Date: 20010216
Docket: IMM-1546-00
Neutral Citation: 2001 FCT 87
BETWEEN:
TONY BATI
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
HENEGHAN J.
[1] Mr. Tony Bati (the "Applicant") seeks judicial review of a decision made by the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"). In its decision dated February 29, 2000 the Board determined that the Applicant is not a Convention refugee.
[2] Specifically, the Board found that there was not a reasonable chance or serious possibility that the Applicant would be persecuted in Indonesia on any Convention ground. The Board also considered whether the Applicant had an Internal Flight Alternative ("IFA") in Indonesia and concluded that he did, on the island of Bali.
FACTS
[3] The Applicant is a twenty-four year old citizen of Indonesia who claimed Convention refugee status in Canada on the bases of religion and ethnicity. The Applicant first came to Canada in 1993 as a student, holding a valid student visa which he renewed, as required, until 1996. Following the expiration of his student visa in 1996, the Applicant remained in Canada without status.
[4] In 1999, he was arrested in relation to an outstanding warrant for criminal charges which were subsequently withdrawn. As a result of his arrest in 1999, the Applicant came to the attention of the Immigration authorities in Canada. He subsequently made an application for Convention refugee status on the grounds of religion and ethnicity.
[5] The Applicant is ethnic Chinese. He was born and raised in Indonesia and attended school there until he came to Canada in 1993. While in junior school, the Applicant converted to Catholism.
[6] After coming to Canada in 1993, the Applicant remained in this country with the exception of a four week visit to Indonesia in 1995. He referred to two incidents which occurred during that visit which made him fearful of returning to his native land. First, he alleged that he and his father were accosted when travelling to his father's chicken farm. Their car was surrounded by some ten to twelve men who, with knives drawn, started rocking the car and shouting about "rich Chinese". The incident was halted following the intervention of one of his father's employees.
[7] Second, the Applicant testified that while travelling on a tour bus which was filled mainly with Chinese passengers, Indonesian men boarded the bus in broad daylight and robbed the Chinese passengers without interfering with the Indonesian passengers.
[8] The Applicant said that during the political unrest and rioting which occurred in Indonesia in 1998, his family had to hire bodyguards to guard their home. He said that his family moved from Jakarta to Riau in June 1999 and said that they were unable to leave Indonesia because of a lack of funds.
[9] The Applicant stated that he fears being jailed upon returning to Indonesia because his passport and Canadian visa are expired. He fears for his life if he is imprisoned. He fears that he will be unable to join his family if he must return to Indonesia. He claims to fear severe reprisal from the Indonesian authorities if they learn that he had made a refugee claim in Canada.
[10] The Applicant attempted to explain his delay in seeking refugee status in Canada upon the basis that he sought legal assistance after the expiry of his visa but he was unable to pay for legal advice and did not pursue his claim. When he consulted the Indonesian Consulate in Toronto to determine if he could stay in Canada without a valid visa, he was informed that he could not.
[11] At the time the Applicant advanced his claim for refugee status in Canada, he referred only to the Convention refugee ground of ethnicity. He added the ground of religion when he appeared before the Board.
ISSUES
[12] The Applicant raised three issues in this application for judicial review. First, he says that the Board erred in its assessment of his credibility by making findings of fact based on a misapprehension of the evidence or in the absence of evidence. Second, he says that the Board erred in finding an internal flight alternative for him in Bali. Third, he says that the Board erred in failing to consider whether his claim was well-founded on the grounds of race and religion, even if it reasonably found that he had no subjective fear of persecution.
[13] This application for judicial review is taken pursuant to section 82.1 of the Immigration Act, R.S. 1985, c. I-2 which allows the Court to intervene in the limited circumstances identified in that section. The section provides as follows:
| 82.1 (1) An application for judicial review under the Federal Court Act with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be commenced only with leave of a judge of the Federal Court -- Trial Division.
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| 82.1(1) La présentation d'une demande de contrôle judiciaire aux termes de la Loi sur la Cour fédérale ne peut, pour ce qui est des décisions ou ordonnances rendues, des mesures prises ou de toute question soulevée dans le cadre de la présente loi ou de ses textes d'application -- règlements ou règles -- se faire qu'avec l'autorisation d'un juge de la Section de première instance de la Cour fédérale.
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[14] The role of the Court upon an application for judicial review is to review the manner in which the Board reached its decision, not to substitute its view as to the weight to be given to the evidence submitted before the panel. In this regard, I refer to Sivasamboo v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 741 (T.D.) and Pushpanathan v. Canada [1998] 1 S.C.R. 982.
[15] In the present case, the Board had the opportunity to hear the evidence of the Applicant. It had the responsibility of assessing that evidence and determining the weight to be accorded to it. Throughout the process, the burden lay upon the Applicant to show that he met the definition of a Convention refugee in order to gain admission into Canada; see Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689.
[16] As noted above, the Board concluded that the Applicant had not met any of the grounds required to establish Convention refugee status. This must mean that the Board did not accept the Applicant's submissions that he had a well-founded fear of persecution on the grounds of ethnicity or religion.
[17] In its reasons, the Board specifically addressed these two grounds. It reviewed the evidence presented to it and expressed its conclusions. Those conclusions, referred to above, are supported by the evidence before the Board. There is no basis for judicial intervention with those findings.
[18] As for the issue of the IFA, this was specifically raised in the hearing before the Board. The Applicant was questioned about the availability of safe residence in Bali. He demonstrated very little knowledge about life on that island.1 He neither admitted nor denied that he could live safely in Bali, but the possibility was raised with him.
[19] In addition to the Applicant's own testimony, the Board was equipped with certain documentary evidence about conditions in Bali. While the leisure travel information that was presented may be of little weight, the Board was also in possession of a travel advisory issued by the Canadian government. In my opinion, that is independent evidence upon which the Board could rely.
[20] While the evidence before the Board concerning direct air transportation from Toronto to Bali is suspect, in my opinion this does not change the result. The Board had concluded that the Applicant was not a Convention refugee but in any event, went on to consider whether an IFA existed for the Applicant. It noted the proximity of Bali to Jakarta, the place where the Applicant's family "probably" remained.
[21] According to the decision of the Federal Court of Appeal in Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706, the existence of an IFA is part of the determination of whether the claimant is a Convention refugee. The answer to that question alone, however, does not answer the primary question which is whether a person has established that he or she falls within the definition of a Convention refugee.
[22] In conclusion, I am not persuaded that the findings of the CRDD are patently unreasonable, having regard to the evidence which was presented to the panel. There is no basis for judicial intervention.
ORDER
[23] The application for judicial review is dismissed.
[24] Counsel for the parties agreed there was no question of general importance for certification.
"E. Heneghan"
J.F.C.C.
Ottawa, Ontario
February 16, 2001
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1See Tribunal Record, pp. 511 - 512.
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