Docket: IMM-2333-16
Citation:
2017 FC 279
Ottawa, Ontario, March 15, 2017
PRESENT: The
Honourable Madam Justice Roussel
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BETWEEN:
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LIANA WAHJUDI
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DAVY TRISURJANA
LISTIANTO
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BENJAMIN
NICHOLAS KEEFE
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VINCE DAVE
CASEY
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Applicants
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And
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
The Applicants, Mrs. Liana Wahjudi, her husband
Mr. Davy Trisurjana Listianto, and their two (2) minor children are citizens of
Indonesia. They arrived in Canada in July 2015 and claimed refugee protection
one month later.
[2]
The Applicants claim to be Christians of Chinese
ethnicity. They allege having experienced many problems because of their
ethnicity and religion including institutional discrimination and being blamed
for accidents they did not cause. They also claim to fear heightened Islamic
extremism from the Islamic Defenders Front [FPI] group, should they return to
Indonesia. Finally, Mrs. Wahjudi further alleges fear of being sexually
assaulted as an ethnic Chinese woman.
[3]
In a decision dated December 16, 2015, the
Refugee Protection Division [RPD] rejected their claim, concluding that they
were neither “convention refugees” nor “persons in need of protection”. The RPD found that
the Applicants’ delay in seeking international protection made their
allegations of past persecution less credible. The RPD also found that while
there were tensions between the various religions in Indonesia, there was no
evidence that the Christians were systematically targeted or that the Applicants
had suffered any physical violence in the past. For these reasons, the RPD
found that the Applicants had failed to establish, in their personal
circumstances, a serious possibility of persecution on the ground of their Christian
religion. The RPD also found that Mrs. Wahjudi had not demonstrated a serious
possibility of persecution based on her gender.
[4]
The Applicants appealed this decision to the
Refugee Appeal Division [RAD] and argued that the RPD erred in its assessment
of their credibility and determination of past and future persecution. On May
12, 2016, the RAD dismissed the appeal and upheld the decision of the RPD.
[5]
The Applicants now seek judicial review of the
RAD’s decision. They argue that it was unreasonable for the RAD to uphold the
RPD’s negative credibility finding and secondly, that the RAD engaged in an
unreasonable assessment of the past and future persecution of the Applicants.
II.
Analysis
A.
Standard of review
[6]
The reasonableness standard of review applies
when this Court is reviewing a decision of the RAD (Canada (Citizenship and
Immigration) v Huruglica, 2016 FCA 93 at para 35 [Huruglica]). The
Court should not intervene if the RAD’s decision is justifiable, transparent
and intelligible and if it is within the range of possible, acceptable outcomes
which are defensible in respect of the facts and the law (Dunsmuir v New
Brunswick, 2008 SCC 9 at para 47 [Dunsmuir]).
[7]
Moreover, it is not the function of this Court upon
judicial review to substitute its own view of a preferable outcome and to reweigh
the evidence that was before the RAD and the RPD (Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at
paras 59, 61). The RAD’s decision “should be approached as an organic whole, without a line-by-line
treasure hunt for error” (Communications, Energy
and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013 SCC 34 at para 54; Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras 14, 16; Gong
v Canada (Citizenship and Immigration), 2017 FC 165 at para 7).
B.
Credibility
[8]
The Applicants submit that it was unreasonable
for the RAD to conclude that the RPD was right in doubting the credibility of Mrs.
Wahjudi because of two (2) statements she made during her testimony regarding
her fear of the FPI. They further submit that it was unreasonable for the RAD
to conclude that Mrs. Wahjudi did not know much about the FPI and to allow this
to impact the credibility of the Applicants’ allegations. The Applicants also
contend that it was unreasonable for the RAD to conclude that the Applicants’
travel activity demonstrated a lack of subjective fear.
[9]
While I agree that the RAD noted the RPD’s
concerns regarding Mrs. Wahjudi’s testimony with respect to why the Applicants
feared the FPI, the RAD’s decision to uphold the RPD’s finding is not based
solely on the contradiction raised in her testimony before the RPD.
[10]
The RPD found that Mrs. Wahjudi had difficulties
explaining why she feared persecution and that she was unclear on whether the
FPI would target the Applicants because of race or religion. Her answer to this
question changed from saying that religion did not matter to the FPI to, later
in the hearing, stating that the FPI targets Christians. The RPD found this to
be a clear contradiction that caused it to doubt her knowledge of the FPI.
[11]
In rejecting the Applicants’ argument that this
was a case of intersectional persecution where they were targeted because of
both their ethnicity and religion, the RAD found that the RPD’s credibility
concerns stemmed from Mrs. Wahjudi’s lack of knowledge of the FPI, not solely the
contradiction in her testimony. The RAD concluded that Mrs. Wahjudi’s lack of
knowledge resulted from the fact that the Applicants had not been targeted for
either their ethnicity or religion or personally witnessed such violence
against others in the past.
[12]
The RAD also noted the RPD’s finding that the
Applicants’ travel behavior prior to arriving in Canada demonstrated a lack of
subjective fear. In its decision, the RPD described that when asked about when
she first thought of leaving Indonesia definitively, Mrs. Wahjudi responded
that she had tried to leave in 1999 because of the events of 1998 in Jakarta,
although nothing had happened in her home city of Surabaya. She explained that
she was denied a Canadian visa in 2004. As her husband and children failed to
obtain visas from the United States of America, she did not apply for a visa
from there, or from any other country. She instead started a business in
Indonesia. She only applied for a visa to travel abroad in 2014. She further testified
before the RPD that she came to Canada in November 2014 to visit her adult son
studying in Canada because he could only get this “kind
of education” in Canada. After visiting him, she returned to Indonesia
in December. The rest of the family applied for visas only in April 2015, and
they all waited until July to flee their country. The RPD found that Mrs.
Wahjudi’s return to Indonesia and the delay of the family in leaving Indonesia
were contrary to their alleged subjective fear and negatively affected their
credibility as the Applicants did not act as if they truly feared persecution
or were in need of protection.
[13]
While the RAD reviews a decision of the RPD on a
standard of correctness, it may defer to the RPD’s credibility findings when
the RPD enjoys a particular advantage over the RAD, for instance when the RPD
hears and sees the witnesses (Huruglica at para 103). Given the
particular advantage enjoyed by the RPD, the RAD deferred to the RPD’s conclusions
regarding the credibility of the Applicants’ allegations and the absence of
subjective fear. The RAD also noted the specific allegations of discrimination
the Applicants referred to, for instance a corrupt officer who accused Mr.
Listianto of causing an accident and asked for a bribe, or the trouble and
disruption by Muslims that the church of Mr. Listianto’s brother faced, occurred
over a decade ago. However, the RAD found that the Applicants’ behaviour in
terms of their travel and visa activities did not show subjective fear such
that the RPD could accept their allegations that the situation faced by them
constituted “a level or risk or severity, even viewed
cumulatively, which would require the protection of Canada”.
[14]
Upon review of the RAD’s decision, I find that
its analysis and conclusion upholding the RPD’s credibility findings clearly
demonstrate the basis on which it reached its conclusions. As such, the RAD’s
finding is reasonable and there is no basis for this Court to intervene.
C.
Past and future persecution
[15]
The Applicants further submit that the RAD
engaged in an unreasonable assessment of the Applicants’ past and prospective
persecution, particularly in relation to its assessment of country conditions. In
its decision, the RAD twice stated that the Applicants had failed to provide
any specific documentation pertaining to FPI activities in Surabaya, East Java where
the Applicants lived. The Applicants argue that these findings are wrong given
that they had filed a document before the RPD that was directly about a FPI
attack in Surabaya entitled “Extremists attack a
peaceful Muslim-Christian conference in Surabaya”. They also rely on an article
by the International Religious Freedom Report for 2013 Indonesia, included in
the national documentation package for Indonesia, which stated that the two (2)
provinces most affected by religious violence were West Java and East Java.
Surabaya is the capital of East Java.
[16]
The RAD’s finding regarding the absence of
specific documentation related to the problems faced by ethnic Chinese and
Christians or FPI activities in Surabaya is indeed contrary to the evidence on
the record. Although this finding is not defensible on the record if considered
in isolation, I am nevertheless of the view that this error is not
determinative. While the RAD indicates on two (2) instances that there is no
specific documentation, it also stated on another occasion that there was “an absence of much, if any” specific documentary
evidence.
[17]
Moreover, the RAD noted that the city of Surabaya
is a city of more than six (6) million people in its metropolitan area and that
it is situated on the island of Java which itself has a population of close to
one hundred and fifty (150) million people. The RAD also acknowledged the
Applicants’ allegation that the FPI were growing “stronger
and stronger and holding more intense demonstrations” and that the
Applicants had identified many examples of discrimination and violence in the
reports they submitted. However, the RAD indicated that the documentation
referred to by the Applicants identified West Java as the area where most of
the problems occurred. The RAD reasonably found that the scarcity of specific
documentation on the problems faced by ethnic Chinese and Christians in
Surabaya was a credibility concern and that the Applicants had objectively been
little affected by the activity of the FPI.
[18]
The RAD also concluded that the RPD had provided
a balanced and effective review of the general risk faced by the Applicants as
Christians of Chinese ethnicity stemming from the activities of the FPI and
that the RPD did not err in its conclusions as to how the country conditions
applied to the specific circumstances of the Applicants. The RPD recognized that
there were tensions between the various religions in Indonesia, but nonetheless
found that there was no evidence that Christians are systematically targeted in
Indonesia and that the Applicants had suffered any physical violence in the
past despite these tensions having sometimes degenerated into violent attacks
against churches. The RPD concluded that the Applicants had not established, in
their personal circumstances, a serious possibility of persecution on the
ground of their religion.
[19]
Although the RAD made a finding regarding the
absence of evidence of FPI activities in Surabaya that is not supported by the
record, I find that its other conclusions are. Keeping in mind that the RAD’s
decision must be reviewed as an organic whole, I find that when viewed as a
whole, the decision is reasonable as it falls within the range of possible, acceptable
outcomes which are defensible in respect of the facts and the law (Dunsmuir at
para 47).
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