Date: 20070906
Docket: IMM-483-07
Citation: 2007 FC 889
Ottawa, Ontario, September 6,
2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
MANUEL
OSWALDO LOPEZ PINEDA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
OVERVIEW
[1]
When
the Refugee Protection Division of the Immigration and Refugee Board (Board)
does not find a claimant credible, it can extend this finding to his whole
claim. (Sheikh v. Canada (Minister of Employment and Immigration),
[1990] 3 F.C. 238 (F.C.A.), [1990] F.C.J. No. 604 (QL).)
INTRODUCTION
[2]
Mr.
Manuel Oswaldo Lopez Pineda, a citizen of Guatemala, filed an
application for leave and for judicial review with respect to a decision of the
Board rendered on December 13, 2006, which found that the Applicant is not a
Convention refugee, nor a person in need of protection.
BACKGROUND
[3]
Mr.
Pineda alleges that if he is returned to Guatemala, he faces
serious harm amounting to persecution at the hands of his former employer, Mr.
Mike Corser, an American who may have been involved in the murder of one of his
fellow co-workers.
THE DECISION UNDER
REVIEW
[4]
The
Board determined that the Applicant was not a Convention refugee because there
is no nexus between the present claim and any of the Convention grounds.
[5]
Moreover,
as the Applicant has not provided credible or trustworthy evidence, the Board
found that he is not a person in need of protection for risk to life or risk of
cruel and unusual treatment or punishment or danger of torture (decision, pp. 2
to 4). In obiter, the Board held that there was adequate State
protection in Guatemala and that the
Applicant had an internal flight alternative.
ANALYSIS
[6]
The
Board stated in clear and unmistakable terms, the valid reasons for which it found
that Mr. Pineda lacked credibility and doubted the veracity of his story, the
whole in accordance with Maldonado v. Canada (Minister of Employment and
Immigration), [1980] 2 F.C. 302 (F.C.A.).
[7]
Mr.
Pineda does not challenge the Board’s conclusion that he is not credible.
[8]
The
Board was entitled to find that the credibility of Mr. Pineda and his evidence
was undetermined since there were implausibilities, inconsistencies, and
discrepancies in his testimony and his Personal Information Form (PIF), in relation
to major elements or incidents alleged in support of his claim. (Mostajelin
v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 28
(QL) (F.C.A.); Aguebor v. Canada (Minister of Employment
and Immigration), [1993] F.C.J. No. 732 (QL) (F.C.A.).)
[9]
With
respect to the risk to life and risk of cruel and unusual treatment or
punishment, the panel did not believe that Mr. Pineda has provided credible or
even consistent evidence to support his allegations. Mr. Pineda’s allegations
center around events occurring between September 22 and 24, 2005, in Guatemala. There is
one principal incident which involves Mr. Pineda. Mr. Pineda himself was not
able to provide consistent evidence on what actually occurred on September 22.
[10]
Mr.
Pineda, in his PIF, writes that when he approached the vehicle, he saw a body
which may or may not have been dead. Mr. Pineda does not clearly state that he
would have been able to identify the body. According the Mr. Pineda’s PIF, it
would be the following day (September 23, 2005) when he would have heard that
the family of Benedicto had begun the search for him, that Mr. Pineda would
have made a link between the individual found in the car and Benedicto. Yet,
during the course of the testimony, Mr. Pineda clearly stated that when he
approached the car and looked in, he identified Benedicto. When confronted on
this contradiction, Mr. Pineda, had no explanation.
[11]
To
further compound this matter, Mr. Pineda produced an affidavit allegedly from
his father, which seeks to corroborate the Applicant’s evidence. Yet, the
affidavit clearly states that, according to his father, Mr. Pineda would have
been an eyewitness to the assassination of a fellow worker by the name of
Benedicto. This clearly presents a third scenario. In this instance, it appears
that Mr. Pineda would have actually seen the murder, which is not consistent
with either the story in his PIF, or with his testimony. When confronted on
these contradictions, Mr. Pineda attempted to nuance. In the panel’s mind,
there are three explanations for the same event and that affects the overall
credibility and believability of Mr. Pineda’s allegations.
[12]
Moreover,
Mr. Pineda’s father’s affidavit refers to extreme threats issued against the
Applicant that would have caused the death of his grandmother.
[13]
The
Board noted that Mr. Pineda did not mention in his PIF the death of his
grandmother and the fact that his grandmother received threats from his former
employer, subsequent to his departure.
[14]
It
is warranted for the Board to consider significant omissions in the PIF in
assessing a refugee claimant’s credibility. In Grinevich v. Canada (Minister of
Citizenship and Immigration), [1997] F.C.J. 444 (QL):
[4] …Where a refugee
claimant fails to mention important facts in his or her PIF, this may
legitimately be considered by the Board to be an omission that goes to lack of
credibility…
[15]
Similarly,
in Basseghi v. Canada (Minister of
Citizenship and Immigration), [1994] F.C.J. 1867 (QL), Justice
Max Teitelbaum noted that all important facts must be noted in the PIF
narrative.
[33] It is not incorrect
to say that answers given in a PIF should be brief but it is incorrect to say
that the answers should not be complete with all of the relevant facts. It is
not enough for an applicant to say that what he said in oral testimony was an
elaboration. All relevant and important facts should be included in one's
PIF. The oral evidence should go on to explain the information contained in the
PIF. (Emphasis added.)
[16]
Mr.
Pineda claims that the Board erred in concluding that the threats and attacks
made against him and his property were not sufficiently serious to constitute a
risk to his life.
[17]
This
comment of the Board is an obiter that does not affect the validity of
the decision since the Board concluded that Mr. Pineda’s story was not
credible.
[18]
When
the Board does not find a claimant credible, it can extend this finding to his
whole claim. (Sheikh, above.)
[19]
Mr.
Pineda also alleges that the Board erred in its assessment that he should have
availed himself of the protection of the Guatemalan State.
[20]
This
Court is satisfied that the Board’s conclusion with respect to Mr. Pineda’s
credibility was reasonable, the Board’s obiter with respect to State
protection in Guatemala does not alter its conclusion in respect of the
credibility assessment.
[21]
Indeed,
as was stated by the Federal Court of Appeal in Kumar v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 219 (QL), an erroneous
subsidiary conclusion does not vitiate a valid decision:
It
was the tribunal's duty to draw its own conclusions on the contradictions found
in the testimony, as it was also responsible for assessing the plausibility of
what was said. It did this in a way that does not require intervention by this
Court.
The
tribunal went on to undertake obiter an analysis of the situation of the Hindus
in India, and in the Punjab in particular, concluding that the applicant had
the possibility of internal refuge. This analysis was not necessary. Even if it
was mistaken or if it led the tribunal to exceed its jurisdiction - as to which
the Court makes no ruling - it could not vitiate an otherwise valid decision.
[22]
Moreover,
the Board found that Mr. Pineda had an internal flight alternative in Guatemala. This
finding is not challenged by Mr. Pineda. The Board stated, at page 4 of the
decision:
Finally, in the circumstances, the
claimant, by his own acknowledgement, lived and worked in a town that was some
distance away from the capital city. Is it not therefore logical for the
claimant to simply abandon his town, as he did, and move to the capital city in
order to restart his life? The panel, in the circumstances, believes that this
is a reasonable option.
CONCLUSION
[23]
For
all the above reasons, the application for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS that
1.
The application for judicial
review be dismissed;
2.
No serious question
of general importance be certified.
“Michel M.J. Shore”
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