Date: 20101223
Docket: IMM-2651-10
Citation: 2010 FC 1326
Ottawa, Ontario, December 23,
2010
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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TONY DJAJADI SUGIARTO
HENNY SUGIANTO
ANGELINA NATSH LAZAKAR
ANGELA NIKITA LAZAKAR
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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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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an application for judicial review, pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c.27 [IRPA], of a decision of the Refugee Protection Division of the
Immigration and Refugee Board (the Board) dated March 25, 2010. The Board found
that the applicants were neither Convention refugees nor persons in need of
protection for the purposes of sections 96 and 97 of the IRPA.
BACKGROUND
[2]
Tony Djajadi Sugiarto
and his wife Henny Sugianto are both citizens of Indonesia.
They have two daughters: Angelina Natasha Lazakar (12 years old) and Angela
Nikita Lazakar (10 years old). Angelina was born in Indonesia and is an Indonesian citizen, while Angela was born in the
United States (US) and is a US citizen. The family (collectively
referred to as the “applicants”) is of Chinese descent. They are practicing
Catholics.
[3]
The
applicants left Indonesia for the US in April of 1999, almost one year after
wide-spread rioting saw the targeting of ethnic-Chinese living in Indonesia.
Out of fear for being returned to Indonesia, the applicants did not immediately
apply for asylum in the US. Instead, they waited until
2003 to make their claim; it was ultimately refused. Upon July 7, 2008, the
applicants arrived in Canada. They applied for refugee
protection on arrival.
[4]
The Board
provided an accurate summary of the facts alleged by the applicants in support
of their claim, it reads as follows:
[5] The adult claimants allege [they]
were discriminated against when they were young, because they were considered
to be [translation] “second-class” citizens. Thus, they allege that they were
forced to study in private schools, because they would not have had access to
public schools.
[6] The claimants also allege that they
were harassed in their youth. Mr. Sugiarto’s [translation] “pocket money” was
stolen by some young Indonesians when he was eight or nine years old, and Mrs.
Sugianto was groped in the street by some Indonesians in 1988, when she was 17
years old.
[7] The male claimant, Mr. Sugiarto,
alleges that he was also assaulted in 1996 when he drove his car through a
crowd of soccer fanatics. He alleges that soccer fans also threw rocks at the
church that he and his wife attended in 1997. Firecrackers were also thrown at
his house and at those of other ethnic Chinese, in December 1997, at the end of
Ramadan.
[8] The male claimant, Mr. Sugiarto, also
stated that his older brother was attacked twice, in September 1997 and January
1998, while driving his car through traffic congestion.
[9] The claimants allege that they lived
in fear of being attacked by Indonesian extremists during the riots of May
1998….
THE DECISION UNDER REVIEW
[5]
The Board
indicated that the determinative issue with respect to the applicants’ claim
was whether or not there existed a risk to the applicants in the event that
they were returned to Indonesia. It started its analysis by identifying
the subjective fears held by the applicants in this regard. Specifically, it
indicated that they were afraid of Muslim extremists in Indonesia, and in particular, it indicated that they feared that rioting,
similar to the rioting of May 1998, would reoccur.
[6]
In determining
whether the applicants’ fears were well-founded, the Board made reference to a number of
recent documents from its research directorate materials which indicated that
discrimination against, and persecution of, the ethnic-Chinese minority in Indonesia had lessened since the riots
of 1998. The Board pointed out that this was something that the applicants,
themselves, had admitted during the hearing. One report indicated that violence
against the ethnic-Chinese had virtually disappeared. Despite this, the Board
did acknowledge that some of these documents, nonetheless, indicated that
discrimination against the ethnic-Chinese was still a problem in Indonesia. The Board also pointed to a
2003 document, supplied by the applicants, which indicated that, “it is
dangerous to be an ethnic Chinese Christian in Indonesia today. There is significant possibility
that such persons will suffer serious physical harm.” The Board recognized that
there was a contradiction between this and the other documentary evidence that
it had canvassed, and indicated that it attached greater probative value to the
evidence from the research directorate materials because that evidence was
“more recent and more varied.” The Board also indicated that it had considered
the various newspaper articles submitted by the applicants related to “certain
incidents” of violence and tension between Muslims and Christians in Indonesia.
[7]
In
concluding its analysis, the Board indicated that it had also considered the
fact that the adult applicants’ parents, brothers, and sisters who
were all still in Indonesia had not experienced
any problems related to their ethnicity or religion since the applicants had
left.
[8]
In light
of the foregoing, the Board concluded that “even though incidents could still
arise between Muslim individuals or groups and Christian or Chinese individuals
or groups, the analysis of the evidence as a whole does not show that the
claimants would face a serious possibility of persecution or a probability of
being subject to a risk to their lives, to a risk of cruel and unusual
treatment or punishment, or to a danger of torture, owing to their dual Chinese
and Christian origins, should they return to their country.” With respect to
the minor applicant, Angela Nikita Lazakar, the Board noted that she was a US citizen and, as such, could return to
the US. The Board determined that
the applicants were not Convention refugees, nor persons in need of protection.
ISSUES
[9]
This
application raises the following issues:
a) What is the applicable
standard of review?
b) Did the Board err in assessing
whether or not the applicants held a well-founded fear of persecution?
ANALYSIS
a) What is the applicable
standard of review?
[10]
The question
of whether a fear of persecution is well-founded is a question of mixed fact
and law and, as such, it is reviewable using the reasonableness standard (Dunsmuir
v New-Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 53; Jean v Canada (Minister of Citizenship and
Immigration),
2010 FC 1014 at para 9). The Supreme Court of Canada in Dunsmuir at para
47 described the reasonableness standard as being “concerned mostly with the
existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
b) Did the Board err in assessing
whether or not the applicants held a well-founded fear of persecution?
[11]
The
applicants argue that the Board committed a reviewable error by failing to
consider whether there might be “cumulative grounds” for finding a well-founded
fear of persecution in their case. They submit that it was incumbent on the Board
to consider whether their past experiences, combined with the compelling
historical record of persecution against ethnic-Chinese Christians in Indonesia, gave rise to a well-founded
fear of persecution. Instead, the applicants claim that the Board did the
opposite – i.e. that it minimized both their past experiences and the overall
history of anti-Chinese persecution in Indonesia. I do not agree.
[12]
I would
agree with the applicants that when evidence establishes a series of actions
which can be characterized as discriminatory, if not necessarily persecutory,
it is incumbent on the Board to consider the cumulative nature of those actions
in order to determine whether the overall effect might constitute a valid basis
for a well-founded fear of persecution for the purposes of section 96 of the IRPA
(Munderere v Canada (Minister of Citizenship and Immigration), 2008 FCA
84, 291 DLR (4th) 68 at para 44; Mete v Canada (Minister of Citizenship and
Immigration), 2005 FC 840, 46 Imm LR (3d) 232 at para 4; Bobrik v Canada
(Minister of Citizenship and Immigration) (1994), 85 FTR 13, 50 ACWS
(3d) 850 (TD) at para 22).
[13]
In this
case, however, nothing in the Board’s reasons suggest that it failed to conduct
this type of a cumulative analysis. On the contrary, the Board thoroughly
reviewed the applicants’ allegations of past mistreatment. At the start of the
hearing, it took the time to ask the applicants to articulate their current
fear. The Board then proceeded to consider whether that fear was well-founded
on a prospective basis. The documentary evidence reviewed by the Board
indicated that while the ethnic-Chinese minority in Indonesia had, in the 1990s, faced “social forms
of discrimination, extortion, and persecution,” the situation had improved
greatly in the years since then. The Board’s decision, thus, did not turn on
whether or not the applicants had been persecuted in the past. Instead, the
Board arrived at its decision after finding that the applicants had not
demonstrated that they would face a serious possibility of persecution in the
event of their return to Indonesia today, some eleven
years after their departure in 1999.
[14]
Justice
Marshall Rothstein, in Pour-Shariati v Canada (Minister of Employment and Immigration) (1994), [1995] 1 FC 767, 52
ACWS (3d) 621 (TD) emphasized the prospective nature of the “well-founded fear
of persecution” pointed to by section 96 of the IRPA. At paragraph 17,
he indicated:
Before turning to the cases themselves, I
would observe that a Convention refugee claimant must demonstrate a
well-founded fear of persecution in the future to support a Convention refugee
claim. In making a claim for Convention refugee status, an individual will
often advance evidence of past persecution. This evidence may demonstrate that
he/she has been subjected to a pattern of persecution in his/her country of
origin in the past. But this is insufficient of itself. The test for Convention
refugee status is prospective, not retrospective: for example, see Minister
of Employment and Immigration v. Mark (1993), 151 N.R. 213 (F.C.A.), at
page 215. The relevance of evidence of past persecution is that it may support
a well-founded fear of persecution in the future. However, it is a finding that
there is a well-founded fear of persecution in the future that is critical.
[15]
Given that
over eleven years had passed since the applicants had left
Indonesia, it was entirely appropriate for the Board to look to the relevant
documentary evidence on country conditions, as well as to the experiences of
the applicants’ family members who had remained in Indonesia, to determine
whether or not the subjective fear held by the applicants was still, in the
year 2010, objectively well-founded. The applicants testified that since they
had left Indonesia in 1999, their family-members
who had remained had not experienced any problems with respect to their
ethnicity or religion. The applicants, in fact, admitted that the situation in Indonesia had improved. The documentary
evidence pointed to by the Board indicated that instances of violence against
the ethnic-Chinese in Indonesia had drastically declined
since the late 1990s, and that discrimination against the ethnic-Chinese was
also significantly diminished. While the Board acknowledged documentary
evidence submitted by the applicants that was to the opposite effect, it
provided reasons for assigning that evidence lower probative value.
[16]
I note
that the applicants have confined their argument to “one issue: The Board’s
failure to conduct an analysis based upon cumulative grounds.” I have already
indicated that this argument cannot be sustained in the current case. By way of
further illustration, it is useful to consider Junusmin v Canada (Minister
of Citizenship and Immigration), 2009 FC 673, 81 Imm LR (3d) 97, HL v
Canada (Minister of Citizenship and Immigration), 2009 FC 521, and Suryanti
v Canada (Minister of Citizenship and Immigration), 2010 FC 1164, the three
decisions put forth by the applicants in support of their “cumulative grounds”
argument.
[17]
In Junusmin,
my colleague Justice Michel Shore indicated that the
Board had failed to consider the evidence “as to the cumulative effect of
harassment in Indonesia” (Junusmin, above at
para. 48). The Board had stated in its reasons that “between 1998 and their
departure in 2006, there was only one incident with regard to [the applicants],
in April 2006.” It then went on to discount that incident as an isolated
occurrence not amounting to persecution. The problem, however, was that the
applicants had, in fact, pointed to multiple incidents of harassment and
violence during the period between 1998 and 2006. Completely absent from the
Board’s discussion, for instance, was the fact that Mr. Junusmin had been
forced, on a recurring basis, to pay protection money to two groups, in order
to avoid harassment and physical harm. The Board had failed to acknowledge
these important, recent events and thus, had truly failed to consider the
“cumulative effect” of the applicants’ experiences in Indonesia. The same cannot be said in the current
case where the Board provided a comprehensive review of the applicants’ past
experiences, identified the applicants’ subjective fears, and – given the
passage of eleven years - addressed that fear through an analysis of current
country conditions.
[18]
H.L., above, was another
case involving ethnic-Chinese from Indonesia.
In rejecting the applicants’ claim for refugee protection in that case, the
Board failed to acknowledge that one of the applicants had alleged that she was
the victim of a racially-motivated rape. In addition, contrary to the
documentary evidence, the Board found that the riots of May 1998 and the acts
of extortion surrounding those events were acts of a “general nature”, not
targeted at the ethnic-Chinese. Ultimately, the Board conceded that the Chinese
in Indonesia were discriminated against,
but it found that there was nothing to indicate that that discrimination
amounted to persecution. It was in this context that my colleague Justice Luc
Martineau found that the Board had not been sensitive to the cumulative effect
of the applicants’ past experiences.
[19]
Similarly,
in Suryanti, above, the Board discounted the applicant’s past
experiences in Indonesia as being “isolated incidents”
that did not amount to persecution. The Board was also very brief with respect
to the documentation on current country conditions. It acknowledged that some
incidents of discrimination had occurred in recent years, but found that any
discrimination to which the applicant would be subject would not amount to
persecution. Given this, Justice Yvon Pinard found that the Board erred by
failing to delve further into the evidence and give reasons to explain why it
did not find persecution.
[20]
In the
present case, however, the Board comprehensively reviewed the applicants’
account of past mistreatment. It did not dismiss that treatment as being
isolated and as not amounting to persecution. In fact, it cited evidence
acknowledging that the ethnic-Chinese in Indonesia had been persecuted in the mid to
late 1990s. Instead of minimizing or mischaracterizing the applicants’ past
experiences, the Board focussed on determining whether or not there was a
prospective basis for their alleged fear, given the changes that had taken
place during the intervening eleven years.
[21]
Ultimately,
the Board’s determination that the applicants had not demonstrated an
objectively well-founded fear of persecution, considering the prospective
nature of this requirement, was not unreasonable. For these reasons, the
application for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS that the application for
judicial review be dismissed.
“Danièle
Tremblay-Lamer”
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