Toronto, Ontario, November 22, 2006
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
TERISANATI ONGKOATMODJO
KENNY SETYANTO
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This application for judicial review involves three applicants: Mr. Priyanto; his wife, Terisanati Ongkoatmodjo; and their son, Kenny Septyanto. The adult applicants are citizens of Indonesia and the minor applicant is a citizen of the United States of America. They are ethnic Chinese Christians and allege a fear of persecution in Inodneisa on grounds of race, religion and membership in a particular social group. Terisanati also claims to be a victim of domestic abuse.
[2] The Refugee Protection Division (RPD) of the Immigration and Refugee Board dismissed the claims. Among other things, it determined that the applicants were not credible.
[3] No issue is taken with respect to the determination in relation to the minor child. Mr. Priyanto and Terisanati contend that the negative credibility findings of the RPD were patently unreasonable. Additionally, they assert that the RPD erred: in failing to apply IRB Guideline 4 “Women Refugee Claimants Fearing Gender-Related Persecution” (the Gender Guidelines); in attributing little weight to the psychologist’s report; in finding lack of subjective fear; in finding lack of nexus; and in finding adequate state protection.
[4] Credibility is the driving force behind the negative decision. The credibility findings permeate the other determinations. I have concluded that the credibility findings of the RPD were open to it. Additionally, I have not been persuaded that the RPD erred, as alleged, in its finding that the applicants did not have a well-founded fear of persecution. Consequently, the application for judicial review will be dismissed.
Background
[5] Mr. Priyanto and Terisanati met in Philadelphia, United States of America, in October of 2001. Kenny was born in Philadelphia on September 19, 2003. The family came to Canada in January of 2005.
[6] Mr. Priyanto left Indonesia in August of 1999. He lived in Philadelphia from 1999 until January, 2005. While there, he made a claim for refugee status but he left for Canada before his claim was determined. As an ethnic Chinese Christian in Indonesia, he claims to fear persecution from the Muslim majority in his country.
[7] Terisanati left Indonesia in December of 2000 and lived in Philadelphia and Buffalo. She claims, on the same grounds as her husband, to fear persecution from native Indonesian men. However, the primary focus of her claim stems from past domestic abuse inflicted by her ex-husband. She fears persecution from him because he is jealous, possessive and still wishes to be reunited with her. He is not aware that she has remarried and has a child. She is afraid of what her ex-husband will do to her, her husband, or her son in retaliation for leaving him and getting remarried.
The Decision
[8] The RPD found that Terisanati was not credible because, among other things, her testimony was inconsistent. There were inconsistencies between her initial statements at the port of entry (POE) and her personal information form (PIF) as well as between her PIF and her testimony at the hearing. Significant allegations made during the hearing were not contained in the PIF. In a similar vein, allegations contained in her PIF were not part of her evidence at the POE interview. The RPD also identified a number of allegations that it considered to be implausible or exaggerated.
[9] With respect to Mr. Priyanto, the RPD noted inconsistencies and omissions in his testimony. Material allegations made during the hearing were omitted from the PIF. Additionally, statements in the PIF were inconsistent with the testimony at the hearing.
[10] The RPD concluded that there was not a serious possibility that the applicants would face persecution if they returned to Indonesia. It also found that the applicants did not have a well-founded fear of persecution. Further, adequate state protection exists for the applicants in Indonesia should they choose to avail themselves of it.
The Standard of Review
[11] The applicable standard of review for credibility issues and questions of fact is that of patent unreasonableness: Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100; Augebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.); Harb v. Canada (Minister of Citizenship and Immigration) (2003), N.R. 178 (F.C.A.). With respect to state protection, I have previously adopted the pragmatic and functional analysis of my colleague Madam Justice Tremblay-Lamer in Chaves v. Canada (Minister of Citizenship and Immigration) (2002), 45 Imm. L.R. (3d) 58. I agree with Justice Tremblay-Lamer that the applicable standard of review in relation to a finding of state protection is reasonableness.
Analysis
Credibility
[12] The applicants have addressed and dissected nearly all of the negative credibility and plausibility findings made by the RPD. In the circumstances of this case, the caution expressed by Mr. Justice Joyal in Miranda v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 81 (T.D.) is instructive and appropriate. Justice Joyal stated as follows:
For purposes of judicial review, however, it is my view that a Refugee Board decision must be interpreted as a whole. One might approach it with a pathologist's scalpel, subject it to a microscopic examination or perform a kind of semantic autopsy on particular statements found in the decision. But mostly, in my view, the decision must be analyzed in the context of the evidence itself. I believe it is an effective way to decide if the conclusions reached were reasonable or patently unreasonable.
[13] Having considered the applicants’ submissions and having reviewed the documentation in the record and the transcript of the hearing, I can identify only one error on the part of the RPD. I agree with the applicants that it was patently unreasonable for the RPD to rely on Mr. Priyanto’s failure to mention the “Permuda Islam Jakarta” in his PIF when he clarified at the hearing (tribunal record at p. 560) that the name simply refers to Muslim youth in Jakarta and does not represent a particular organization or group. The RPD ought to have addressed this explanation. Additionally, while it appears that the RPD may have been over-reaching in relation to its finding of inconsistency regarding the omission in Terisanati’s PIF that she received some level of safety by marrying her ex-husband, I am unable to conclude that the RPD’s reliance on this inconsistency was patently unreasonable. The statement in her PIF could be interpreted in one of two ways. It is not for me to substitute my opinion for that of the RPD in such circumstances.
[14] The negative credibility determination does not turn on the one error that I have identified. The RPD gave a multitude of reasons as to why it did not find the applicants credible and no one single factor was determinative. It was the totality of the evidence (which included the inconsistencies and discrepancies) that led to the finding that the applicants were not credible.
[15] Microscopic examination of individual segments of evidence will undoubtedly yield the potential for alternative findings. However, that does not render the findings made by the RPD patently unreasonable. Intervention is not warranted when the RPD’s inferences and conclusions are reasonably open to it on the record even if I might have decided the matter differently. With the exception of the above-noted error, the findings of the RPD cannot be characterized as patently unreasonable. The error does not impact on the penultimate finding that the applicants are generally not credible. In short, the error is not material to the result. Consequently, there is no basis upon which I can, or should, intervene in the RPD’s determination.
The Gender Guidelines
[16] The applicants submit that the RPD failed to mention the Gender Guidelines and therefore the decision demonstrates insensitivity to issues affecting abused women generally and to the particular issues affecting ethnic Chinese women in Indonesia. The assertion is that the failure to apply the Gender Guidelines led to the negative credibility finding and the various implausibility findings, which are not so implausible if one examines the claim from the perspective advocated by the Gender Guidelines. I disagree.
[17] At the outset of its reasons, the RPD specifically identified the nature of Terisanati’s claim. Upon counsel’s request, arrangements were made that exhibited sensitivity to the gender issues raised in the Guidelines. The RPD provided many reasons for finding Terisanati to be not credible and it concluded that she generally lacked credibility. The Guidelines do not create new grounds for finding a person to be a victim of persecution nor can they be treated as corroborating any evidence of gender-based persecution so that the giving of the evidence becomes proof of its truth: Newton v. Canada (Minister of Citizenship and Immigration) (2000), 182 F.T.R. 294 (T.D.).
[18] In the circumstances of this case, in view of the nature of the claim and counsel’s conduct during the hearing, I am not persuaded that the RPD erred simply because of a failure to mention the Gender Guidelines in its reasons. In view of its various credibility findings (which do not necessarily turn on Terisanati’s evidence in relation to gender-related issues), specific reference to the Guidelines would not transcend the credibility problem and would not have affected the overall assessment.
The Psychological Report
[19] The RPD considered the psychological report and assigned it very little weight. First, it determined that the report contained information that was inconsistent with Terisanati’s evidence. The applicants disagree and maintain that the language used by the psychologist was open to more than one interpretation. Although I have some difficulty with the applicants’ proposed interpretation, even if they are correct in this respect, it does not demonstrate that it was unreasonable for the RPD to interpret the language in the manner in which it did.
[20] Second, the psychological diagnosis contained in the report was based on facts provided to the psychologist by Terisanati. The RPD, as it is required to do, assessed the credibility of Terisanati’s account of events in Indonesia and it did not believe her testimony. Accordingly, it was entitled to assign no weight to a report where the diagnosis was based on facts found not to have been established.
[21] The weighing of evidence is the function of the RPD and it provided a cogent and unequivocal explanation for assigning no weight to the psychological report. Its reasons in this respect are unassailable. The applicants’ argument is without merit.
Lack of Subjective Fear
[22] The applicants argue that the RPD erred in concluding that they lacked a well-founded fear of persecution in Indonesia. They contend that the RPD was mistaken in stating that Mr. Priyanto left the United States without knowing what had happened in relation to his asylum claim. There was no such mistake. Mr. Priyanto eventually did withdraw his claim. However, he did so at the American embassy, after his arrival in Canada. When he left the United States, he did not know its status.
[23] Relying on Mendez v. Canada (Minister of Citizenship and Immigration) 2005 FC 75, the applicants contend that it was not open to the RPD to conclude that Terisanati’s failure to submit a claim in a safe third country was determinative of a lack of subjective fear. Mendez stands for the proposition that failure to claim in a safe third country should not be the determinative factor in denying a claim. It is noteworthy that the RPD did not accept Terisanati’s explanation for failing to seek asylum in the United States. Moreover, the RPD cited many reasons for denying her claim. Failure to claim in the United States was not the determinative factor – lack of credibility was.
Lack of Nexus
[24] The applicants maintain that there was voluminous documentary evidence before the RPD describing how crimes against ethnic Chinese are tolerated by government authorities. No authority is cited in support of the submission that victims of crime constitute a group that satisfies the nexus requirement for the Convention refugee definition. Indeed, the jurisprudence is to the contrary. The applicants did not argue that the RPD’s section 97 analysis was in any way deficient. Given the credibility determinations, it is unlikely that any such argument could succeed.
Adequate State Protection
[25] The applicants’ quarrel regarding state protection relates to the RPD’s failure to specifically refer to the documentation they submitted in relation to the persecution of the Chinese minority and the fate of domestic violence victims in Indonesia. The RPD stated that it had reviewed the applicants’ evidence and described it as indicating “ongoing difficulties between ethnic Chinese minority and the Muslim majority”.
[26] The presumption of state protection delineated in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 in combination with sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) require the applicants to establish that they are unwilling or unable to avail themselves of the protection of the state in their country of nationality.
[27] The RPD noted that neither of the applicants had gone to the police in Indonesia. It was in that context that it concluded that the applicants’ failure to seek state protection was not reasonable and that they had not established that state protection was not available to them.
[28] Even if I were to accept that the RPD’s analysis on state protection could have been more fulsome, the applicants’ claims could not succeed. The credibility findings and the determination that the applicants lack a well-founded fear of persecution (neither of which warrant intervention) were fatal to the claims.
[29] For the foregoing reasons, the application for judicial review will be dismissed. Counsel did not suggest a question for certification and none arises.
ORDER
THIS COURT ORDERS THAT the application for judicial review is dismissed.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-516-06
STYLE OF CAUSE: PRIYANTO ET AL v. MCI
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 21, 2006
AND ORDER: LAYDEN-STEVENSON, J.
APPEARANCES:
Ellen Woolaver FOR THE APPLICANT
Asha Gafar FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ellen Woolaver FOR THE APPLICANT
Barrister and Solicitor
Toronto, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Ontario Regional Office
Toronto, Ontario