Date: 20061122
Docket: IMM-516-06
Citation: 2006
FC 1416
Toronto, Ontario, November 22, 2006
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
PRIYANTO
TERISANATI ONGKOATMODJO
KENNY SETYANTO
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This application for judicial review involves
three applicants: Mr. Priyanto; his wife, Terisanati Ongkoatmodjo; and their
son, Kenny Septyanto. The adult applicants are citizens of Indonesia and the minor applicant is a
citizen of the United States of America. They are ethnic Chinese Christians and allege a fear of
persecution in Inodneisa on grounds of race, religion and membership in a
particular social group. Terisanati also claims to be a victim of domestic
abuse.
[2]
The Refugee Protection Division (RPD) of the
Immigration and Refugee Board dismissed the claims. Among other things, it
determined that the applicants were not credible.
[3]
No issue is taken with respect to the
determination in relation to the minor child. Mr. Priyanto and Terisanati
contend that the negative credibility findings of the RPD were patently
unreasonable. Additionally, they assert that the RPD erred: in failing to
apply IRB Guideline 4 “Women Refugee Claimants Fearing Gender-Related
Persecution” (the Gender Guidelines); in attributing little weight to the
psychologist’s report; in finding lack of subjective fear; in finding lack of
nexus; and in finding adequate state protection.
[4]
Credibility is the driving force behind the
negative decision. The credibility findings permeate the other
determinations. I have concluded that the credibility findings of the RPD were
open to it. Additionally, I have not been persuaded that the RPD erred, as
alleged, in its finding that the applicants did not have a well-founded fear of
persecution. Consequently, the application for judicial review will be
dismissed.
Background
[5]
Mr. Priyanto and Terisanati met in Philadelphia, United States of America, in
October of 2001. Kenny was born in Philadelphia on September 19, 2003. The family came to Canada in January of 2005.
[6]
Mr. Priyanto left Indonesia in August of 1999. He lived in Philadelphia from 1999 until January, 2005. While there, he made a claim for
refugee status but he left for Canada before his claim was determined. As an ethnic Chinese Christian in Indonesia, he claims to fear persecution
from the Muslim majority in his country.
[7]
Terisanati left Indonesia in December of 2000 and lived in Philadelphia and Buffalo. She claims, on the same grounds as
her husband, to fear persecution from native Indonesian men. However, the
primary focus of her claim stems from past domestic abuse inflicted by her
ex-husband. She fears persecution from him because he is jealous, possessive
and still wishes to be reunited with her. He is not aware that she has
remarried and has a child. She is afraid of what her ex-husband will do to her,
her husband, or her son in retaliation for leaving him and getting remarried.
The Decision
[8]
The RPD found that Terisanati was not credible
because, among other things, her testimony was inconsistent. There were
inconsistencies between her initial statements at the port of entry (POE) and
her personal information form (PIF) as well as between her PIF and her testimony
at the hearing. Significant allegations made during the hearing were not
contained in the PIF. In a similar vein, allegations contained in her PIF were
not part of her evidence at the POE interview. The RPD also identified a
number of allegations that it considered to be implausible or exaggerated.
[9]
With respect to Mr. Priyanto, the RPD noted
inconsistencies and omissions in his testimony. Material allegations made
during the hearing were omitted from the PIF. Additionally, statements in the
PIF were inconsistent with the testimony at the hearing.
[10]
The RPD concluded that there was not a serious
possibility that the applicants would face persecution if they returned to Indonesia. It also found that the
applicants did not have a well-founded fear of persecution. Further, adequate
state protection exists for the applicants in Indonesia should they choose to avail themselves of it.
The Standard of
Review
[11]
The applicable standard of review for
credibility issues and questions of fact is that of patent unreasonableness: Mugesera
v. Canada
(Minister of Citizenship and Immigration),
[2005] 2 S.C.R. 100; Augebor v. Canada (Minister of Employment and Immigration)
(1993), 160 N.R. 315 (F.C.A.); Harb v. Canada (Minister of Citizenship and
Immigration) (2003), N.R. 178 (F.C.A.). With respect to state protection,
I have previously adopted the pragmatic and functional analysis of my colleague
Madam Justice Tremblay-Lamer in Chaves v. Canada (Minister of Citizenship and Immigration) (2002), 45 Imm. L.R. (3d) 58. I agree with Justice Tremblay-Lamer
that the applicable standard of review in relation to a finding of state
protection is reasonableness.
Analysis
Credibility
[12]
The applicants have addressed and dissected
nearly all of the negative credibility and plausibility findings made by the
RPD. In the circumstances of this case, the caution expressed by Mr. Justice
Joyal in Miranda v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 81 (T.D.) is instructive and appropriate.
Justice Joyal stated as follows:
For purposes of judicial review,
however, it is my view that a Refugee Board decision must be interpreted as a
whole. One might approach it with a pathologist's scalpel, subject it to a
microscopic examination or perform a kind of semantic autopsy on particular
statements found in the decision. But mostly, in my view, the
decision must be analyzed in the context of the evidence itself. I
believe it is an effective way to decide if the conclusions reached were reasonable
or patently unreasonable.
[13]
Having considered the applicants’ submissions and having reviewed
the documentation in the record and the transcript of the hearing, I can
identify only one error on the part of the RPD. I agree with the applicants
that it was patently unreasonable for the RPD to rely on Mr. Priyanto’s failure
to mention the “Permuda Islam Jakarta” in his PIF when he clarified at the
hearing (tribunal record at p. 560) that the name simply refers to Muslim youth
in Jakarta and does not represent a particular organization or group. The RPD
ought to have addressed this explanation. Additionally, while it appears that
the RPD may have been over-reaching in relation to its finding of inconsistency
regarding the omission in Terisanati’s PIF that she received some level of
safety by marrying her ex-husband, I am unable to conclude that the RPD’s
reliance on this inconsistency was patently unreasonable. The statement in her
PIF could be interpreted in one of two ways. It is not for me to substitute my
opinion for that of the RPD in such circumstances.
[14]
The negative credibility determination does not turn on the one
error that I have identified. The RPD gave a multitude of reasons as to why it
did not find the applicants credible and no one single factor was determinative.
It was the totality of the evidence (which included the inconsistencies and
discrepancies) that led to the finding that the applicants were not credible.
[15]
Microscopic examination of individual segments of evidence will
undoubtedly yield the potential for alternative findings. However, that does
not render the findings made by the RPD patently unreasonable. Intervention is
not warranted when the RPD’s inferences and conclusions are reasonably open to
it on the record even if I might have decided the matter differently. With the
exception of the above-noted error, the findings of the RPD cannot be
characterized as patently unreasonable. The error does not impact on the
penultimate finding that the applicants are generally not credible. In short,
the error is not material to the result. Consequently, there is no basis upon
which I can, or should, intervene in the RPD’s determination.
The Gender Guidelines
[16]
The applicants submit that the RPD failed to mention the Gender
Guidelines and therefore the decision demonstrates insensitivity to issues
affecting abused women generally and to the particular issues affecting ethnic
Chinese women in Indonesia. The assertion is that the failure to apply the
Gender Guidelines led to the negative credibility finding and the various
implausibility findings, which are not so implausible if one examines the claim
from the perspective advocated by the Gender Guidelines. I disagree.
[17]
At the outset of its reasons, the RPD specifically identified the
nature of Terisanati’s claim. Upon counsel’s request, arrangements were made
that exhibited sensitivity to the gender issues raised in the Guidelines. The
RPD provided many reasons for finding Terisanati to be not credible and it
concluded that she generally lacked credibility. The Guidelines do not create
new grounds for finding a person to be a victim of persecution nor can they be
treated as corroborating any evidence of gender-based persecution so that the
giving of the evidence becomes proof of its truth: Newton v. Canada (Minister
of Citizenship and Immigration) (2000), 182 F.T.R. 294 (T.D.).
[18]
In the circumstances of this case, in view of the nature of the
claim and counsel’s conduct during the hearing, I am not persuaded that the RPD
erred simply because of a failure to mention the Gender Guidelines in its
reasons. In view of its various credibility findings (which do not necessarily
turn on Terisanati’s evidence in relation to gender-related issues), specific
reference to the Guidelines would not transcend the credibility problem and
would not have affected the overall assessment.
The Psychological Report
[19]
The RPD considered the psychological report and assigned it very
little weight. First, it determined that the report contained information that
was inconsistent with Terisanati’s evidence. The applicants disagree and
maintain that the language used by the psychologist was open to more than one
interpretation. Although I have some difficulty with the applicants’ proposed
interpretation, even if they are correct in this respect, it does not
demonstrate that it was unreasonable for the RPD to interpret the language in
the manner in which it did.
[20]
Second, the psychological diagnosis contained in the report was
based on facts provided to the psychologist by Terisanati. The RPD, as it is
required to do, assessed the credibility of Terisanati’s account of events in Indonesia
and it did not believe her testimony. Accordingly, it was entitled to assign
no weight to a report where the diagnosis was based on facts found not to have
been established.
[21]
The weighing of evidence is the function of the RPD and it
provided a cogent and unequivocal explanation for assigning no weight to the
psychological report. Its reasons in this respect are unassailable. The
applicants’ argument is without merit.
Lack of Subjective Fear
[22]
The applicants argue that the RPD erred in concluding that they
lacked a well-founded fear of persecution in Indonesia. They contend that the
RPD was mistaken in stating that Mr. Priyanto left the United States without
knowing what had happened in relation to his asylum claim. There was no such
mistake. Mr. Priyanto eventually did withdraw his claim. However, he did so
at the American embassy, after his arrival in Canada. When he left the United
States, he did not know its status.
[23]
Relying on Mendez v. Canada (Minister of Citizenship and
Immigration) 2005 FC 75, the applicants contend that it was not open to the
RPD to conclude that Terisanati’s failure to submit a claim in a safe third
country was determinative of a lack of subjective fear. Mendez stands
for the proposition that failure to claim in a safe third country should not be
the determinative factor in denying a claim. It is noteworthy that the RPD did
not accept Terisanati’s explanation for failing to seek asylum in the United
States. Moreover, the RPD cited many reasons for denying her claim. Failure
to claim in the United States was not the determinative factor – lack of
credibility was.
Lack of Nexus
[24]
The applicants maintain that there was voluminous documentary
evidence before the RPD describing how crimes against ethnic Chinese are
tolerated by government authorities. No authority is cited in support of the
submission that victims of crime constitute a group that satisfies the nexus
requirement for the Convention refugee definition. Indeed, the jurisprudence
is to the contrary. The applicants did not argue that the RPD’s section 97
analysis was in any way deficient. Given the credibility determinations, it is
unlikely that any such argument could succeed.
Adequate State Protection
[25]
The applicants’ quarrel regarding state protection relates to the
RPD’s failure to specifically refer to the documentation they submitted in
relation to the persecution of the Chinese minority and the fate of domestic
violence victims in Indonesia. The RPD stated that it had reviewed the
applicants’ evidence and described it as indicating “ongoing difficulties
between ethnic Chinese minority and the Muslim majority”.
[26]
The presumption of state protection delineated in Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689 in combination with
sections 96 and 97 of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (IRPA) require the applicants to establish that they are unwilling
or unable to avail themselves of the protection of the state in their country
of nationality.
[27]
The RPD noted that neither of the applicants had gone to the
police in Indonesia. It was in that context that it concluded that the
applicants’ failure to seek state protection was not reasonable and that they
had not established that state protection was not available to them.
[28]
Even if I were to accept that the RPD’s analysis on state
protection could have been more fulsome, the applicants’ claims could not
succeed. The credibility findings and the determination that the applicants
lack a well-founded fear of persecution (neither of which warrant intervention)
were fatal to the claims.
[29]
For the foregoing reasons, the application for judicial review
will be dismissed. Counsel did not suggest a question for certification and
none arises.
ORDER
THIS COURT ORDERS
THAT the application for judicial review is dismissed.
“Carolyn Layden-Stevenson”
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