Date: 20061013
Docket: IMM-7487-05
Citation: 2006 FC 1217
OTTAWA, Ontario, October 13, 2006
PRESENT: The Honourable Paul U.C. Rouleau
BETWEEN:
DAMIANUS
SJAFEI THAMRIN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (Refugee Division).
[2]
The
applicant, Damianus Sjafei Thamrin, is a citizen of Indonesia. He is a
Christian and of Chinese ethnicity. He claims that he has a fear of persecution
from Muslims who target him because of his religion and ethnic background.
[3]
In
its decision dated December 1, 2005, the Refugee Division rejected the
applicant’s Convention refugee claim on the basis that he did not establish by
clear and convincing proof that state protection was not available in
Indonesia; further they found that there was an internal flight alternative.
[4]
The
Refugee Division found that the applicant did not establish by clear and
convincing proof that there was no state protection available to the claimant.
It based this finding on two factors; the first factor being that the applicant
did not attempt to seek the help of the police. The Refugee Division rejected the
applicant’s allegation that he did not seek help of police because it was
useless and it was necessary to bribe them.
[5]
The
Refugee Division cited a 2003 United States Department of State Report that
indicates that the Indonesian police do make arrests of Muslims and attempt to
protect its citizens. The applicant claims that the Refugee Division cited one
of the Report’s findings, but ignored other applicable findings of corruption
and inefficiency in the Indonesian police force.
[6]
In
Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689, [1993] S.C.J. No. 74, the Supreme Court
of Canada addresses circumstances where a refugee claimant did not seek out
state protection. At paragraphs 48 and 49, Justice LaForest states:
Most states would be willing to attempt
to protect when an objective assessment established that they are not able to
do this effectively. 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 situation 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.
[7]
The
applicant alleges that he suffered discrimination because of his religious and
ethnic background. During the course of the hearing before the Refugee
Division, he speaks of one incident which would have occurred in 1985 and to a
further incident when he would have been accosted by Muslims on a bus in
January 1990. Then he refers to large scale riots against the ethnic Chinese in
May 1998.
[8]
The
applicant left Indonesia in May 2001 and resided in the United States of
America where he did not make a claim for refugee protection hoping there would
be a general amnesty. Following the tragic events of September 2001, he
registered with the American authorities and then filed a refugee claim. This
he eventually withdrew because he knew that no one in his position would have
been granted refugee status. He then received notice from the US authorities
that he must leave by November 2004. He left and arrived in Canada October 24,
2004 and filed a refugee claim immediately.
[9]
Concerning
the incidents of 1985 and 1990, the applicant failed to report the incidents with
the police because he felt he had to bribe officers before they would initiate
any proceeding that would be of assistance. His explanation was rejected since
he failed to even attempt to seek assistance. The Refugee Division then
indicated that the burden was on the applicant to establish by clear and
convincing proof the absence of state protection.
[10]
The
Refugee Division went on to determine that even though he may have had some
reticence about returning to his initial place of residence there was an
internal flight alternative for this applicant in Bali.
[11]
As
both the Refugee Division and counsel for the respondent indicated in the
documentary evidence, the Indonesian police do arrest Muslims when warranted
and do attempt to protect its citizens.
[12]
In
assessing whether there is adequate state protection, the onus is on the
applicant to show that his government has been unable to provide effective
protection in particular circumstances.
[13]
The
applicant’s position amounts to nothing more than a disagreement with the
Refugee Division’s weighing of the evidence and I am satisfied that its
conclusion was clearly open to it based on the evidence.
[14]
I
am of the view that the applicant has not met the onus of satisfying the
Refugee Division that he was in fact a person in need of protection.
[15]
I
see no obligation to comment on the internal flight alternative determination.
The applicant has failed to meet the test; this application must therefore be dismissed.
JUDGMENT
The application for judicial
review is dismissed.
"Paul
U.C. Rouleau"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7487-05
STYLE OF CAUSE: DAMIANUS SJAFEI THAMRIN v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 4, 2006
REASONS FOR JUDGMENT BY: Rouleau D.J.
DATED: October 13, 2006
APPEARANCES
BY:
Micheal Crane
(416) 351-8600,
ext. 221 for the
Applicant
David Cranton
(416) 973-3135 for
the Respondent
SOLICITORS
OF RECORD
Micheal Crane
Barrister &
Solicitor
166 Pearl
Street, Suite 100
Toronto, Ontario
M5H 1L3 for
the Applicant
Department of
Justice
130 King Street
West, Suite 3400
Exchange Tower, Box 36
Toronto, Ontario
M5X 1K6 for
the Respondent
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