Date: 20050201
Docket: IMM-1825-04
Citation: 2005 FC 132
BETWEEN:
Rafael Lim CHING
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board) dated February 2, 2004, that the applicant is not a Convention refugee or a person in need of protection under sections 96 and 97, respectively, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act).
[2] Rafael Lim Ching (the applicant) is a Catholic born in the Philippines and is of Chinese descent. He is stateless and claimed refugee status for reasons of his race, religion, membership in a particular social group and perceived political opinions. He alleges that it is impossible to obtain Philippine and Chinese citizenship, because the Chinese authorities do not grant citizenship to Chinese born outside the country. He was also threatened by Muslims.
[3] The Board hearing was scheduled for December 5, 2003. On December 2, 2003, the applicant applied for an adjournment, because he had been hospitalized from October 4 to 10, 2003, and submitted a doctor's letter stating that the applicant should have a more in-depth examination to better determine his state of health. The panel rejected the adjournment request, and the hearing was held as planned.
[4] The relevant provision of the Refugee Protection Division Rules, SOR/2002-228 (the Rules) is as follows:
| 48. (4) In deciding the application, the Division must consider any relevant factors, including
(a) in the case of a date and time that was fixed after the Division consulted or tried to consult the party, any exceptional circumstances for allowing the application;
(b) when the party made the application;
(c) the time the party has had to prepare for the proceeding;
(d) the efforts made by the party to be ready to start or continue the proceeding;
(e) in the case of a party who wants more time to obtain information in support of the party's arguments, the ability of the Division to proceed in the absence of that information without causing an injustice;
(f) whether the party has counsel;
(g) the knowledge and experience of any counsel who represents the party;
(h) any previous delays and the reasons for them;
(i) whether the date and time fixed were peremptory;
(j) whether allowing the application would unreasonably delay the proceedings or likely cause an injustice; and
(k) the nature and complexity of the matter to be heard.
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48. (4) Pour statuer sur la demande, la Section prend en considération tout élément pertinent. Elle examine notamment :
a) dans le cas où elle a fixé la date et l'heure de la procédure après avoir consulté ou tenté de consulter la partie, toute circonstance exceptionnelle qui justifie le changement;
b) le moment auquel la demande a été faite;
c) le temps dont la partie a disposé pour se préparer;
d) les efforts qu'elle a faits pour être prête à commencer ou à poursuivre la procédure;
e) dans le cas où la partie a besoin d'un délai supplémentaire pour obtenir des renseignements appuyant ses arguments, la possibilité d'aller de l'avant en l'absence de ces renseignements sans causer une injustice;
f) si la partie est représentée;
g) dans le cas où la partie est représentée, les connaissances et l'expérience de son conseil;
h) tout report antérieur et sa justification;
i) si la date et l'heure qui avaient été fixées étaient péremptoires;
j) si le fait d'accueillir la demande ralentirait l'affaire de manière déraisonnable ou causerait vraisemblablement une injustice;
k) la nature et la complexité de l'affaire.
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[5] The relevant provision of the Act reads as follows:
| 162. (2) Each Division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit.
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162. (2) Chacune des sections fonctionne, dans la mesure où les circonstances et les considérations d'équité et de justice naturelle le permettent, sans formalisme et avec célérité.
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[6] This case raises two issues:
1. Did the Board err in refusing to adjourn the hearing of December 5, 2003?
2. Did the Board err in finding that the applicant is not a Convention refugee or a person in need of protection within the meaning of sections 96 and 97, respectively, of the Act?
[7] With regard to the first issue, it is important to point out that the applicant waited almost two months after his hospital stay to ask for the adjournment. The request was made three days before the scheduled hearing, and the Board had the right to take this into account (paragraph 48(4)(b) of the Rules). The applicant could have asked for the adjournment during or immediately after his hospital stay, which could have enabled him to get an appointment with a specialist earlier. At any rate, the hearing could go ahead without the specialist's report. The doctor's letter basically indicates that, because of his respiratory ailment, the applicant should have a more in-depth examination to better determine his state of health. The letter does not confirm that the applicant was unable to testify or that there was a serious possibility he had neurological or psychiatric problems.
[8] The panel must deal with proceedings as quickly as the circumstances and the considerations of fairness and natural justice permit (subsection 162(2) of the Act). In Vairamuthu v. Canada (M.E.I.) (1993), 161 N.R. 131, the Federal Court of Appeal ruled that:
For a court of review to be able to criticize a tribunal for having denied a request for adjournment, it must be clear that in the circumstances of the case a breach of natural justice or fairness has resulted from the decision.
[9] There was no breach of natural justice or fairness in this case. The applicant was not prevented from obtaining a neurological or psychiatric evaluation between October 10 and the date of the hearing, and he could have asked the Board whether he could submit a report after the hearing. When the applicant repeated his request for an adjournment at the beginning of the hearing of December 3, 2003, the panel stated, at page 0285 of the panel's record: "I don't have more evidence to overrule the decision taken. I think the hearing should continue. If, in the process of the hearing, we notice that there are some difficulties in understanding even the proceedings - I have to asses (sic) that as well - we can re-evaluate. . . . I don't have a clear, a conclusive medical report or psychological report stating that this person has any... that he is not... he has any problems that will affect his capacity to testify".
[10] At the beginning of the hearing, the applicant said, "My thought processes are slow. I'm confused". Regardless, he was able to answer general questions. He understood why he was there and answered yes when he was asked whether he would be able to tell his story. The panel gave him the choice to answer in English or Tagalong. The Board member also told him that if he did not understand the questions, he did not have to answer, and that if he needed a break, he only had to say so and he would get one.
[11] In this context, I am not persuaded that the Board erred in refusing the adjournment.
[12] With regard to the second issue, there are many contradictions in the applicant's testimony. He alleges that he did not obtain his citizenship in the Philippines because the authorities wanted thousands of pesos and he did not have the money. According to the law, however, applying for citizenship costs 30 pesos, and appeals before the Supreme Court cost 24 pesos.
[13] Furthermore, the applicant was unable to explain why, at first, he said he had applied for citizenship in 1986, whereas later he testified he had applied in 1996. Likewise, he did not provide an explanation why, when he testified, he could not remember various incidents described in his Personal Information Form (PIF).
[14] The basis of the applicant's claim is a fear of Muslims. He testified that he had problems only at school, but also added he had been assaulted by some Muslims in 1990. He never mentioned the assault in his PIF. Confronted with this, he said he had forgotten to mention it. The applicant also contradicted himself when he said he did not know if his wife had recognized the assailants and then later said she had told him that one of them was a cousin.
[15] Under the circumstances, the applicant has not convinced me that the Board's finding of fact was erroneous or made in a perverse or capricious manner or without regard for the material before it. It is well established that this specialized tribunal has the jurisdiction to assess the plausibility and credibility of testimony, provided the inferences that it draws are not unreasonable and its reasons are set out in a clear and understandable way [see Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.) and Hilo v. Canada (M.E.I.) (1991), 15 Imm.L.R. (2d) 199 (F.C.A.)].
[16] For these reasons, the application for judicial review is dismissed.
______________________________
JUDGE
OTTAWA, ONTARIO
February 1, 2005
Certified true translation
Jason Oettel
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