Date: 20080206
Docket: IMM-7-06
Citation: 2008
FC 152
Ottawa, Ontario,
February 6, 2008
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
AFENDY TJUHANDA (A.K.A.
TJUHANDA, AFENDY)
FRANSISCA HANAFI WANAJASA (A.K.A.
WANAJASA,
FRANSISCA HANAFI; WANAJASA, FRANSISCA
HANAF)
JOSHUA BRIAN TJUHANDA (A.K.A. TJUHANDA,
JOSHUA BRIAN)
DAVID MANUEL TJUHANDA (A.K.A. TJUHANDA,
DAVID MANUEL)
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Mr. Afendy
Tjuhanda, his wife Fransisca Hanafi Wanajasa and their son David Manuel
Tjuhanda (collectively the “Applicants”) seek judicial review of the decision
of the Immigration and
Refugee Board, Refugee Protection Division (the “Board”). In
its decision, dated December 14, 2005, the Board determined that the Applicants
are neither Convention refugees nor persons in need of protection pursuant to
section 96 and subsection 97(1), respectively of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27, as amended (the “Act”).
[2]
The
Principal Applicant and his wife are citizens of Indonesia and Christians of Chinese descent. Their
son David is also a citizen of Indonesia. Their son Joshua was born in
the United States
of America and
has the right to return to that country. No evidence was submitted to the Board
respecting fear of persecution against him in either the United States or Indonesia. The Principal Applicant is a minister
in a church of the Christian denomination. He, his wife and their son claimed
refugee status on the basis of their fear of persecution by Muslim extremists
in Indonesia.
[3]
The Board
found that the Applicants were credible but rejected their claim because it
found that an Internal Flight Alternative (“IFA”) was available in North Sulawesi.
It found that the Applicants do not face a serious possibility of persecution
in that region of Indonesia and that it is not
unreasonable for them to seek refuge there. The Board also found that the
Applicants are not at risk of losing their lives or being subjected to cruel
and unusual treatment, punishment or torture in Indonesia.
[4]
The first
matter to be addressed is the applicable standard of review, having regard to a
pragmatic and functional analysis. Four factors are to be considered: the
presence or absence of a privative clause; the expertise of the tribunal; the
purpose of the legislation and the nature of the question.
[5]
There is
no privative clause in the Act. No full right of appeal is provided but
judicial review is available, if leave is granted. Accordingly, the first
factor is neutral.
[6]
The Board
is a specialized tribunal and this favours deference to its decision. The broad
purpose of the Act is to regulate the admission of immigrants into Canada and to maintain the security
of Canadian society. This involves consideration of many interests that may be
in conflict with each other. Decisions made in a polycentric context tend to
attract judicial deference.
[7]
The final
factor is the nature of the question. The existence of an IFA is essentially a
question of fact. Upon balancing the four factors, I conclude that the
appropriate standard of review is patent unreasonableness since the Board was
required to assess the evidence with respect to a viable IFA.
[8]
In Rasaratnam
v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (F.C.A.)
the Federal Court of Appeal described an IFA as follows:
In my opinion, in finding the IFA, the
Board was required to be satisfied, on a balance of probabilities, that there
was no serious possibility of the appellant being persecuted in Colombo and
that, in all the circumstances including circumstances particular to him,
conditions in Colombo were such that it would not be unreasonable for the
appellant to seek refuge there.
[9]
In Rasaratnam,
the Court commented upon the requirement that the availability of an IFA be
raised in the hearing before the Board. The transcript of the proceedings
before the Board shows that this condition was met in this case.
[10]
Having
regard to the evidence that was submitted to the Board, in particular the evidence
of the adult Applicants about their work in Indonesia as Christian missionaries, a viable IFA
is available in North Sulawesi. The conclusions of the Board are not patently
unreasonable and there is no basis for judicial intervention.
[11]
In the
result, the application for judicial review is dismissed. There is no question
for certification arising.
JUDGMENT
The application for judicial review is
dismissed. There is no question for certification arising.
“E.
Heneghan”
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