Date: 20041217
Docket: IMM-794-04
Citation: 2004 FC 1751
Ottawa, Ontario, December 17, 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
DIETER EKO ARIE WIDYANATA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Dieter Eko Arie Widyanata is an Indonesian national. He is of Chinese ethnicity, and is a Catholic. Mr. Widyanata claims to fear persecution in Indonesia based upon his religion and his ethnicity.
[2] Mr. Widyanata's father, mother and sister all claimed refugee protection in Canada in 1999, based upon events occurring in Indonesia in 1998. All three claims were successful. Mr. Widyanata made his refugee claim in 2003.
[3] The Refugee Protection Division of the Immigration and Refugee Board rejected Mr. Widyanata's claim for refugee protection, finding that the threat that confronted the Chinese-Indonesian community in Indonesia in 1998 was no longer present. As a result, the Board concluded that Mr. Widyanata's claim was not objectively well-founded.
[4] Mr. Widyanata seeks judicial review of the Board's decision, asserting that the Board erred by failing to properly consider all of the evidence with respect to the risk now faced by members of the Chinese-Christian community in Indonesia. He further submits that the Board erred in failing to specifically address his fear of persecution relating to his religion.
Factual Background
[5] Mr. Widyanata says that in 1996, he was terrorized by a gang of Muslim youths, who made derogatory remarks to him relating to his ethnicity, while trying to rip the Catholic school crest off of his school uniform. On another occasion, he was surrounded by a mob, and was again subjected to ethnic insults. On a third occasion, Mr. Widyanata was confronted by a man in an army uniform, who demanded money from the 'rich Chinese'.
[6] As a result of these incidents, Mr. Widyanata left Indonesia in 1997. He went to the United States, where he continued his university education. His family stayed behind in Indonesia, where they continued to face problems related to their ethnicity.
[7] In May of 1998, Mr. Widyanata's mother was surrounded by a mob while in her car. She was threatened with rape, on account of her being Chinese. Her driver was able to speed away through the mob, and she escaped unharmed. Two days later, Mr. Widyanata's father was himself confronted by a mob, and escaped by paying a lot of money to a security guard, who led him through the crowd with sirens blazing.
[8] Over the ensuing months there were a number of anti-Chinese riots in Jakarta. On November 18, 1998, Mr. Widyanata's sister was surrounded by a mob while in a taxi on her way home from school. The mob demanded money, and then tried to open the door while shouting racist remarks. The driver was able to get through the mob, and the sister was not harmed.
[9] Four days later, churches were burned in Jakarta, and six Christians were murdered not far from the Widyanata family home. As a result, the family began hiding their religious identity. On April 18, 1999, Mr. Widyanata's father was caught by a mob as he went to buy groceries. The mob shouted, "Chinese man, let's rob him." The father was robbed and beaten in this incident. The family left Indonesia for Canada later that year. As previously noted, their refugee claims were accepted.
[10] When questioned as to why he did not make his own refugee claim after the May 1998 riots, Mr. Widyanata said that he followed the advice of his parents who wanted him to finish two more years of school before he applied.
The Board's Decision
[11] The Board made no adverse credibility findings against Mr. Widyanata. Instead, the focus of the Board's analysis was on the current situation regarding the Chinese-Christian community in Indonesia.
[12] The Board considered the extent to which Islamic militancy remained alive in Indonesia, and what support it had within the higher levels of the current government and military. The Board concluded that while Islamic militancy remains alive in Indonesia, its target is no longer ethnic Chinese or Chinese Catholics, but rather western interests.
[13] According to the Board, while there are still concerns with respect to Muslim-Christian conflict in Malaku or Central Sulawesi, these areas are far removed from Jakarta, which is where Mr. Widyanata lived.
[14] The Board further noted that the People's Consultative Assembly ("MPR"), has proven to be willing to exert control over the military. The MPR rejected the imposition of Sharia law in Indonesia. Indeed, the MPR consists largely of moderate Muslims.
[15] The Board noted that the MPR has taken a number of steps to increase the stability of democratic institutions within Indonesia, including reducing the number of seats held by the military within the MPR itself. From this, the Board concluded that Islamic fundamentalism is being weakened in Indonesia, and that the country is becoming a more moderate Islamic nation.
[16] The Board observed that many of Mr. Widyanata's submissions dealt with the anti-Chinese riots of 1998, and their immediate aftermath. However, since the Bali bombing in 2002, there have been a number of new anti-terrorism decrees issued. The alignment of Indonesian Muslim extremists with Al Qaeda has also resulted in a strengthening of the relationship between the Indonesian government and the United States government, as both countries strive to combat terrorism.
[17] The Board referred to the 2002 Department of State Report, which stated that "during the year, there were instances of discrimination and harassment" against ethnic Chinese. The Board noted that these events were few in number, and relatively local in impact. The Board also observed that the 2002 International Religious Freedom Report indicated that there were signs of growing interfaith cooperation in Indonesia.
[18] The Board therefore concluded that "the threat that confronted the Chinese-Indonesian community in 1998, when Suharto fell, does not confront them in 2003". With no serious possibility of danger of torture, risk to life, or cruel and unusual punishment, the Board denied the claim on the basis of Mr. Widyanata's failure to satisfy the objective criteria of the test.
Issues
[19] Mr. Widyanata identifies two issues on this application:
1. Whether the Board had regard for all of the evidence or made findings of fact that are not supported by the evidence; and
2. Whether the Board properly considered the aspect of the claim relating to Mr. Widyanata's Christian religion.
Did the Board have regard for all of the evidence or make findings of fact that are not supported by the evidence?
[20] Mr. Widyanata submits that the Board erred in examining the current situation in Indonesia without having due regard for the historical antipathy shown to members of the Chinese-Christian community in that country. In this regard, he points to the situation in the 1960's, where hundreds of thousands of Chinese-Indonesians were killed.
[21] Mr. Widyanata also submits that the May 1998 riots were not a one-time aberration, but were rather symptomatic of a chronic scapegoating of the ethnic Chinese in Indonesia.
[22] While acknowledging the documentary evidence indicating that the attentions of Indonesian Islamic extremists have turned away from the Chinese-Christian community, and are now focused on Western interests, Mr. Widyanata contends that the situation in Indonesia is still in flux. According to Mr. Widyanata, there is lingering resentment towards his community that might erupt in violence in times of stress.
[23] In support of his submissions, Mr. Widyanata points to specific extracts of various documents in the record. It should be noted that most of these documents were specifically referred to by the Board in its decision. With respect to any documents not specifically mentioned in the decision, the failure of an adjudicator to mention individual documents does not mean that he or she did not take the documents into account in coming to a decision: see Woolaston v. Canada (Minister of Manpower and Immigration), [1973] S.C.R. 102">[1973] S.C.R. 102 and Hassan v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 946.
[24] In my view, the Board's analysis here was detailed and careful, and it is not for this Court to re-weigh the evidence that was before the Board. The Board recognized that anti-Chinese and anti-Christian sentiments continue to be a problem in Indonesia, particularly in certain areas of the country that are far removed from Jakarta. However, the Board also found a commitment on the part of the government to eliminating the persecution of the Chinese-Christian community, a commitment that has translated into real action.
[25] I am not persuaded that the Board made any reviewable error in analysing the current situation in Indonesia. As the respondent noted, a refugee analysis is forward-looking. At this point, Mr. Widyanata's claim that the Chinese-Christian community"might" be exposed to persecution in the future is largely speculative.
[26] Finally, Mr. Widyanata points to a decision of the United States Court of Appeals for the Ninth Circuit in Sael v. Ashcroft, 386 F. 3d 922 (9th Cir. 2004), where an Indonesian of Chinese descent was found to have a well-founded fear of persecution based upon her ethnicity. According to Mr. Widyanata, while not binding on this Court, this decision supports his argument as to the lingering resentment against members of the Chinese community in Indonesia and should be persuasive.
[27] I have reviewed the Sael decision. Not only are the facts and the applicable law somewhat different to those in issue here, the documentary record before the Court regarding the conditions in Indonesia for members of the ethnic Chinese community was also different. As a consequence, the decision is of limited persuasive value in this case.
Did the Board properly consider the aspect of the claim relating to Mr. Widyanata's Christian religion?
[28] Mr. Widyanata also takes issue with the penultimate paragraph of the decision, where the Board finds that:
[T]he threat that confronted the Chinese-Indonesian community in 1998, when Suharto fell, does not confront them in 2003. I find that the claimant's claim is therefore not objectively well-founded and that the claimant does not face a serious possibility of persecution on account of his ethnicity if he returns to Indonesia at the present time. [emphasis added]
[29] According to Mr. Widyanata, the failure of the Board to mention Indonesian Christians in its conclusions means that the aspect of his claim related to his religion was not properly considered by the Board.
[30] I do not accept this submission. A review of the Board's decision as a whole makes it abundantly clear that the Board was, at all times, alive to the fact that Mr. Widyanata's refugee claim was based upon both his ethnicity and his religion.
[31] At the beginning of its analysis, the Board noted that Mr. Widyanata claimed that violence against the Chinese and Christian communities continues in Indonesia. The Board goes on to say "I shall combine these matters and analyse them together to assess whether the claimant has a well-founded fear of persecution simply by virtue of being a Chinese Christian".
[32] Throughout its lengthy and careful analysis of the pertinent country condition information, the Board repeatedly makes reference to the situation facing Indonesians of Chinese extraction, as well as to that facing Christians. The issue of Muslim/Christian tension is specifically addressed by the Board in its analysis. On this basis, the decisions in Daci v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 394 and Ghasemian v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1591 may be distinguished.
[33] As a result, I am satisfied that the religious aspect of Mr. Widyanata's refugee claim was properly addressed by the Board, and that the failure to specifically mention the Christian community in the concluding paragraph cited above represents nothing more that an oversight on behalf of the Board.
Conclusion
[34] For these reasons, the application is dismissed.
Certification
[35] Neither party has suggested a question for certification, and none arises here.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is dismissed.
2. No serious question of general importance is certified.
"Anne L. Mactavish"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-794-04
STYLE OF CAUSE: DIETER EKO ARIE WIDYANATA v. MCI
DATE OF HEARING: November 24, 2004
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER
AND ORDER BY: Mactavish, J.
DATED: December 17, 2004
APPEARANCES BY: Mr. Jack C. Martin
(416) 351-8600 ext. # 227 For the Applicant
Mr. Stephen Jarvis
(416) 973-0444
For the Respondent
SOLICITORS OF RECORD: Jack C. Martin IMMIGRATION and FAMILY LAW OFFICES
166 Pearl Street
Suite 200
Toronto, Ontario
M5H 1L3
For the Applicant
Stephen Jarvis
DEPARTMENT OF JUSTICE
130 King Street West
Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
For the Respondent
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