Date: 19991026
Docket: IMM-4578-98
BETWEEN:
JUN XIANG MA
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMGIRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application for judicial review by Jun Xiang Ma (the applicant) of a decision made by members of the Convention Refugee Determination Division of the Immigration and Refugee Board (the Board), dated August 5, 1998.
[2] The applicant, a citizen of China, claims to be a Convention refugee by reason of his fear of persecution in China because of his perceived political opinions and his membership in a particular social group, that being his family, his muslim beliefs; as well that his brother created serious problems which affected his safety.
[3] The Board found that the applicant was not credible with respect to essential elements of his evidence, and thus, found that he was not a Convention refugee.
[4] The applicant was born and lived in Shanghai, China, until he left for Canada in March, 1997. He testified that he supported the formation of an independent Muslim state in Xinjiang, a province in Western China. He alleged that he was arrested on December 20, 1995 because of his involvement in the Muslim separatist movement, duirng which time he was interrogated, tortured and released after fifteen days of incarceration.
[5] In February, 1996, the applicant's brother left China for Canada. The brother had been involved in supporting the work of Dr. Zhang who had published information regarding the neglect and abuse in Chinese orphanages. Dr. Zhang had to leave China but, before her departure, she allegedly gave documents to the applicant's brother for safekeeping. After his brother's departure, the applicant testified that he was arrested and detained eighteen to twenty times and on each of these occasions the Chinese authorities asked him questions regarding Dr. Zhang materials which were left with his brother for safekeeping.
[6] The applicant testified that he had serous concerns regarding his safety and feared that he would be incarcerated for a long period of time due to the association with his brother who had assisted Dr. Zhang.
[7] The applicant submits that Dr. Zhang's letter, which constituted objective evidence, was not properly taken into account or addressed by the Board who did not give it its due weight.
[8] The applicant alleges that the Board erred when it stated that Chinese authorities never searched the applicant's home and only detained his mother, rather than both parents. He claims that these errors are central to the Board's finding that the applicant's fear of persecution was fabricated. He argues that the errors go to the heart of an essential element of the applicant's fears. He explains that the Board did not make an overall finding of negative credibility applicable to all of his evidence.
[9] In response to the applicant's submissions, the respondent alleges that the Board did find the applicant's testimony completely unreliable and that a review of the Board's decision clearly reveals that all the evidence was considered.
[10] The respondent acknowledges that the Board erred in finding that the Chinese authorities did not search his house, but stresses that it is not a reviewable error and was not central to the final determination.
[11] The Board considered all of the evidence and found that the applicant was not a credible witness with respect to essential elements of his evidence. As a result, the Board held that the applicant did not have a well-founded fear of persecution.
[12] In Canadian Union of Public Employee, Local 301 v. Montreal [1977] 1 S.C.R. 793, L'Heureux-Dubé J. stated at p. 844:
| We must remember that the standard of review on the factual findings of an administration tribunal is an extremely deferent one. Courts must not revisit the facts or weight the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal's findings will a fact finding be patently unreasonable. |
[13] Therefore, regarding the applicant's submission that the letter of Dr. Zhang was not properly taken into consideration, it seems well established that the Courts do not have to "reweight" the evidence. It seems proper to stress that the Federal Court is not in a position to reevaluate the importance of one element of evidence.
[14] Indeed, Courts can only intervene when a decision is patently unreasonable, when there is an error of law or where procedural requirements have not been respected; see Grygorian v. Canada [1996] F.C.A.D. 1486-01.
[15] Furthermore, in the decision Vessaova v. Canada [1996] F.C.A.D. 1598-04, it was affirmed that "the Immigration and Refugee Board has full discretion with respect to the analysis of credibility of witnesses and claimants who appear before it". In that case it is further stated that a decision should not be "subject to microsopic examination nor should particular statements in the decision be subject to a semantic autopsy".
[16] The Board found the applicant was inconsistent in his testimony and that his overall story was not credible, especially with regard to the "essential elements". In Rajaratnam v. Canada (1991) 135 N.R. 300 (F.C.A.), the Court summarized the guidelines to be followed when assessing findings of credibility by administrative tribunals:
| If it is apparent that a decision of the Board was based on the claimant's credibility, pure and simple, and this assessment was properly arrived at, no basis in law would exist for interference by this Court. Contradictions or discrepancies in the evidence of a refugee claimant is a well-accepted basis for a finding of lack of credibility. |
[17] In Aguebor v. Canada (1993) F.C.S. No. 732, the Court held that:
| As long as the inferences drawn by the tribunal are not su unreasonable as to warrant our intervention, its findings are not open to judicial review. |
[18] It is clearly established that the Court should not intervene when tribunals find a lack of credibility. Based on the evidence presented and the material filed by the applicant, it appears that the Board's decision cannot be said to be unreasonable. Accordingly, the applicant for judicial review is dismissed.
JUDGE
OTTAWA, Ontario
October 26, 1999