Date: 20051107
Docket: IMM-9951-04
Citation: 2005 FC 1508
Ottawa, Ontario, November 7, 2005
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
HARYADI PRAYOGO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
1. Introduction
[1] This is an application for judicial review of the negative decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), rendered on October 29, 2004, wherein the Applicant, Haryadi Prayogo, was found not to be a Convention refugee nor a person in need of protection.
[2] The Applicant asks this Court to set aside the decision of the Board and refer the matter back for determination in accordance with such directions as the Court considers appropriate.
2. Factual Background
[3] The Applicant is a Christian, born on November 26, 1971, in Surabaya, Indonesia. His parents and siblings are also citizens of Indonesia and reside in that country. The Applicant fears a group of Muslim fundamentalists who attacked him after leaving church on December 24, 1999. During the attack he claims one friend was shot in the arm and another friend was killed. He managed to escape with an injury to the head and went into hiding. Fearing for his life, he applied for a US visa which he obtained in July 2000. He fled to the United States in September 2000 where he lived and worked illegally until March 2003. He states that he did not claim refugee protection in the United States because he was informed by the Indonesian community in New York that he would be summarily deported. Fearing removal to Indonesia, he left the United States and arrived in Canada in March 2003 where he claimed refugee status.
[4] The Applicant's claim was heard on September 9, 2004, and the Board rendered its negative decision on October 29, 2004. Leave to commence this application for judicial review was granted on June 7, 2005.
3. Impugned Decision
[5] The Board accepted the Applicant's identity and the fact that he is an Indonesian national. Although the Board accepted that he was born into a Christian family, it found that he does not practice his religion in Canada where he is free to do so.
[6] The Board found credibility to be the determinative issue in this case. It found that the Applicant's evidence, in respect to the central elements of the claim, was not credible or trustworthy based on inconsistencies, contradictions and omissions in the Applicant's evidence.
[7] The Board found it implausible that the Applicant's alleged problems were caused by the fact that he is "Chinese and Christian". The Board noted that since the Applicant's parents and siblings, who are also "Chinese and Christian", live without problem in Indonesia, he could also live in Surabaya with his siblings and parents.
[8] The Board also that found the Applicant's failure to claim asylum in the United States is inconsistent with the actions of a person who has a subjective fear of persecution in his country.
[9] Since the Board concluded that the Applicant is not a credible witness, it stated that it was not necessary to address the objective basis of his fear of persecution. The Board found that there was not a serious possibility that the Applicant would be persecuted for a Convention ground or be subject to a risk to life or cruel and unusual treatment or punishment were he to return to Indonesia. The Board therefore determined that the Applicant was not a Convention refugee nor a person in need of protection.
4. Issues
[10] The Applicant raises the following two issues in this application:
A. Did the Board exhibit a reasonable apprehension of bias and deny the Applicant procedural fairness in the conduct of the hearing of the Applicant's refugee claim?
B. Did the Board rely on erroneous, perverse and capricious findings of fact in making its negative credibility finding?
5. Analysis
A. Did the Board exhibit a reasonable apprehension of bias and deny the Applicant procedural fairness in the conduct of the hearing of the Applicant's refugee claim?
[11] The Applicant argues that the Board member exhibited a reasonable apprehension of bias in that the Board member laughed while interrupting his testimony. The Applicant contends that the Board's conduct and aggressive approach in questioning during the hearing confused him and led him to believe that the Board had determined that his claim had no chance of success. The Applicant argues that this amounts to a miscarriage of justice and warrants the intervention of this Court, notwithstanding the adverse finding of credibility.
[12] The test for a reasonable apprehension of bias was set out by the Supreme Court of Canada in Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369 at p. 394:
[...]the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. [...]"
[13] In the present instance, there was no Refugee Protection Officer present at the hearing. It is quite reasonable in such circumstances for the Baord to question the claimant. I have reviewed the record, notably the transcript of the hearing, and particularly the questions put to the Applicant by the Board member. Although some questions were aggressive and direct, I cannot conclude that a reasonable apprehension of bias is raised in the present case.
[14] The case law clearly establishes that the grounds for the apprehension of bias must be substantial: Committee for Justice and Liberty, supra, at pages 394-395; R. v. S. (R.D.), [1997] 3 S.C.R. 484 at paragraphs 31 and 112. As Justice Cory noted in S. v. (R.D.), supra, at paragraph 112, the jurisprudence supports the contention that a real likelihood or probability of bias must be demonstrated, and that a mere suspicion is not sufficient. Further, it is settled law that an apprehension of bias must be raised at the earliest opportunity to enable a tribunal to address the issue and take corrective measures if necessary. Bias was not raised as an issue at the hearing and, in any event, I am not satisfied that the evidence on record supports such a claim. I conclude that the Applicant has not met the high threshold of showing a real likelihood or probability of bias in the present case.
B. Did the Board rely on erroneous, perverse and capricious findings of fact in making its negative credibility finding?
[15] It is not disputed, and indeed well accepted in the jurisprudence, that factual findings are judicially reviewed on the patent unreasonableness standard of review: Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226.
[16] The Applicant contends that the Board made two patently unreasonable findings of fact which would warrant this Court's intervention. First, that the Applicant was found to be a person of Chinese descent and second, that the Applicant was found not to be a practising Christian. I will deal with each of these findings in turn.
[17] The Applicant argues that the Board's entire factual findings are irreparably tainted by the fact that it erroneously believed the Applicant to a be a person of Chinese descent. This is not only inconsistent with the clear evidence before the Board, but it is a material error that changes the entire character of the claim. In his affidavit, the Applicant states that neither he nor his family members are Chinese. The Applicant submits that this particular Board member has a propensity to "confuse claimants and mix facts from one claim into another". He points to a decision of the same Board member which was overturned by this Court in Kudato v. Canada (Minister of Citizenship and Immigration), a decision rendered by Justice Gibson on November 4, 2004.
[18] The written record appears to establish that the Applicant is of Indonesian origin and not of Chinese origin. This evidence is blurred somewhat by the Applicant's testimony where he suggested that he was of Chinese origin. At pages 138 and 139 of the transcript of the hearing, the Applicant testified as follows:
[Applicant]: If I got back, definitely my life will be in danger. Will be in danger, or might even be killed. Because 98 percent of those populations are Muslim, and the rest is like Christians.
Presiding Member: Why would you be the one, Sir? Why you?
[Applicant]: Because I'm the Chinese, and the Christian. I'm like a Chinese and a Christian, and definitely I will be the target for these people.
Presiding Member: I'm still asking you why? There are a lot of Chinese Christians in Indonesia.
[Applicant]: Yes, these have a lot of Chinese and Christians stay around there. But, in fact they are living in fear. And if they got the opportunity, definitely they will run away.
[19] Counsel for the Applicant did not attempt to clarify the eivdence. In fact, during submissions before the Board, counsel made reference to the difficulties faced by the Christians and ethnic Chinese in Indonesia. At page 158 of the Tribunal Record, counsel for the Applicant submitted the following:
Counsel: My client is making a claim on the basis that he is a Christian, and he is afraid of going back to Indonesia, because there has been a history of attacks on Christians in Indonesia, especially during times of civil unrest. If you go through the documents that the RPD provides about the history of Indonesia, it becomes quite clear that periodically in times of civil unrest, there is a history of religious strife, targeting specifically the Christians, and also the ethnic Chinese.
This is a problem for my client, because he is Christian. That's a very small percentage of the most populous Muslim country in the world. The fact is that he personally has been involved in some of this violence, first back in the year 1998 when he was working at the hotel, and he had to go and identify the body of a friend of his, who also worked at the hotel, who had been killed in the riots, which were largely directed against Christians and ethnic Chinese.
[20] Based on the Applicant's testimony, the Board makes the following findings in its decision:
He was asked why would he have problems in Indonesia and he said because he was Chinese and a Christian. It was pointed out to the claimant that his parents and siblings are Chinese and Christians and they were, according to his testimony, living without problems in Indonesia.
[...]
The panel finds his alleged problems because he is Chinese and Christian implausible. Since his parents and siblings are of the same origin and religion, then he could also live in Surabaya with his siblings and parents.
[...]
The panel finds that the claimant could live with his parents and siblings in Surabaya since they, as Chinese and Christians, do not have problems living there.
[21] The Board's reasons in respect to the Applicant's ethnicity reflect the Applicant's confused testimony on the issue. It would have been desirable for the Board to acknowledge the conflicting evidence. However, it cannot be said that the Board's finding was made without regard to the evidence. I am of the view that, even if the Board erred in finding that the Applicant was Chinese, the error is not determinative. The Applicant's claim is founded on a fear of persecution by reasons of being a Christian. Whether the Board erred in determining that he was also of Chinese origin matters little in the circumstances. The Board's credibility findings were based on other factors which were clearly set out in its decision, and which I will consider later in these reasons.
[22] The Applicant also takes issue with the Board's finding that he is not a practising Christian. The Applicant contends that he produced ample evidence to establish that he is Christian. The Applicant contends the Board's finding is not supported in the evidence and is an irrelevant attack on his faith.
[23] At pages 2 and 3 of its reasons the Board wrote:
The claimant also provided his Baptismal Certificate from Indonesia. The panel accepts that he was born in a Christian family. His testimony indicates that he is not a practicing Christian. He did not present any letters, which indicates that he is a member or attends a church in Canada. He testified that he works on Sundays so he does not go to Church that often but attends maybe twice a month.
Counsel in his submissions submitted that the claimant has to pay rent so he has to work. The panel finds that the claimant is free to pray and attend church as he pleases in Canada where he has no restrictions, but he does not do so. The panel finds that he does not practice his religion in Canada where he freely can. The panel finds that the actions of the claimant lead the panel to believe that his activities are inconsistent with his evidence with regard to his activities in Indonesia, which forms the basis of his claim.
[24] In circumstances where an applicant's religion forms the basis of his refugee claim, it is open to the Board to inquire into that applicant's religious practices, if for no other reason than to test the applicant's credibility on the central element of the claim. In the circumstances, I find that it was open to the Board to find that the Applicant's religious activities in Canada are inconsistent with his evidence in respect to his religious activities in Indonesia, upon which he bases his claim. The Board's finding is not patently unreasonable. Further, this is not the basis upon which the Board dismissed the Applicant's claim.
[25] The Board foundthe credibility to be the determinative issue in this case. Initsreasons, the Board noted inconsistencies, contradictions and omissions in the Applicant's evidence. In particular the Board found that the only incident of persecution reported in his personal information form (PIF) was inconsistent with his oral testimony. The Board also noted that the Applicant omitted to mention in his PIF an incident that occurred in Jakarta in May 1998, where a colleague was killed because he was a Christian. The Applicant also gave conflicting evidence in attempting to explain his work history from 1998 to 2000. For the most part the Applicant does not take issue with the Board's findings in respect to these and other inconsistencies, contradictions and omissions in his evidence. In my view the Board's findings were reasonably open to it on the record.
[26] The Board further found that the Applicant's failure to claim refugee protection in the United States from September 2000 to March 2003 was not consistent with the actions of a person with a subjective fear of persecution in his country. The Board rejected the Applicant's explanations as to why he did not make a claim. I find that it was reasonably open to the Board, on the evidence, to conclude that the Applicant's failure to claim in the United States, undermines his alleged subjective fear and his overall credibility.
[27] In conclusion, I find the Board's credibility and plausibility determinations are not patently unreasonable and therefore are not subject to the intervention of this Court. I further find that the Board committed no reviewable error in dismissing the Applicant's refugee claim.
6. Conclusion
[28] For the above reasons the application for judicial review will be dismissed.
[29] The parties have had the opportunity to raise a serious question of general importance as contemplated by section 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and have not done so. I am satisfied that no serious question of general imortance arises on this record. I do not propose to certify a question.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is dismissed.
2. No question is certified.
"Edmond P. Blanchard"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-9951-04
STYLE OF CAUSE: Haryadi Prayogo v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 30, 2005
REASONS FOR ORDER BY: BLANCHARD, J.
DATED: November 7, 2005
APPEARANCES BY:
Mr. Gregory J. Willoughby For the Applicant
Mr. Alexis Singer For the Respondent
SOLICITORS OF RECORD:
McKenzie Lake For the Applicant
London, Ontario
John H. Sims, Q.C. For the Respondent
Deputy Attorney General of Canada
Toronto, Ontario