Date: 20101217
Docket: IMM-1528-10
Citation: 2010
FC 1297
Toronto, Ontario, December 17, 2010
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
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GABRIEL OMAR OCHOA GALEANO
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
The
present Application concerns a decision of a Member of the Refugee Protection
Division (RPD) in which the Applicant’s claim for protection is dismissed on a
global negative credibility finding. The Applicant is a citizen of Colombia and bases his claim on fear
of FARC in Columbia. The negative credibility
finding is based on the Applicant’s conduct in failing to seek protection in
Spain and the United
States, being
countries in which he could have made such a claim after leaving Colombia.
[2]
The
essential facts with respect to the Applicant’s claim are quoted at paragraph 3
of the decision as follows:
The claimant found out that
inventories from one of the farms owned by his employer were missing and the
local manager was giving those to the FARC. He reported the mailer to his
employer and several employees were let go by the employer. The claimant
started receiving threats in early 2001. He resigned and left Colombia in April
2001 and went to Spain. He returned to Colombia in June 2002 and started to
work for the municipal government in tax collection. He received threats due to
this work and went to USA in March 2004. He entered
into a marriage of convenience in August 2005 in USA. After this sponsorship was denied, he
came to Canada in August 2009 and claimed
protection after about a week.
[3]
While the
RPD Member found that the Applicant failed to provide clear and convincing
evidence that Colombia is unable to provide adequate
state protection, I find that the key finding in the decision under review is
fully described in the following paragraphs of the decision:
[12] Alternate analysis —
credibility: I find that the claimant is not a credible witness and therefore his
claim must fail.
[13] Maldonado
[Footnote: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.)] guides
us that the testimony of the claimant given under oath or affirmation is
presumed to be truthful unless there are reasons to doubt. Evidence,
particularly evidence offered in the form of personal testimony, must be
believable, consistent and sufficiently detailed to provide plausible and
coherent account for the basis for the claim.
[14] Failure to claim -Spain: The claimant went to Spain after allegedly receiving threats from
the FARC. A person fleeing persecution is expected to claim protection in the
first safe refuge. The claimant was in Spain for nearly 14 months and did not
report to the authorities that he was afraid to return to Colombia. Spain is a signatory to the convention [sic].
Moreover, Spain allows nationals from Colombia to acquire citizenship after
two years of stay (five years for others). The claimant’s failure to seek
asylum in Spain or take other steps to become
a citizen for a few more months leads me to find that he lacked the subjective
fear, therefore, a well-founded fear of persecution.
[15] Re-availment: the
claimant returned voluntarily to Colombia
believing that it was safe for him to return after 14 months outside of the
country. This shows that he lacked subjective fear.
[16] Failure to claim-USA: The
claimant was in USA for more than 5 years and yet
he did not seek asylum. In explanation, he testified, “Because I did not want
to be returned (to Colombia)”. His visitor visa allowed
him to stay until September 22, 2004. Instead of seeking legal advice or
informing the authorities of his alleged fear of return to Colombia, he entered into an illegal
marriage of convenience in August 2005 and filed for sponsorship in 2006. The
American authorities rejected his application and noted, “You entered into a
marriage to a United
States citizen
for the sole purpose of evading immigration laws” (exhibit C2 at p 6). His
failure to seek asylum leads me to find that he lacked a well-founded fear of
persecution.
[17] The claimant was
scheduled to a Master hearing’ before the immigration court on September 10,
2009 (Exhibit C 2 page 8). He decided to leave the United States prior to conclusion of his immigration
hearings. Canadian jurisprudence states that leaving prior to conclusion is
detrimental to the claim) [Footnote: Bains, Gurmukh Singh v. M.C.I.
(F.C.T.D., No. IMM-3698-98), Blais, April 21, 1999)].
[18] Based on the foregoing, I
find that the claimant is not credible. And his claim fails.
[4]
I am
satisfied that the finding made at paragraph 18 of the decision is intended by
the RPD Member to be an all encompassing finding which applies to the entirety
of the Applicant’s claim. In my opinion, this is a conclusion that the Member
was entitled to reach (see: Guarin Caicedo v. Canada (M.C.I.), 2010 FC
1092 at para. 21). I find that the decision falls within a range of possible
acceptable outcomes which are defensible in respect of the facts and law (New Brunswick (Board of Management) v.
Dunsmuir,
[2008] 1 S.C.R. 190).
ORDER
THIS COURT ORDERS that:
1. The present
Application is dismissed.
2. There is no
question to certify.
“Douglas
R. Campbell”
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