2010 FC, 2010 FC 1164

Federal Court Cour fédérale Date: 20101125 Docket: IMM-115-10 Citation: 2010 FC 1164 Ottawa, Ontario, this 25 th day of November 2010 Before: The Honourable Mr.

Justice Pinard BETWEEN: MARIANA SURYANTI KEVIN KAO Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] This is an application for judicial review of the decision of Refugee Protection Division Member Normand Leduc of the Immigration and Refugee Board (the ​Board​), pursuant to subsection 72(1) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27, (the ​Act​) by Mariana Suryanti (the ​applicant​). [ 2 ] The applicant applied for refugee status under sections 96 and 97 of the Act , claiming that she had a well-founded fear of persecution in her home country of Indonesia , and that if she returned she would be subjected to a risk to her life or to cruel and unusual punishment because she is a Christian of Chinese origin.

The Board found the applicant did not face a ​risk of return​, nor would she be subject to discrimination amounting to persecution if she was to go back to her home country, and therefore she did not qualify as a Convention refugee or a person in need of protection. The Board also rendered a negative decision regarding the refugee status of the applicant​s son, Kevin Kao, which is not under review here. * * * * * * * * [ 3 ] The applicant is a 33-year-old Christian woman of Chinese origin and a citizen of Indonesia .

It is because of experiences related to her ethnic and religious background that she decided to leave her home country at the age of 18. She claimed that she lived in a state of tension in Indonesia , having been robbed by individuals of Indonesian origin while she was travelling on public transit, and having once been fondled on the street. When she went to the police for help, she was simply asked for money.

The applicant also stated that a person of Indonesian origin once threw a rock through the window of the church that she attended, and that she was reluctant to walk around openly with a Bible for fear of provoking the anger of certain Muslims. In addition, she was subject to rude and derogatory comments on the street because of her Chinese origin. The applicant claimed that because of the discrimination in Indonesia against

those of Chinese origin, as well as against Christians, she was in constant fear of being attacked at her church or home. [4] In 1998, the applicant left Indonesia for the United States, where she lived without status and where she also gave birth to herson. On March 22, 2008, she illegally crossed the border into Canada and subsequently made her claim for refugee status on April 7,2008. Her son arrived legally in Canada with friends of the applicant on March 17, 2008. [5] The applicant and her son attended their refugee hearing in Montreal on October 26, 2009.

On November 20, 2009, theBoard rendered its decision, finding that the applicant and her son were not Convention refugees or persons in need of protection. * * * * * * * * [6] The Board found that while the applicant​s testimony was ​sober and unexaggerated​, her experiences in her home countrywere isolated incidents that did not amount to persecution or demonstrate a ​risk of return​.

In addition, the Board noted that the applicant​ssister, also a Christian of Chinese origin, continued to live in Indonesia with no problems. [7] The Board also cited the country condition evidence that had been filed regarding the general situation of Chinese andChristians in Indonesia.

While it recognized that there was evidence of attacks and discrimination against ​certain minorities​ in thecountry, there were also indications that this type of behaviour towards those of Chinese origin had been on the decline in 2008 and thatthe government ​generally respected​ freedom of religion. [8] Overall, the Board was not convinced that if the applicant were to return to Indonesia her life would be at risk, nor that therewas a risk that she would be subjected to cruel and unusual punishment or torture.

In addition, it did not find that the discrimination shemay be subject to in Indonesia would amount to persecution. * * * * * * * * [9] The applicant raises a number of issues in her submissions that can be distilled into the following: a. Did the Board err by failing to provide adequate reasons for its decision? b. Did the Board fail to take into account the totality of the evidence when rendering its decision? c. Did the Board err in law by applying the

section 97 ​risk of return​ test to its evaluation of the applicant​s status as a

section 96Convention refugee? [10] A claim that a decision-maker failed to give adequate reasons in his or her decision is a question of procedural fairness thatshould be reviewed on the standard of correctness (Dunsmuir v. New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190, atparagraph 50; Andryanov v. Minister of Citizenship and Immigration, 2007 FC 186, at paragraph 15). [11] The question as to whether a decision-maker erred in its treatment of the evidence should be reviewed on the standard ofreasonableness (Dunsmuir, supra, at paragraphs 51 and 53; Cabrera v.

Minister of Citizenship and Immigration, 2010 FC 709, atparagraph 21). [12] Finally, whether the Board applied the correct legal test in determining the applicant​s status as a Convention refugee is aquestion of law that must be reviewed on the standard of correctness (Dunsmuir, above, at paragraphs 55 and 60).

* * * * * * * * A. Did the Board err in law by failing to provide adequate reasons for its decision? [13] The applicant claims that the Board failed to adequately explain how it came to the conclusion that the discrimination towhich the applicant may be subject if she returns to Indonesia would not amount to persecution. In addition, the applicant claims that theBoard did not turn its mind to the total effects of the discriminatory acts, and whether they could constitute persecution on cumulativegrounds.

Specifically, by finding that the applicant​s experiences amounted to ​isolated incidents​, the Board demonstrated a lack ofsensitivity to the cumulative impact of each incident and the general atmosphere of insecurity for Chinese Indonesians. [14] Reasons must be sufficient for a party to know why a claim is rejected and must reflect consideration of the main relevantfactors (Townsend v. Minister of Citizenship and Immigration, 2003 FCT 371, at paragraph 22; VIA Rail Canada Inc. v. NationalTransportation Agency, (FCA), [2001] 2 F.C. 25 (C.A.)). [15] In rejecting a claim for refugee status under

section 96, a Board is obliged to find that there is no serious possibility that theapplicant will face persecution either subjectively or objectively. The Federal Court of Appeal attempted to define persecution inRajudeen v. Minister of Employment and Immigration, [1984] F.C.J. No. 601 (QL), 55 N.R. 129: The first question to be answered is whether the applicant had a fear of persecution. The definition of Convention Refugee in theImmigration Act does not include a definition of ​persecution​. Accordingly, ordinary dictionary

definitions may be considered. The LivingWebster Encyclopedic Dictionary defines ​persecute​ as: ​To harass or afflict with repeated acts of cruelty or annoyance; to afflict persistently, to afflict or punish because of particular opinions oradherence to a particular creed or mode of worship.​ The Shorter Oxford English Dictionary contains inter alia, the following

definitions of ​persecution​: ​A particular course or period of systematic infliction of punishment directed against those holding a particular (religious belief);persistent injury or annoyance from any source.​ [16] It is the Board​s lack of consideration of the factors relating to the possible existence of objective persecution in Indonesiaagainst Chinese and Christians that is the most troubling.

In its short reasons, the Board cites ​incidents of attacks or discriminationagainst certain minorities​ over the past few years before stating that the discrimination to which the applicant may be subject would notamount to persecution. Recognizing that discrimination exists in a country and then stating that it does not amount to objectivepersecution is allowable, but only if the decision-maker gives some explanation as to why. [17] The applicant cites the recent Federal Court decisions of Junusmin v. Minister of Citizenship and Immigration, 2009 FC 673,and Limarto v.

Minister of Citizenship and Immigration, 2009 FC 521. Both of these decisions discuss at length the situation in Indonesiaas it pertains to Chinese Christians, and the cumulative effects of discrimination on that population.

While the fact patterns of theclaimants are very different to the one at bar, and thus should be treated carefully, the principle that they articulate is still sound: whileBoards are not required to cite every piece of information in their decisions, significant evidence in the country condition documents thatdirectly contradicts a Board​s finding must be addressed (Junusmin, at paragraph 38; Limarto, at paragraph 23). [18] In the case at bar, the country condition documents point to continuing problems for Chinese Indonesians.

A March 2006Response to Information Request states that although the situation of ethnic Chinese in Indonesia has improved since the fall of theSuharto regime in 1998, and there were no reports of attacks against the group between January 2004 and March 2006, they remain​legally and socially vulnerable​ (IDN101030.E., 28 March 2006, Response to Information Request Report (2004-2006)).

According tothe same report, post-1998 reforms have been ​insufficient to deliver freedom from institutionalized discrimination for the ethnic Chinesein Indonesia​ who continue to have difficulty obtaining identity documents such as birth and marriage certificates. Additionally, the Boardwas also presented with numerous articles that described the firebombing of churches by Muslim extremists, the beheading of Christianschoolgirls, and congregations being forced to close their churches out of fear, all pointing to a severe lack of religious tolerance inIndonesia.

The Board only made passing reference to this information before declaring it not to be persecutory in nature.

[19] Given the systemic discrimination against both those of Chinese origin and Christians in Indonesia over the past decade, I findthat the Board was required to delve further into the evidence to give reasons why it did not find the state of discrimination towardsmembers of those minority groups, including the applicant, to amount to persecution. This is not to say that such a finding would beunreasonable, simply that the Board was required to take the reader through its train of logic in a more meaningful way. [20] As a result, I do not find that the Board gave adequate reasons in its decision. B.

Did the Board fail to take into account the totality of the evidence when rendering its decision? [21] The applicant claims that the Board failed to take into account any of the evidence in the Refugee Protection Division​s binderthat points to a ​compelling pattern​ of persecution against Chinese Christians in Indonesia. In addition, she claims that the Board did nottake into account the ​abundant evidence​ which contradicts its findings. [22] For the reasons cited above, I find that the Board did indeed fail to take into account the totality of the evidence before it. Aswas stated in Cepeda-Gutierrez et al. v.

Canada (Minister of Citizenship and Immigration), (FC), 157 F.T.R. 35 atparagraph 17, a decision-maker​s burden of explanation increases with the relevance of the evidence in question to the disputed facts.While it specifically cited attacks and discrimination against minorities in Indonesia, including the 1998 riots against the Chinese, theBoard did so in a perfunctory fashion, without evaluating the information in a critical manner.

The Board additionally failed to take intoconsideration the cumulative effects of years of discrimination in Indonesia against both Christians and Chinese, of which there wasmuch evidence before it. While it is not up to this Court to re-weigh the evidence that was in front of the Board (Dunsmuir, above, atparagraph 47), it does not appear from its decision that it weighed much of the evidence at all. [23] Thus, the Board failed to give adequate reasons for its decision and also did not seem to take into account the totality of theevidence before it.

This is sufficient to allow this judicial review application without having to deal with the issue concerning the testapplied by the Board for

section 96 of the Act. * * * * * * * * [24] Consequently, the judicial review application is allowed and the matter is sent back to a differently constituted Board forreconsideration. [25] No question is certified. JUDGMENT The application for judicial review is allowed. The decision of the Refugee Protection Division of the Immigration and Refugee

Board (the ​Board​) dated November 20, 2009 is set aside and the matter is sent back to a differently constituted Board for reconsideration. ​Yvon Pinard​ Judge FEDERAL COURT NAME OF COUNSEL AND SOLICITORS OF RECORD DOCKET: IMM-115-10 STYLE OF CAUSE: MARIANA SURYANTI, KEVIN KAO v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: October 19, 2010 REASONS FOR JUDGMENT AND JUDGMENT: Pinard J. DATED: November 25, 2010 APPEARANCES : Me Mitchell Goldberg FOR THE APPLICANTS Me Sylviane Roy FOR THE RESPONDENT

SOLICITORS OF RECORD : Mitchell Goldberg FOR THE APPLICANTS Montréal , Quebec Myles J. Kirvan FOR THE RESPONDENT Deputy Attorney General of Canada