFUGEE DIVISION - EXCLUSION CLAUSES - ART. 1F(b) - SERIOUS NON-POLITICAL CRIME - NEXUS - CREDIBLE BASIS - MALE - NEGATIVE - SOUTH KOREA