Ottawa, Ontario, May 15th, 2007
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The applicant is a 42-year-old married, male citizen of the People’s Republic of China who sought refugee protection in Canada on the ground that he feared persecution in China by reason of his Christian faith. On July 4, 2006 the applicant was found by the Refugee Protection Division of the Immigration and Refugee Board (the “Board”), not to be a Convention refugee or a person in need of protection.
[2] The Board determined that the applicant was not credible and, on a balance of probabilities, was not a Christian and had not been a Christian in China where he claimed to have practiced in a house church and was at risk of being arrested by the Public Security Bureau. These findings stemmed from a number of concerns about the applicant’s evidence, notably: his answers to questions about his knowledge of Christianity; the implausibility of his conversion in the circumstances as he described them; and the member’s belief that the applicant had memorized the narrative of his personal information form and recited it when prompted at the hearing.
[3] The applicant sought and obtained leave for judicial review as an in person litigant. The hearing date was fixed on February 16, 2007. The record before the court was complete including documentary evidence and written representations. On Tuesday, May 8, 2007, the day before the scheduled hearing date, the Registry was informed that the applicant wished to be represented by an agent. The Registry was instructed to inform the applicant that the Rules did not permit him to be represented by an agent.
[4] On Wednesday, May 9, 2007, the scheduled hearing date, the applicant did not appear at the time fixed for the hearing. Some fifteen minutes later, a solicitor arrived who stated that he had just been retained and was requesting an adjournment. The request was refused and the solicitor was required to proceed to represent the applicant on the basis of the record submitted. In the circumstances, counsel for the respondent was also asked as an officer of the court to highlight any errors she may have identified in the decision under review.
[5] The sole issue was whether the Board erred in making an erroneous finding of fact in relation to the applicant’s credibility.
[6] It is well established that the standard of review in this context is patent unreasonableness: Chowdhury v. Canada (Minister of Citizenship and Immigration), 2006 FC 139 at para. 12; Martinez v. Canada (Minister of Citizenship and Immigration), 2006 FC 403 at para. 13. To challenge the findings with respect to the applicant’s credibility, the applicant must demonstrate that the findings of the Board are erroneous in that they are made in a perverse or capricious manner or without regard for the evidence: Federal Courts Act, R.S.C. 1985, c. F-7 section 18.1(4)(d).
[7] The Supreme Court of Canada has held that assessments of credibility are “quintessentially findings of fact” and that tribunals should be afforded greater deference because they enjoy a relative advantage of hearing the viva voce evidence: Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 at paragraph 38.
[8] As was recently stated by the Supreme Court of Canada, “in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected”: R v. Gagnon, 2006 SCC 17 at para. 20. In this context, it was open to the Board to take issue with the candour and manner in which the applicant’s testimony was delivered and to find that the PIF narrative was being “recited” or had been memorized.
[9] It was also open to the Board to find it implausible that the applicant had not known that his trucking partner, a friend for many years, was a Christian until they experienced a near accident and that this incident led the applicant to seek out other adherents to the faith. Similarly, the Board’s finding that the applicant’s knowledge of Christian principles did not support his claim was not patently unreasonable. The lack of corroborating documentary evidence from China was a relevant factor although the Board member properly did not rely upon this in making his adverse credibility finding. However, it was also open to the Board not to put much weight on the documentary evidence of the applicant’s baptism and attendance at Christian churches in this country.
[10] The Board erred in finding that the claimed conversion was implausible because of the applicant’s age. The history of the Christian church is replete with examples of late vocations and there is no reason to believe that such is unlikely today even in the sterile ground of the People’s Republic. However, while one might microscopically dissect and criticize aspects of the member’s reasons, his determination that the applicant lacked credibility was not perverse or capricious nor made without regard to the evidence. The decision is not “…so flawed that no amount of curial deference can justify letting it stand”: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at para. 52.
[11] Accordingly, the application is dismissed. No serious questions of general importance were proposed.
JUDGMENT
THIS COURT ORDERS THAT: The application is dismissed. No questions are certified.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4162-06
STYLE OF CAUSE: WEIQUAN PAN
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
REASONS FOR JUDGMENT: MOSLEY J.
APPEARANCES:
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Steven Kaminker
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Catherine Vasilaros
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SOLICITORS OF RECORD:
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STEVEN KAMINKER Barrister and Solicitor Toronto, Ontario
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JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario
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