Date: 20110217
Docket: IMM-3343-10
Citation: 2011 FC 191
Ottawa, Ontario, February 17, 2011
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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SRI SUNARTI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Overview
[1]
In
Mendivil v Canada (Secretary of State) (1994), 167
NR 91, 46 ACWS
(3d)
943, the Federal Court of Appeal was of the opinion that the issue was one of
state protection. The Immigration and Refugee Division of the Immigration and
Refugee Board (Board) found that the Applicant established a subjective fear,
but not an objective one. The Federal Court of Appeal found that the Applicant
was part of a particular social group: persons singled out and personally
targeted by terrorists. The Board, therefore, erred by failing to consider
whether the state was capable of arbitrarily protecting identified targeted
members of that social group (not individuals chosen at random):
[11] … members of a particular social group, might still have good
grounds for fearing persecution when a state is capable of protecting ordinary
citizens but incapable of protecting members of that particular social group…
[2]
In
addition, in Avila v Canada (Minister of
Citizenship and Immigration), 2006 FC 359, 295 FTR 35, the Court clearly
states:
[31] … the degree to which a state tolerates corruption in the
political or judicial apparatus correspondingly diminishes its degree of
democracy…
[3]
In
Zhuravlvev v Canada, [2000] 4 FC 3, 187 FTR
110 (TD), the Board rejected the refugee claim:
[33] …The CRDD's cursory analysis amounted to a
failure to consider relevant factors and justifies setting the decision aside and sending the matter
back for determination by a differently constituted panel. [Emphasis added].
II. Introduction
[4]
The
Board found the Applicant to be credible. Her fear stems from a terrorist group
in Indonesia. The
Applicant alleges that the police did not investigate the disappearance of a similarly
situated friend. The friend invited her to join “a prayer group” which, in
fact, was not what she had thought it was; she went in order to disassociate
herself from it. She fears reprisals by the extremist group if she approaches
the police as the police is known to be corrupt; yet, the Board found that the
Applicant’s fear of approaching the police is a subjective reluctance.
III. Judicial Procedure
[5]
This
is an application, pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA), for judicial review of a
decision of the Board, dated May 20, 2010, wherein the Applicant was
determined to be neither a “Convention refugee” nor a “person in need of
protection” within the meaning of section 96 and subsection 97(1) of the IRPA.
IV. Background
[6]
The
Applicant, Ms. Sri Sunarti, a citizen of Indonesia, fears
persecution from the Negra Islam Indonesia (NII). She was invited by her friend
Yunita to attend prayer meetings. The two were asked to give financial
contributions. Within a few months the group was addressed by a leader who
stated that they were all choosing to “fight” for Islam. Ms. Sunarti became
frightened; if she did not attend a meeting, members of the group would call
her at home and at work, insisting that she attend the next meeting and
attempted to send someone to meet her to bring her to meetings.
[7]
The
NII is an Indonesian terrorist group that fights for an Islamic state. One of
its off shoots was allegedly involved in the bombing of the Australian embassy
in Indonesia.
[8]
Ms.
Sunarti stated in her narrative:
11. I was so frightened
by this group and their fundamentalist ideas and behavior that I became
depressed and found it increasingly difficult to work. In March 2008, I had to
leave my job as office manager for Pt Atap Teduh Lestari due to the fear and
terrible anxiety I was experiencing.
(Applicant’s Affidavit at p 2).
[9]
Ms.
Sunarti was afraid to seek protection from the police. She explained that the
police is corrupt and she feared reprisals; the police did not investigate the
disappearance of her friend.
[10]
In
her Affidavit, Ms. Sunarti specified:
13. It was at the end of
April 2008, after Yunits disappeared, that I first noticed a man with a beard
and short trousers outside my house. Every day after that, a man, not always
the same man, was there watching my house. I therefore restricted [m]y comings
and goings and only left the house when no one was watching. I did not go to
the police, because the police in Indonesia
are corrupt and I was afraid that it would only make things worse.
V. Issue
[11]
In
light of the Supreme Court of Canada’s decision criteria in Canada (Attorney
General) v Ward, [1993] 2 S.C.R. 689, 41 ACWS (3d) 393, did the Board err in
law by failing to conduct a proper analysis of state protection?
VI. Standard of Review
[12]
The
Supreme Court established in Pushpanathan v Canada (Minister of
Citizenship and Immigration), [1998] 1 S.C.R. 982, 160 DLR (4th)
193, that the standard for issues involving error of law is that of correctness.
[13]
In
a recent decision, this Court, in Khanna v Canada (Minister of Citizenship
and Immigration), 2008 FC 335, 166 ACWS (3d) 362, referred to the
Supreme Court’s decision in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190,
establishing:
[4] The Supreme Court of Canada in Dunsmuir … has
brought much needed clarity to the question of standard of review. There are
only two standards, reasonableness and correctness. The standard of correctness
must be maintained in respect of jurisdictional and some other questions of
law. Reasonableness is a deferential standard to be applied where the question
is one of fact, discretion or policy and shall apply where the legal and
factual issues are intertwined and cannot readily be separated.
[14]
In Canadian
Council for Refugees v Canada, [2006] FC 1046, 299
FTR 114, Justice Roger Hughes states:
[20] …the standard for granting an Order permitting judicial
review is low. The matter at that point is to be dealt with in a summary way.
The standard on a leave application is whether or not a fairly arguable case is
disclosed (Bains v. Canada (M.E.I.) (1990), 47 Admin. L.R. 317).
[15]
State
protection is generally held to be a mixed question of fact and law.
VII. Analysis
[16]
Ms.
Sunarti’s identity was accepted. Her credibility was never in question, and,
thus, not at issue. The single issue raised by the Board is “state protection”.
[17]
The
Board was not satisfied by Ms. Sunarti’s explanation of why she did not
complain to the police. The Board did not consider the unwillingness of the
police to launch an investigation into Yunita’s disappearance.
[18]
In
its decision, the Board states:
[17] The panel is also of the
opinion that the applicant’s fear of the police and reprisals by the NII is a
subjective reluctance, not clear and convincing evidence of inadequate state
protection.
[19]
The
Board referred to the National Documentation Package on Indonesia, July 31,
2009: Tab (2.1) United States. February 25, 2009. Department of State. “Indonesia.” Country
Reports on Human Rights Practices for 2008. The Board characterizes Indonesia as a
“democratic state”, and that “the government generally respects the rights of
its citizens, even though some rights issues have been reported”. The Board
also stated that the police authorities continue to improve, “even though immunity
and corruption remain an issue in some areas, and that the polic[e] commonly
demand bribes” (Board’s decision at paras 12-13).
[20]
The
2008 Human Rights Report on Indonesia states:
The
government generally respected the human rights of its citizens and upheld
civil liberties. Nonetheless, there were problems during the year in the
following areas: killings by security forces; vigilantism; harsh prison
conditions; impunity for prison authorities and some other officials;
corruption in the judicial system; limitations on free speech; societal abuse
and discrimination against religious groups and interference with freedom of
religion, sometimes with the complicity of local officials; instances of
violence and sexual abuse against women and children; trafficking in persons;
child labor; and failure to enforce labor standards and worker rights.
…
b. Disappearance
The
government reported little progress in accounting for persons who disappeared
in previous years or in prosecuting those responsible for such disappearances.
The criminal code does not specifically criminalize disappearance.
On April 1
and 28, Komnas HAM resubmitted its 2006 report on the 1998 abductions of 12 to
14 prodemocracy activists to the AGO. Despite refusals from military personnel
to cooperate in the investigation, Komnas HAM concluded that all victims still
missing were dead and identified suspects for an official investigation without
publicly releasing their names. During 2006-07 the AGO took no action, stating
that it could not prosecute these crimes unless the House of Representatives
(DPR) declared them gross human rights violations. In October a special
committee of the DPR began conducting hearings into the matter.
…
d. Arbitrary
Arrest or Detention
…
…However,
impunity and corruption remained problems in some areas. Police commonly
extracted bribes ranging from minor payoffs in traffic cases to large bribes in
criminal investigations.
e. Denial
of Fair Public Trial
The law
provides for judicial independence; however, in practice the judiciary remained
susceptible to influence from outside parties, including business interests,
politicians, and the military. Low salaries continued to encourage acceptance
of bribes, and judges were subject to pressure from government authorities,
which appeared to influence the outcome of cases.
…
Widespread
corruption throughout the legal system continued. Bribes and extortion
influenced prosecution, conviction, and sentencing in civil and criminal cases.
In 2007 the National Ombudsman Commission reported receiving 218 complaints of
judicial corruption involving judges, clerks, and lawyers. Key individuals in
the justice system were accused of accepting bribes and of turning a blind eye
to other government offices suspected of corruption. Legal aid organizations
reported that cases often moved very slowly unless a bribe was paid. With
the Judicial Commission stripped of its powers, responsibility for judicial
supervision rests with the Supreme Court. [Emphasis added].
[21]
The
Court is in full agreement with the Applicant in that the Board appears remiss
as to the following:
a. Whether the
failure of the police to investigate the disappearance of a similarly situated
person (Yunita), would constitute proof of inadequate state protection;
b. Failure to consider
whether the Applicant’s fear of persecution at the hands of a terrorist group
constituted her as a particular social group which the state was unable or
unwilling to protect;
c. Failure to
consider whether the evidence of state corruption could establish that the
state is unwilling to protect the Applicant;
d. Any one of
the above appears to demonstrate that the decision was not reasonable.
[22]
Was
it not objectively reasonable for Ms. Sunarti to be unwilling to complain
against a “terrorist group” when the documentary evidence indicates that the
Indonesian police are notoriously corrupt and not investigating incidents of
intimidation, violence and disappearance?
[23]
The
Board failed to consider the questions; thus, the principles established by the
Supreme Court in Ward, above, as well as subsequent decisions by this
Court were ignored. The Board erred in fact and in law by requiring an unfair
burden of proof and by engaging in speculation that the police was able or
willing to protect.
[24]
The
Supreme Court of Canada in Ward, above, specified:
…Moreover, it would seem to
defeat the purpose of international protection if a claimant would be required
to risk his or her life seeking ineffective protection of a state, merely to
demonstrate that ineffectiveness.
Like Hathaway,
I prefer to formulate this aspect of the test for fear of persecution as
follows: only in situations in which state protection "might reasonably
have been forthcoming", will the claimant's failure to approach the state
for protection defeat his claim. Put another way, the claimant will not meet
the definition of "Convention refugee" where it is objectively
unreasonable for the claimant not to have sought the protection of his home
authorities; otherwise, the claimant need not literally approach the state.
The
issue that arises, then, is how, in a practical sense, a claimant makes proof
of a state's inability to protect its nationals as well as the reasonable
nature of the claimant's refusal actually to seek out this protection. On the
facts of this case, proof on this point was unnecessary, as representatives of
the state authorities conceded their inability to protect Ward. Where such an
admission is not available, however, clear and convincing confirmation of a
state's inability to protect must be provided. For example, a claimant might
advance testimony of similarly situated individuals let down by the state
protection arrangement or the claimant's testimony of past personal incidents
in which state protection did not materialize…
[25]
In
Mendivil, above, the Federal Court of Appeal was of the opinion that the
issue was one of state protection. The Board found that Ms. Sunarti established
a subjective fear, but not an objective one. The Federal Court of Appeal
found that the Applicant was part of a particular social group: persons singled
out and personally targeted by terrorists. The Board, therefore, erred by
failing to consider whether the state was capable of arbitrarily protecting
identified targeted members of that social group (not individuals chosen at
random):
[11] … members of a particular
social group, might still have good grounds for fearing persecution when a
state is capable of protecting ordinary citizens but incapable of protecting
members of that particular social group…
[26]
The
Federal Court of Appeal also quoted from both Canada (Minister of Employment
and Immigration) v Villafranca (1992), 150 NR 232, 37 ACWS (3d) 1259 and
Ward, above, noting that protection against terrorism is difficult, and
that the state’s inability to protect is an integral component of a
well-founded fear.
[27]
This
Court echoed Mendivil in Badran v Canada (Minister of
Citizenship and Immigration) (1996), 111 FTR 211, [1996] FCJ No 437
(QL/Lexis). The applicant feared attacks from terrorists in Egypt. The
evidence showed that Egypt was a stable country making serious
efforts to protect its citizens. The Court found:
[16] …past personal incidents may qualify an individual as a
member of a particular social group which the state is unable to protect…
[28]
In
addition, in Avila, above, the Court clearly states:
[31] … the degree to which a
state tolerates corruption in the political or judicial apparatus
correspondingly diminishes its degree of democracy…
[29]
In
Zhuravlvev, above, the Board rejected the refugee claim:
[33] …The CRDD's cursory analysis
amounted to a failure to consider relevant factors and justifies setting the
decision aside and sending the matter back for determination by a differently
constituted panel. [Emphasis added].
VIII. Conclusion
[30]
For
all of the above reasons, the Board’s decision is unreasonable. The Applicant’s
application for judicial review is granted and the matter is remitted for
redetermination by a differently constituted panel.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review be granted and
the matter be remitted for redetermination by a differently constituted panel.
No question for certification.
“Michel M.J. Shore”
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