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Federal Court
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Cour fédérale
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Date: 20090520
Docket: IMM-4865-08
Citation: 2009 FC 521
Ottawa, Ontario, May 20,
2009
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
HARDJO LIMARTO and
PIT HA THEN
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision by the Refugee Protection
Division of the Immigration and Refugee Board (the Board), which determined the
applicants were neither Convention refugees nor persons in need of protection.
The Board rejected the applicants’ claim noting that the discrimination they
suffered did not amount to persecution or to torture or to a risk to their life
or a risk of cruel and unusual treatment or punishment within the meaning of
sections 96 and 97 of the Immigration and Refugee Protection Act, S.C.
2001, c.27 (the Act).
[2]
Hardjo
Limarto (the principal applicant) and his spouse, Pit Ha Then (the second
applicant) are citizens of Indonesia and of Chinese origin.
They claim to have a well-founded fear of persecution on the basis of their
race, political opinion and membership in a particular social group. The
applicants claim to have been subject to victimization in Indonesia by the
Muslim majority since they were children.
[3]
The
principal applicant suffered a stabbing in 1978 by a group of Muslim men. Although
the incident was reported to the police, no action was taken. In 1990, the
second applicant was raped by a Muslim man posing as a client in her hair
salon. Her salon was frequently targeted for extortion by local Muslim thugs
and she was threatened at knife point for refusing on several occasions to
accede to demands for the provision of services without payment.
[4]
During
the riots that swept Indonesia in 1998, the couple
lived in fear. During this period, their home was damaged and many other
members of the Chinese minority suffered the loss of their homes and businesses
to fire.
[5]
As
a result of the targeting they experienced, the applicants attempted to leave Indonesia as early as
1990. In 2006, they were successful in obtaining visitors’ visa to Canada and made a
claim for refugee protection on May 23, 2006.
[6]
In
its decision, dated September 22, 2008, the Board found that the documentary
evidence supported the existence of discrimination against the Chinese minority
in Indonesia, but
concluded that there is no indication that this discrimination amounts to
persecution as defined in the Act. In support, the Board cited the following
passage of the U.S. Department of State, Country Report of Human
Rights Practice for 2004, according to which:
… Ethnic Chinese accounted for
approximately 3 percent of the population, by far the largest nonindigenous
minority group, and played a major role in the economy. Instances of
discrimination and harassment of ethnic Chinese Indonesians declined compared
with previous years. On April 14, then President Megawati publicly called on
Immigration officials to stop asking ethnic Chinese citizens for a Republic of
Indonesia Citizenship Certificate (SBKRI), a document not required of
non-Chinese citizens; however, many ethnic Chinese citizens reported they were
still frequently asked to show one. An attorney advocate for the rights of
ethnic Chinese stated that more than 60 articles of law, regulation, or decree
were in effect that discriminated against ethnic Chinese citizens. NGOs such
as the Indonesia Anti-Discrimination Movement urged the Government to revoke
these articles.
[7]
With
respect to the applicants’ section 97 claim, the Board was not satisfied that,
based on their narrative and testimony, they would face a risk of persecution
or a risk to life within the meaning of the Act were they to return to Indonesia.
[8]
In
particular, the Board characterised the acts against the second applicant and
her hair salon as “acts of extortion directed against the business community in
general and not against the claimants by reason of their ethnic origin per
se”. Moreover, the Board found that the riots of May 1998 were violent
acts of a “general nature” not targeted at the ethnic Chinese minority.
[9]
The
applicants argue that the Board’s reasons are inadequate because they include
no analysis of the distinction between “mere” discrimination and persecution.
This, they claim, leaves the applicants uncertain as to why their experience in
Indonesia does not
bring them within section 96 of the Act. This, it is asserted, amounts to
breach of procedural fairness.
[10]
It
is also alleged that the Board’s reliance on the U.S. Department of State, Country
Report of Human Rights Practice for 2004 was unduly “selective” and is
completely without context. The applicants highlight other evidence in the
record evincing the cyclical nature of the targeting of the Chinese minority in
Indonesia, as well as
their continuing status as a socially vulnerable group living in a situation of
institutionalized discrimination.
[11]
Furthermore,
the applicants also contest the Board’s finding that the 1998 riots were of a
“general nature and not directly [sic] solely against the ethnic Chinese
minority”. This description is, in their view, perverse and capricious in
light of evidence in the record describing that same event as one that
especially targeted ethnic Chinese, and according to which “an uncertain number
of Chinese were murdered, numerous Chinese women were raped, and Chinese homes
and businesses were burned”. It is also pointed out that the Board makes no
reference to the second applicant’s allegation of rape at the hands of Muslim
man.
[12]
The
applicants further challenge the Board’s characterization of what it describes
as a “protection racket” targeting the second applicant’s hair salon, given
documentary evidence describing the Indonesian government’s frequent failure
“to protect shopkeepers, many of them Chinese Indonesians, who experienced
extortion by extremists”.
[13]
Finally,
the applicants attack the Board’s conclusion that they experienced no
personalized discrimination between 1998 and 2006. The applicants point to
evidence in the record disclosing that they were victimized on several
occasions, as noted above. In any event, they argue that the law does not
require a refugee claimant to demonstrate that he or she was directly subject
to acts of persecution or attacks on his or her life as a pre-condition to
qualifying for protection.
[14]
Thus,
the applicants raise the following issues:
1.
Did the
Board provide adequate reasons for its conclusion that the discrimination faced
by the applicants did not amount to persecution?
2.
Did the
Board make capricious and perverse findings of fact in its reliance on
selective documentary evidence in support of its decision?
3.
Did the
Board make capricious and perverse findings of fact in its characterization and
weight given to incidents suffered by the applicants as stated in their
personal allegations as well as set out in the documentary evidence concerning
members of the Chinese minority?
4.
Did the
Board err in fact and in law in drawing inferences from the absence of specific
incidents against the applicants from 1998 to 2006 and the impact of the 1998
riots regarding their motivation for leaving Indonesia?
[15]
The
applicants urge this Court to find that the Board committed an error in failing
to provide sufficient reasons for its conclusion that they faced “mere”
discrimination rather than persecution, as members of Indonesia’s Chinese
minority. Adequacy of reasons is a component of the duty of fairness; this
issue will therefore by reviewed on a standard of correctness (Keqaj v. Canada (Minister
of Citizenship and Immigration), [2008] F.C.J. No.
495 (QL),
2008 FC 388, at para. 27).
[16]
One
has the sense from the opening paragraphs of the decision that the Board did
not view the facts underlying the applicants’ claims as particularly
plentiful. The Board writes:
The male claimant summarized the reasons
for his claim for refugee protection in the first paragraph of his narrative as
follows:
(…) I am of Chinese origin and I have
asked for Canada’s protection because of my
race and the victimization that I have endured at the hands of the Muslim
majority and the victimization that I fear to suffer in the future.
[17]
According
to the Board, “That is, in essence, the account of the facts that led the
claimants to leave their country and to claim protection in Canada”.
[18]
It
is true that the applicants’ narratives are not elaborate. They relate their
experience of feeling singled out, of struggling against stigmatisation and
discrimination in Indonesia from their childhood. No specific incidents
are described post-1998, when riots broke out in different parts of the
country, although there is reference to recurring incidents of extortion of the
second applicant’s business.
[19]
It
is also true that the documentary evidence before the Board was quite
extensive. Several reports describe the treatment of ethnic Chinese in Indonesia. For
instance, one source indicates:
On May 12, 1998, six students died at Jakarta in street protests,
triggering a wave of looting, burning, raping and other violence directed
largely by the urban poor against ethnic Chinese, who had long been prominent
in Indonesia business and whom many
Indonesians blamed for the country’s economic plight. Nearly 1,200 deaths
occurred May 12-15, with thousands of businesses and building in Jakarta destroyed.
(Political Handbook of the
World : 2000-2002.”Indonesia.” p. 500. A. Banks, T.C. Muller, W.R.
Overstreet, eds., Washington, DC: CQ Press.)
[20]
Notably,
the documentary evidence by and large describes incidents concentrated in the
1990s and in the early 2000s. A Response to Information Request includes this
statement:
In 2001, the Associated Press (AP)
reported that “after generations of often violent discrimination, new laws have
helped peel away old hatred and many of Indonesia’s 7 million ethic Chinese
citizens are now quietly optimistic about the future” (28 Aug. 2001).
Although, for example, the United States Department of State reported that in
2002 “there were instances of discrimination and harassment” of ethnic Chinese
in Indonesia (Country Reports 31 Mar. 2003, Sec. 5c), Freedom in the
World 2003 reported that the extent of the violence was “far less than in
the late 1990s, when violent attacks killed hundreds and destroyed many
Chinese-owned shops and churches” (Freedom House 2003). However, violence against
Christians and ethnic Chinese on the central island of Java has been rising since 2000 (New York
Post 15 Oct. 2002).
(IDN42199.E.9 December 2003.
Situation of ethnic Chinese, Christians in Indonesia
(2001-2003) Research Directorate,
Immigration and Refugee Board, Ottawa.
(Response to Information
Request (December 9, 2003)
[21]
Discrimination
in itself does not amount in every case to persecution. It may, however, if it
manifests as “sustained or systemic violation of basic human rights
demonstrative of a failure of state protection” (Hathaway, James C. The
Law of Refugee Status. Toronto: Butterworths, 1991, pp.104-105 as cited in Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689 at
para. 63). The Board makes no attempt to investigate this distinction.
At paragraph 13 of its reasons, the Board writes:
The panel notes that, according to the
documentary evidence, there is discrimination against the Chinese minority in Indonesia, but finds no indication
anywhere that his minority is persecuted as defined in the Act.
[22]
The
UNHCR Handbook provides the following guidance on when discrimination may
constitute persecution:
53. In
addition, an applicant may have been subjected to various measures not in
themselves amounting to persecution (e.g. discrimination in different forms),
in some cases combined with other adverse factors (e.g. general atmosphere of
insecurity in the country of origin). In such situations, the various elements
involved may, if taken together, produce an effect on the mind of the applicant
that can reasonably justify a claim to well-founded fear of persecution on
“cumulative grounds”. Needless to say, it is not possible to lay down a
general rule as to what cumulative reasons can give rise to a valid claim to
refugee status. This will necessarily depend on all the circumstances,
including the particular geographical, historical and ethnological context.
54.
Differences in the treatment of various groups do indeed exist to a greater or
lesser extent in many societies. Persons who receive less favourable treatment
as a result of such differences are not necessarily victims of persecution. It
is only in certain circumstances that discrimination will amount to
persecution. This would be so if measures of discrimination lead to
consequences of a substantially prejudicial nature for the person concerned,
e.g. serious restrictions on his right to earn his livelihood, his right to
practise his religion, or his access to normally available educational
facilities.
55. Where
measures of discrimination are, in themselves, not of a serious character, they
may nevertheless give rise to a reasonable fear of persecution if they produce,
in the mind of the person concerned, a feeling of apprehension and insecurity
as regards his future existence. Whether or not such measures of
discrimination in themselves amount to persecution must be determined in the
light of all the circumstances. A claim to fear of persecution will of course
be stronger where a person has been the victim of a number of discriminatory
measures of this type and where there is thus a cumulative element involved.
[My emphasis.]
[23]
In
my view, the Board was not sensitive to the “cumulative effect” of the
applicants’ past experiences of discrimination in Indonesia (Canagasuriam v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1487 (F.C.T.D.) (QL), 2
Imm. L.R. (3d) 84,
at paras. 6-8). There is, for instance, no reference made to the
second applicant’s allegation of racially-motivated rape. Nor does the Board’s
decision demonstrate sensitivity to the long history of institutionalized
discrimination endured by ethnic Chinese, a context that is amply described in
the documentary evidence.
[24]
The
Board acknowledged the riots of 1998, but found that “these riots and the acts of
violence that were committed were of a general nature and not directly [sic]
solely against the ethnic Chinese minority”. This assessment flies in the face
of the documentary evidence which leaves no doubt that, although the riots were
spurred by broader political and economic considerations, their effects were
heavily and devastatingly felt by the country’s ethnic Chinese population. One
source explains that “the Chinese community was ‘blamed unjustly for the
collapse of the economy’ in 1997, all of which made them ‘an easy target’ for
the violence, which broke out with the currency crisis” (Response to Information Request (December 9,
2003)).
Indeed, the evidence suggests that “the ethnic Chinese of course are a
perennial target any time social unrest breaks out” (Response to
Information Request (December 9, 2003)).
[25]
More
recent evidence pointed to by the applicants comes from a Response to
Information Request from March 2006 indicating that although the situation of
ethnic Chinese in Indonesia is much improved and there were no reports of
attacks against them between January 2004 and March 2006, they remain “legally
and socially vulnerable” (IDN101030.E. 28 March 2006. Indonesia: Reports of
attacks against ethnic Chinese, Christians and non-Christians alike; state
protection available (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, for
instance, continue to have difficulty obtaining identity documents such as
birth and marriage certificates. These statements were not referred to by the
Board.
[26]
I
am not, therefore, satisfied that the Board dealt adequately with the central
issue of the claim: namely, whether the applicants had a well-founded fear of
persecution. Completely absent is any discussion of the cumulative effect of
their experiences in Indonesia, whose veracity was not
challenged. The Board’s consideration of this issue was cursory, at best, and
in my view warrants the intervention of this Court.
[27]
As
to the remaining issues, they relate to the Board’s treatment of factual
evidence in the record. The deficiencies referred to above in the Board’s
reasons are similarly reflected in its perfunctory handling of the documentary
evidence. The Board failed to take into account the abundant evidence of
historical exclusion faced by ethnic Chinese in Indonesia, which
provided a critical context for the examination of the incidents described in
the applicants’ narrative.
[28]
For
these reasons, I would grant the application for judicial review and remit the
matter for re-determination by a differently constituted Board. Both counsel
agree that this case does not raise a question of general importance.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application be allowed and that the matter be returned to the Board for
redetemination by a different member. No question is certified.
“Luc
Martineau”
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