Date: 20070515
Docket: IMM-4162-06
Citation: 2007 FC 515
Ottawa, Ontario, May 15th,
2007
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
WEIQUAN
PAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
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.
“Richard
G. Mosley”
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