Date: 20091030
Docket: IMM-1794-09
Citation: 2009 FC 1098
Ottawa, Ontario, October
30, 2009
PRESENT: The Honourable
Mr. Jusice Pinard
BETWEEN:
SANCHEZ
JIMENEZ, Yolanda
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION OF CANADA
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. (2001), c. 27, of a decision dated March
16, 2009, by the Refugee Protection Division (RPD) of the Immigration and
Refugee Board, that the applicant is not a Convention refugee.
[2]
Yolanda
Sanchez Jimenez (the applicant) is a Mexican citizen and mother of two
daughters. She claimed refugee protection on grounds of membership in a
specific social group, namely, women who are victims of conjugal violence. She
alleges that she is being persecuted by her former spouse, Mariano Castillo
Robles.
[3]
The
decision is based essentially on the applicant’s lack of credibility. The RPD
found that she did not discharge her burden of proof, and therefore did not
establish her fear of persecution under a Convention ground. The panel also
found that she had failed to show, on a balance of probabilities, that if she
returned to Mexico, she would
be subjected to a risk of cruel and unusual treatment or punishment.
[4]
The
RPD found the applicant’s testimony to be vague and imprecise, riddled with
inconsistencies, and that it also contained omissions and implausibilities. The
panel therefore found her not to be credible.
[5]
Later,
in a letter dated August 14, 2009, the panel wrote:
[translation]
Unfortunately, due to reasons beyond our
control, it is impossible for us to send you a copy of the transcript of the hearing
of February 13, 2009, in this record.
[6]
Relying
mainly on Likele v. Canada (M.C.I.), [1999] F.C.J No. 1693
(F.C.T.D.) (QL), the applicant contends, first, that there was a breach of
natural justice due to the fact that a transcript of the hearing before the
panel was not available. As a result, the applicant claims she cannot present
all of her arguments regarding this application for judicial review. I do not
agree. Paragraph 17(d) of the Federal Courts Immigration and Refugee
Protection Rules, SOR/93-22, imposes no obligation on the panel
to prepare
a transcript:
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17. Upon receipt of an order
under Rule 15, a tribunal shall, without delay, prepare a record containing
the following, on consecutively numbered pages and in the following order:
(d)
a transcript, if any, of any oral testimony given during the hearing, giving
rise to the decision or order or other matter that is the subject of the
application for judicial review,
and shall send
a copy, duly certified by an appropriate officer to be correct, to each of
the parties and two copies to the Registry.
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17. Dès
réception de l’ordonnance visée à la règle 15, le tribunal administratif
constitue un dossier composé des pièces suivantes, disposées dans l’ordre
suivant sur des pages numérotées consécutivement :
d) la transcription, s’il y a lieu, de
tout témoignage donné de vive voix à l’audition qui a abouti à la décision, à
l’ordonnance, à la mesure ou à la question visée par la demande de contrôle
judiciaire,
dont
il envoie à chacune des parties une copie certifiée conforme par un
fonctionnaire compétent et au greffe deux copies de ces documents.
|
[7]
Madam
Justice L’Heureux-Dubé acknowledged, on behalf of the Supreme Court of Canada
in Canadian Union of Public Employees, Local
301 v. Montreal (City), [1997] 1
S.C.R. 793, that the unavailability of a transcript could, under certain
circumstances, injure the applicant with respect to his or her capacity to make
an application for judicial review, and that this injury was a breach of
natural justice when the decision facing the Court could not be made on the
basis of evidence established through other means. In this respect, the Supreme
Court wrote the following at page 842:
In the absence of a
statutory right to a recording, courts must determine whether the record
before it allows it to properly dispose of the application for appeal or
review. If so, the absence of a transcript will not violate the rules of
natural justice. Where the statute does mandate a recording, however, natural
justice may require a transcript. As such a recording need not be perfect to
ensure the fairness of the proceedings, defects or gaps in the transcript must
be shown to raise a ‘‘serious possibility’’ of the denial of a ground of
appeal or review before a new hearing will be ordered. These principles ensure
the fairness of the administrative decision-making process while recognizing
the need for flexibility in applying these concepts in the administrative
context.
(Emphasis added.)
See also: Goodman v. Canada (M.C.I.), [2000] F.C.J.
No. 342 (F.C.T.D.) (QL), at paragraphs 67 to 71, and the recent ruling by my
colleague Justice Richard Boivin in Navjot Singh v. The Minister of
Citizenship and Immigration, 2009 FC 911.
[8]
Courts
must therefore determine ‘‘whether the record before it allows it to properly
dispose of the application for appeal or review’’. If so, the absence of a transcript
‘‘will not violate the rules of natural justice’’ (Canadian Union of Public
Employees, Local 301, above).
[9]
In
this case I note that the RPD’s reasons often consist of a summary of the
applicant’s testimony. Moreover, she herself never stated in her affidavit that
the panel had not accurately reported her testimony in its reasons and had, as
a result, erred regarding its negative credibility finding.
[10] I therefore
conclude that the absence of a transcript, under the circumstances, is not a
barrier and that there has been no breach of natural justice.
[11] The applicant
then disputes the RPD’s assessment of her credibility. With respect to
credibility and the assessment of the facts, a proper analysis of the panel’s
decision will show ‘‘the existence of
justification, transparency and intelligibility within the decision-making
process [and] whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law’’ (Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, at
paragraph 47). The Supreme Court stated in Canada (Minister of
Citizenship and Immigration) v. Khosa, 2009 SCC 12, at paragraph 58: ‘‘The IAD had the
advantage of conducting the hearings and assessing the evidence presented,
including the evidence of the respondent himself.’’ Consequently, the
applicable standard of review is reasonableness.
[12] A heavy burden lies on the applicant to rebut the panel’s
finding that she lacks credibility (Aguebor v. Canada
(M.E.I.) (1993), 160 N.R. 315 (F.C.A.)).
The
panel is entitled to make reasonable findings based on implausibilities, common
sense and rationality.
[13] In the case
at bar, after reviewing the evidence and hearing counsel for the parties, I am
not satisfied, in light of all these principles and analytical criteria, that
the intervention of the Court is warranted. While in some respects my
conclusion may have been different, it is not for this Court to substitute
itself for a specialized tribunal such as the RPD in the assessment of
credibility and of the facts, when, as in this case, the applicant has failed
to show that the panel made its decision based on an erroneous finding of fact,
made in a perverse or capricious manner or without regard for the material
before it (see Khosa, above).
[14] For all of
these reasons, the application for judicial review is dismissed.
JUDGMENT
The
application for judicial review of the decision dated March 16, 2009, by the
Refugee Protection Division of the Immigration and Refugee Board is dismissed.
‘‘Yvon
Pinard’’
Certified
true translation,
Sebastian
Desbarats, Translator
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