Date: 20110524
Docket: IMM-5133-10
Citation: 2011 FC 579
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Ottawa, Ontario, May
24, 2011
PRESENT: The
Honourable Mr. Justice Pinard
BETWEEN:
PIERO
KLEBERTH MATOS QUINTANA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a decision by
a member of the Refugee Protection Division of the Immigration and Refugee
Board (panel) submitted in accordance with subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act), by Piero Kleberth
Matos Quintana (applicant). The panel found that the applicant was not a refugee or a person in need of protection and
therefore rejected his refugee claim.
[2]
The
applicant is a citizen of Peru. He was born on January 30, 1991, and was living
in Lima. His parents still live in Lima, but his sister and his two brothers
live in Canada and arrived here before he did, as refugees.
[3]
The panel
found that the applicant was not credible because of important omissions and
contradictions between his testimony and an exhibit submitted into evidence,
namely, a Peruvian newspaper article dated January 18, 2008. Because only an excerpt
of the article had originally been translated, the rest was translated orally
during the hearing. Omissions and contradictions led the panel to believe that
the applicant had not been present for the event at the heart of his claim.
[4]
The
panel also found that the fact that the applicant never sought asylum in the
United States during his stay there, which was close to three months,
undermined his credibility. It found that the applicant had invented his story
in order to come to Canada and join his family after his two visa applications
had been refused.
[5]
The
only issue is whether the panel’s decision is reasonable. In fact, the standard
of review applicable to credibility findings is reasonableness. At paragraph 47
of Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, the Supreme Court of
Canada noted that “ . . . reasonableness
is concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law.”
[6]
After
reviewing the evidence and hearing counsel for the parties, the panel’s
findings with respect to the contradictions and omissions attributed to the
applicant seem generally reasonable. It is clear that the panel was entitled to
compare the applicant’s testimony to the information in the newspaper article
in question.
The fact that the panel did not interpret this article in the same way as the
applicant is not an error in itself.
[7]
I
therefore agree with the respondent that, given the obvious lack of credibility
with respect to the claim’s central event, it was not unreasonable for the
panel to attach no probative value to the exhibits submitted by the applicant. To
this end, it is important to reproduce the following excerpt from the decision
I rendered in docket IMM-3590-95, Satinder Pal Singh v. The Minister of
Citizenship and Immigration of Canada, on October 18, 1996:
. . . As the Federal Court of Appeal held in Sheikh v. Canada,
[1990] 3 F.C. 238, 244, the perception that an
applicant is not credible on a fundamental element of his claim in fact amounts
to a finding that there is no credible evidence sufficient to justify the
refugee claim in question.
[8]
In particular,
there is nothing unreasonable with the way the abduction report and the psychological
report were dealt with. The panel was entitled to interpret them as it did. The
same can be said for the two reports without letterhead or coat of arms, as the
panel noted that it had specialized knowledge of Peruvian documents and that
the documents did not possess these elements. With respect to the applicant’s
two police notices to appear, even though the panel did not find that they were
not authentic, I do not find its decision to attach no probative value to them
unreasonable. The notices to appear are short and merely state that the
applicant must present himself at the police station to answer questions about
the murder. I do not find, as alleged by the applicant, that these documents
necessarily prove that he was present at the murder.
[9]
I further
find that it was not unreasonable for the panel to find that the applicant’s
failure to claim asylum in the United States, where he stayed from April 15 to
June 20, 2008, and for which he had a 5-year visa, could be used to undermine
his credibility.
[10] For all of these
reasons, the application for judicial review is dismissed.
[11] I agree with counsel for
the parties that this is not a case for certification.
JUDGMENT
The
application for judicial review of a decision by a member of the Refugee
Protection Division of the Immigration and Refugee Board that the applicant was
not a refugee or a person in need of protection according to sections 96 and 97
of the Immigration and Refugee Protection Act, S.C. 2001, c. 21, is dismissed.
“Yvon
Pinard”
Certified
true translation
Janine
Anderson, Translator
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5133-10
STYLE OF CAUSE: PIERO KLEBERTH MATOS QUINTANA v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE
OF HEARING: Montréal, Quebec
DATE
OF HEARING: April 14, 2011
REASONS
FOR JUDGMENT
AND
JUDGMENT: Pinard
J.
DATED: May 24, 2011
APPEARANCES:
Claudette Menghile FOR
THE APPLICANT
Margarita Tzavelakos FOR
THE RESPONDENT
SOLICITORS
OF RECORD:
Claudette
Menghile FOR
THE APPLICANT
Montréal,
Quebec
Myles
J. Kirvan FOR
THE RESPONDENT
Deputy
Attorney General of Canada
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