Date: 20101125
Docket: IMM-115-10
Citation: 2010 FC 1164
Ottawa, Ontario, this 25th
day of November 2010
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
MARIANA SURYANTI
KEVIN KAO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review of the decision of Refugee Protection
Division Member Normand Leduc of the Immigration and Refugee Board (the
“Board”), pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27, (the “Act”) by Mariana Suryanti (the
“applicant”).
[2]
The applicant
applied for refugee status under sections 96 and 97 of the Act, claiming that
she had a well-founded fear of persecution in her home country of Indonesia, and that if she
returned she would be subjected to a risk to her life or to cruel and unusual
punishment because she is a Christian of Chinese origin. The Board found the applicant
did not face a “risk of return”, nor would she be subject to discrimination
amounting to persecution if she was to go back to her home country, and
therefore she did not qualify as a Convention refugee or a person in need of
protection. The Board also rendered a negative decision regarding the refugee
status of the applicant’s son, Kevin Kao, which is not under review here.
* * * * * * * *
[3]
The applicant
is a 33-year-old Christian woman of Chinese origin and a citizen of Indonesia. It is because of
experiences related to her ethnic and religious background that she decided to
leave her home country at the age of 18. She claimed that she lived in a state
of tension in Indonesia, having been robbed by
individuals of Indonesian origin while she was travelling on public transit,
and having once been fondled on the street. When she went to the police for
help, she was simply asked for money. The applicant also stated that a person
of Indonesian origin once threw a rock through the window of the church that
she attended, and that she was reluctant to walk around openly with a Bible for
fear of provoking the anger of certain Muslims. In addition, she was subject to
rude and derogatory comments on the street because of her Chinese origin. The applicant
claimed that because of the discrimination in Indonesia against those of Chinese origin, as well
as against Christians, she was in constant fear of being attacked at her church
or home.
[4]
In
1998, the applicant left Indonesia for the United States, where she lived
without status and where she also gave birth to her son. On March 22, 2008, she
illegally crossed the border into Canada and subsequently made her claim for refugee
status on April 7, 2008. Her son arrived legally in Canada with friends of the applicant
on March 17, 2008.
[5]
The applicant
and her son attended their refugee hearing in Montreal on October 26, 2009. On November 20, 2009,
the Board rendered its decision, finding that the applicant and her son were
not Convention refugees or persons in need of protection.
* * * * * * * *
[6]
The Board
found that while the applicant’s testimony was “sober and unexaggerated”, her
experiences in her home country were isolated incidents that did not amount to
persecution or demonstrate a “risk of return”. In addition, the Board noted
that the applicant’s sister, also a Christian of Chinese origin, continued to
live in Indonesia with no problems.
[7]
The Board
also cited the country condition evidence that had been filed regarding the
general situation of Chinese and Christians in Indonesia. While it recognized that there was
evidence of attacks and discrimination against “certain minorities” in the
country, there were also indications that this type of behaviour towards those
of Chinese origin had been on the decline in 2008 and that the government
“generally respected” freedom of religion.
[8]
Overall,
the Board was not convinced that if the applicant were to return to Indonesia her life would be at
risk, nor that there was a risk that she would be subjected to cruel and
unusual punishment or torture. In addition, it did not find that the
discrimination she may be subject to in Indonesia would amount to persecution.
* * * * * * * *
[9]
The
applicant raises a number of issues in her submissions that can be distilled
into the following:
a.
Did the Board err by
failing to provide adequate reasons for its decision?
b.
Did the Board fail to
take into account the totality of the evidence when rendering its decision?
c.
Did the Board err in
law by applying the section 97 “risk of return” test to its evaluation of the applicant’s
status as a section 96 Convention refugee?
[10]
A
claim that a decision-maker failed to give adequate reasons in his or her
decision is a question of procedural fairness that should be reviewed on the
standard of correctness (Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, at
paragraph 50; Andryanov v. Minister of Citizenship and Immigration, 2007
FC 186, at paragraph 15).
[11]
The
question as to whether a decision-maker erred in its treatment of the evidence
should be reviewed on the standard of reasonableness (Dunsmuir, supra,
at paragraphs 51 and 53; Cabrera v. Minister of Citizenship and Immigration,
2010 FC 709, at paragraph 21).
[12]
Finally,
whether the Board applied the correct legal test in determining the applicant’s
status as a Convention refugee is a question of law that must be reviewed on
the standard of correctness (Dunsmuir, above, at paragraphs 55 and 60).
* * * * * * * *
A. Did the
Board err in law by failing to provide adequate reasons for its decision?
[13]
The applicant
claims that the Board failed to adequately explain how it came to the
conclusion that the discrimination to which the applicant may be subject if she
returns to Indonesia would not amount to
persecution. In addition, the applicant claims that the Board did not turn its
mind to the total effects of the discriminatory acts, and whether they could
constitute persecution on cumulative grounds. Specifically, by finding that the
applicant’s experiences amounted to “isolated incidents”, the Board demonstrated
a lack of sensitivity to the cumulative impact of each incident and the general
atmosphere of insecurity for Chinese Indonesians.
[14]
Reasons
must be sufficient for a party to know why a claim is rejected and must reflect
consideration of the main relevant factors (Townsend v. Minister of
Citizenship and Immigration, 2003 FCT 371, at paragraph 22; VIA Rail
Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25 (C.A.)).
[15]
In
rejecting a claim for refugee status under section 96, a Board is obliged to
find that there is no serious possibility that the applicant will face
persecution either subjectively or objectively. The Federal Court of Appeal
attempted to define persecution in Rajudeen v. Minister of Employment and
Immigration, [1984] F.C.J. No. 601 (QL), 55 N.R. 129:
The
first question to be answered is whether the applicant had a fear of
persecution. The definition of Convention Refugee in the Immigration Act
does not include a definition of “persecution”. Accordingly, ordinary
dictionary definitions may be considered. The Living Webster Encyclopedic
Dictionary defines “persecute” as:
“To
harass or afflict with repeated acts of cruelty or annoyance; to afflict
persistently, to afflict or punish because of particular opinions or adherence
to a particular creed or mode of worship.”
The
Shorter Oxford English Dictionary
contains inter alia, the following definitions of “persecution”:
“A
particular course or period of systematic infliction of punishment directed
against those holding a particular (religious belief); persistent injury or annoyance
from any source.”
[16]
It
is the Board’s lack of consideration of the factors relating to the possible
existence of objective persecution in Indonesia against Chinese and Christians that is the most
troubling. In its short reasons, the Board cites “incidents of attacks or
discrimination against certain minorities” over the past few years before
stating that the discrimination to which the applicant may be subject would not
amount to persecution. Recognizing that discrimination exists in a country and
then stating that it does not amount to objective persecution is allowable, but
only if the decision-maker gives some explanation as to why.
[17]
The applicant
cites the recent Federal Court decisions of Junusmin v. Minister of
Citizenship and Immigration, 2009 FC 673, and Limarto v. Minister of
Citizenship and Immigration, 2009 FC 521. Both of these decisions discuss
at length the situation in Indonesia as it pertains to Chinese Christians, and the cumulative
effects of discrimination on that population. While the fact patterns of the
claimants are very different to the one at bar, and thus should be treated
carefully, the principle that they articulate is still sound: while Boards are
not required to cite every piece of information in their decisions, significant
evidence in the country condition documents that directly contradicts a Board’s
finding must be addressed (Junusmin, at paragraph 38; Limarto, at
paragraph 23).
[18]
In
the case at bar, the country condition documents point to continuing problems
for Chinese Indonesians. A March 2006 Response to Information Request states
that although the situation of ethnic Chinese in Indonesia has improved since
the fall of the Suharto regime in 1998, and there were no reports of attacks
against the group between January 2004 and March 2006, they remain “legally and
socially vulnerable” (IDN101030.E., 28 March 2006, Response to Information
Request Report (2004-2006)). According to the same report, post-1998 reforms
have been “insufficient to deliver freedom from institutionalized
discrimination for the ethnic Chinese in Indonesia” who continue to have difficulty obtaining
identity documents such as birth and marriage certificates. Additionally, the Board
was also presented with numerous articles that described the firebombing of
churches by Muslim extremists, the beheading of Christian schoolgirls, and
congregations being forced to close their churches out of fear, all pointing to
a severe lack of religious tolerance in Indonesia. The Board only made passing
reference to this information before declaring it not to be persecutory in
nature.
[19]
Given
the systemic discrimination against both those of Chinese origin and Christians
in Indonesia over the past decade, I
find that the Board was required to delve further into the evidence to give
reasons why it did not find the state of discrimination towards members of those
minority groups, including the applicant, to amount to persecution. This is not
to say that such a finding would be unreasonable, simply that the Board was
required to take the reader through its train of logic in a more meaningful
way.
[20]
As a
result, I do not find that the Board gave adequate reasons in its decision.
B. Did
the Board fail to take into account the totality of the evidence when rendering
its decision?
[21]
The applicant
claims that the Board failed to take into account any of the evidence in the
Refugee Protection Division’s binder that points to a “compelling pattern” of
persecution against Chinese Christians in Indonesia. In addition, she claims that the Board did not
take into account the “abundant evidence” which contradicts its findings.
[22]
For
the reasons cited above, I find that the Board did indeed fail to take into
account the totality of the evidence before it. As was stated in Cepeda-Gutierrez
et al. v. Canada (Minister of
Citizenship and Immigration), 157 F.T.R. 35 at paragraph 17, a decision-maker’s
burden of explanation increases with the relevance of the evidence in question
to the disputed facts. While it specifically cited attacks and discrimination
against minorities in Indonesia, including the 1998
riots against the Chinese, the Board did so in a perfunctory fashion, without
evaluating the information in a critical manner. The Board additionally failed
to take into consideration the cumulative effects of years of discrimination in
Indonesia against both Christians
and Chinese, of which there was much evidence before it. While it is not up to
this Court to re-weigh the evidence that was in front of the Board (Dunsmuir,
above, at paragraph 47), it does not appear from its decision that it weighed
much of the evidence at all.
[23]
Thus,
the Board failed to give adequate reasons for its decision and also did not
seem to take into account the totality of the evidence before it. This is
sufficient to allow this judicial review application without having to deal
with the issue concerning the test applied by the Board for section 96 of the
Act.
* * * * * * * *
[24]
Consequently,
the judicial review application is allowed and the matter is sent back to a
differently constituted Board for reconsideration.
[25]
No
question is certified.
JUDGMENT
The application for judicial
review is allowed. The decision of the Refugee Protection Division of the
Immigration and Refugee Board (the “Board”) dated November 20, 2009 is set
aside and the matter is sent back to a differently constituted Board for
reconsideration.
“Yvon
Pinard”
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