Date: 20050818
Docket: IMM-358-05
Citation: 2005 FC 1127
OTTAWA, ONTARIO, THE 18TH DAY OF AUGUST 2005
Present: The Honourable Mr. Justice Lemieux
BETWEEN:
DJEFRIE YOUKE TUJU
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Djefreie Youke Tuju (the "applicant") is an Indonesian Christian. The heart of his refugee claim is his stated fear of the father of his girlfriend Fitri, who, he says, accuses him of converting her to Christianity in December of 2001 and has threatened his life as a result. He also fears the police and the anti-Christians because Fitri's father is a very influential person, a senior military officer who can pay the police or tell the anti-Christians to arrest him.
[2] In its decision of January 4, 2005, the Refugee Protection Division (the "tribunal") rejected the applicant's claim on the basis of the overall effect of the findings it reached which "led the panel to arrive at a negative conclusion about the credibility of the claimant's alleged incidents arising from his relationship with Fitri". The tribunal continued:
Given this conclusion, the panel gives no weight to the medical certificate, which attests to his treatment for injuries on January 5, 2002. The panel does not believe that his injuries were resulted from the alleged incidents. Furthermore, the panel finds the self-serving nature of the letters from Fitri and the claimant's mother do not offset the credibility concerns the panel has with the claimant's testimony.
For all of the foregoing reasons, the panel does not find that there is a "serious possibility" that he would be at risk of persecution, torture, cruel or unusual treatment or punishment or that he would face a risk to his life should he return to Indonesia. [emphasis mine]
[3] I should mention that the hearing before the tribunal was de novo by a new panel. A previous panel had heard evidence on December 16, 2002, which it had decided could not be taken into account because of the poor quality of interpretation.
[4] The tribunal accepted the applicant's religious identity as a Christian to be credible and stated it was aware that incidents of violence between Muslim and Christian communities occur in Indonesia but concluded:
However, the claimant testified that his fear of return to his country did not stem from his religion, but rather, his relationship with his girlfriend. He also asserted that he had no problems practising his religion in Indonesia. In light of his testimony, the panel finds the determinative issue in his claim to be the credibility of his alleged incidents involving his relationship with Fitri. [emphasis mine]
[5] The findings relied upon by the tribunal, the cumulative effect of which led it to its conclusions, were as follows.
[6] First, the tribunal expressed doubts about Fitri's Muslim identity. The applicant had stated in his testimony that Fitri told her father on January 5, 2002, about her conversion to Christianity when her father asked her why she was no longer wearing a headscarf (Exhibit P-11). The tribunal challenged the applicant by pointing to two photographs taken in July of 1999 of the applicant with Fitri without a headscarf. The tribunal stated:
When the issue was put forth to the claimant, he contended that she wore a headscarf and a Muslim costume on that day, but she took them off just for the photographs.
The tribunal found the applicant's explanation too coincidental to be credible.
[7] Second, referring to a baptismal certificate (Exhibit P-8), the tribunal found it "at best attests to Fitri's baptism, but it cannot corroborate her previous Muslim identity". Counsel for the applicant agreed with the tribunal's finding on this point.
[8] Third, the tribunal doubted Fitri's father found out about their relationship by reading the applicant's love letters to her. It was dissatisfied with the fact the applicant did not put into evidence any love letters he received from Fitri prior to January 2002, when he fled his native land. The applicant had first met Fitri in 1998 but, being away as a seaman, the relationship between them had grown through correspondence. Challenged on this point, the tribunal stated that the applicant "simply said that his mother could not find them at home". The tribunal was not satisfied that the "claimant has established how he would have come to the attention of Fitri's father, particularly when he testified that Fitri never mentioned him to her father".
[9] Fourth, the applicant testified Fitri's father was a colonel in the military and was a "powerful" and "influential" man. The tribunal drew an implausibility in the following terms:
The panel finds it implausible that given his profile he would fail to find his daughter who has been purportedly living in Jakarta where the claimant's brother resides since January 2002.
[10] Fifth, the tribunal found it unreasonable that Fitri's father only returned [to the home of the applicant's mother] to look for the applicant in January 2003, and July 2004. It concluded the delay [the father] took was indicative of his lack of serious effort to seek the claimant out and stated that the applicant's credibility "is further undermined".
[11] Sixth, the tribunal stated the applicant had testified he had been hiding in his grandmother's home in Manado for two weeks before leaving for Jakarta. The tribunal challenged the applicant by pointing out an answer he gave to question 22 of his Personal Information Form (PIF) which indicated that he last lived in his mother's village before going to Jakarta in January 2002. The tribunal stated "when asked to explain the contradiction, he said that it was merely a short stay of two weeks, and he therefore did not include in question 22 of his PIF". Counsel for the applicant conceded the tribunal was correct in its statement about the applicant's answer to question 22. In any event, the tribunal came to the conclusion that the duration of his stay at his grandmother's could not explain the omission because he had reported an even shorter stay of one week while he was in Jakarta. It stated "confronted, the claimant was unable to offer any explanation". The tribunal concluded the contradiction pointed "to a lack of credibility about the claimant's alleged hiding in Manado".
[12] Seventh, the tribunal pointed to the applicant's testimony that Fitri would have been hiding at his brother's home in Jakarta since 2002 and asked the applicant to explain why his brother would provide refuge to Fitri, risking his own safety at the hands of a colonel from the military. The tribunal said the applicant testified that his brother did it because the applicant had requested his help. The tribunal did not believe the claimant would want to put his brother at risk.
[13] Finally, the tribunal referred to exhibit P-4 which was a police report based on the applicant's claim to the police that he had been assaulted and tortured at an army base by five soldiers in uniform. The tribunal said that there was no clear statement indicating the claimant was the victim of an assault nor was the name of Fitri's father mentioned in the police report notwithstanding the fact the applicant had testified he had identified the colonel by name. The tribunal concluded "considering the absence of this important information, the panel gives no weight to the police report".
[14] Two grounds for setting aside the tribunal's decision were argued before me by counsel for the applicant. First, he argued the tribunal did not consider the claimant's well-founded fear of persecution on grounds of his religion and, second, the tribunal made several errors in its appreciation of the evidence. Also, in his supplementary memorandum of fact and law, he claimed the tribunal erred in inversing the standard of proof with respect to paragraph 97(1)(a) and (b) of the Immigration and Refugee Protection Act (the "Act").
[15] The applicant's first and third points are questions of law with the standard of review being correctness while the second point relating to the appreciation of the evidence in respect of facts must be reviewed on the basis set out in section 18.1(4)(d) of the Federal Courts Act. This provision states that the Court may grant relief where it is satisfied the tribunal "based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it", a standard which is equivalent to the tribunal making a manifestly unreasonable decision.
[16] I cannot subscribe to the points of law raised by counsel for the applicant. In my view, the tribunal studied the applicant's claim related to his Protestant religion. As counsel for the defendant points out, referring to extracts of the transcript, the applicant's fear of the anti-Christians in Indonesia did not have a self-standing footing but was dependent upon the credibility of his relationship with Fitri whose conversion is said to have spawned her father's hate of him.
[17] In terms of the standard of proof in respect of the two subsections of section 97 of the Act, the inversion which counsel for the applicant spoke about is of no consequence since the Federal Court of Appeal's decision in Li v. Canada (Minister of Citizenship and Immigration) 2005 FCA 1, which held the standard of proof in respect of those separate subsections was the same standard of proof, i.e., the balance of probabilities.
[18] Counsel for the applicant's approach to the several findings of fact was to argue that if he could show a number of those findings were not well-founded on the evidence, the tribunal's decision should be quashed because the credibility finding was dependent upon an overall cumulative fact, citing the case of Sandhu v. Canada (Minister of Citizenship and Immigration), 2001 FCT 653.
[19] One of the major premises of his argument on this point is that the tribunal did not challenge the authenticity of several documents put in evidence which impacted upon the evidentiary weight to be given to them, relying on Blais J.'s decision in Khaira v. Canada (Minister of Citizenship and Immigration), 2004 FC 1071.
[20] According to counsel for the applicant, the tribunal, in these circumstances, could not simply dismiss as self-serving, Fitri's three letters to the applicant sent to him when he was in Canada (P-18, P-22 and P-26). The tribunal had an obligation to comment on them as they were central to his claim and corroborated his evidence.
[21] Counsel for the applicant pointed to several shortcomings in the evidence, mainly in the nature of alleged failure by the tribunal to take into consideration aspects of the applicant's testimony. I cite the following examples:
(1) Failure to appreciate that the father found out about his daughter's relationship with the applicant not only from the love letters he sent her but from her diary and photographs;
(2) Failure to appreciate the reason the father could not find his daughter in Jakarta was because of the distance between the residence of the applicant and his family and Jakarta itself (five days by ship and five hours by plane) and that she was residing there illegally (in hiding);
(3) In connection with the police report (P-3), failure of the tribunal to take into account the fact that the applicant testified he had told the police he was beaten but the police did not write that down in the police report;
(4) Error in appreciation of the evidence when the tribunal stated the photos taken in July of 1999 contradicted his testimony that Fitri was a practising Muslim. At page 458 of the transcript, the applicant had testified Fitri's family were very religious, conservative Muslims;
(5) Failure to take into account several pieces of evidence that the father was still looking for him, i.e. his amended PIF and Fitri's post departure letters to him;
(6) Failure to account the applicant's explanation of why he did not mention his hiding at his grandmother's but only mentioned staying at his mother's house. That explanation was that his mother's house and his grandmother's house were in the same district and city.
[22] In assessing these points made by counsel for the applicant, including the weight to be accorded a document whose authenticity has been accepted by the tribunal, I am reminded of what Justice L'Heureux-Dubé wrote at paragraph 85 of her reasons in Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793
¶ 85 We must remember that the standard of review on the factual findings of an administrative tribunal is an extremely deferent one: [1996] 1 S.C.R. 825=">Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, per La Forest J., at pp. 849 and 852. Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal's findings will a fact finding be patently unreasonable. An example is the allegation in this case, viz. that there is no evidence at all for a significant element of the tribunal's decision: see Toronto Board of Education, supra, at para. 48, per Cory J.; Lester, supra, at p. 669, per McLachlin J. Such a determination may well be made without an in-depth examination of the record: [1990] 2 S.C.R. 1324=">National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, per Gonthier J., at p. 1370. [emphasis mine]
[23] I am also reminded of Décary J.'s statement in Aguebor v. (Canada) Minister of Employment and Immigration, (1993) 160 N.R. 315 (F.C.A.) at paragraph 4:
¶ 4 There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden. [emphasis mine]
[24] As I see it, counsel for the applicant's challenge to the tribunal's findings of fact relate not so much to its findings of primary facts but rather to the inferences to be drawn from those primary facts or its failure to appreciate them appropriately.
[25] I have reviewed the transcript of the applicant's testimony before the tribunal. I could not find any instance where the tribunal's findings of primary facts were not supported by the evidence.
[26] I conclude that what counsel for the applicant is asking me to do is to re-weigh the evidence before the tribunal which the Supreme Court of Canada has admonished lower courts not to do.
ORDER
For all of these reasons, this judicial review application is dismissed. No certified question was proposed.
"François Lemieux "
J U D G E
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-358-05
STYLE OF CAUSE: DJEFRIE YOUKE TUJU v. M.C.I.
PLACE OF HEARING: Montreal (Quebec)
DATE OF HEARING: August 5, 2005
REASONS FOR ORDER
AND ORDER: : Lemieux J.
DATED: August 18, 2005
APPEARANCES:
Michel Le Brun FOR APPLICANT
Mario Blanchard FOR RESPONDENT
SOLICITORS OF RECORD:
Michel Le Brun
Montréal FOR APPLICANT
John H. Sims FOR RESPONDENT
Deputy Attorney General of Canada
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