Date: 20070412
Docket: IMM-3283-06
Citation: 2007 FC 382
Montréal, Quebec, the 12th day of April 2007
Present:
the Honourable Mr. Justice Martineau
BETWEEN:
JESUS
ANTONIO ROSAS CARRASCO
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
applicant is challenging the legality of the decision by the Refugee Protection
Division (the RPD) of the Immigration and
Refuge Board (the panel) on April 26, 2006 concluding that the applicant is not
a refugee or a person in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act).
[2]
The
applicant is a citizen of Mexico who says he fears persecution
on account of his membership in a particular social group, namely homosexuals.
In the impugned decision the panel decided that there was no basis for allowing
the protection application because even if the facts alleged by the applicant
constituted discrimination, they did not reach the level of persecution, the applicant’s
past conduct was inconsistent with that of a person who had a real fear of
persecution and there was a possibility of internal flight to Mexico City.
[3]
At the
hearing of the instant application for review counsel for the applicant
acknowledged that the reasons given by the panel generally supported its
conclusions, and that the latter were not prima facie patently
unreasonable. Nevertheless, the applicant maintained that the tape of the
hearing before the panel could not be found and it was now impossible for the
Court to determine whether the panel’s conclusions were based on the evidence.
Consequently, the applicant submitted that on this ground alone the Court
should quash the panel’s decision so that a new hearing could be held by
another member of the RPD.
[4]
As there
is no right to a tape recording expressly recognized by law, the lack of
transcripts does not in itself constitute a basis for quashing the decision of
an administrative tribunal. Rather, the Court must determine in each case
whether the record as presented by the parties allows it to properly dispose of
the application for review (Canadian Union of Public Employees, Local 301,
[1997] 1 S.C.R. 793, at para. 81; Kandiah v. Canada (Minister of
Citizenship and Immigration), [1992] F.C.J. No. 321 (F.C.A.)). For example,
it has already been held that the absence of transcripts may prevent the Court
from properly disposing of an application for judicial review where the
credibility of the applicant is in question (Gokpinar v. Canada (Minister of Citizenship and
Immigration),
2004 FC 1065, at para. 10).
[5]
After
reviewing the panel’s record as a whole and the detailed affidavit of the
applicant, I consider that despite the absence of transcripts the record at
present before the Court allows me to properly dispose of the application for
review.
[6]
In the
case at bar, the applicant’s credibility is not in question, nor was it alleged
that the panel failed to observe any principle of procedural fairness at the
hearing. Additionally, I do not think it is necessary to have the transcripts
of the hearing here to decide whether the panel’s decision was unreasonable.
[7]
I note
that the panel’s conclusion regarding an internal flight alternative is based
on documentary evidence in the record and is a determining aspect of the
panel’s refusal to allow the applicant’s application for refugee status. It is
for the applicant to show the panel that he is seriously in danger of being
persecuted throughout the country, including Mexico City (Thirunavukkarasu v. Canada (Minister
of Employment and Immigration), [1993] F.C.J. No. 1172, at para. 5 (F.C.A.)).
It further appeared from the reasons that the panel considered the applicant’s
testimony and rejected his suggestion he would probably be just as much at risk
in Mexico City as in his home town. Finally,
the affidavit filed in support of the application for review at bar does not
provide any material pertaining to the applicant’s personal situation that
would be likely to affect the validity of the panel’s general reasoning.
[8]
In all
respects, the applicant did not persuade the Court that the panel made a
reviewable error, whether with regard to the absence of persecution, the
absence of a subjective fear or the possibility of an internal flight
alternative, and I concur entirely with the respondent’s argument that the
application at bar is without foundation.
[9]
For all
these reasons, the application for judicial review is dismissed. No question of
general importance was raised by the parties and none arises in the case at
bar.
ORDER
THE COURT ORDERS THAT:
-
The
application for judicial review is dismissed;
-
No question
is certified.
“Luc
Martineau”
Certified
true translation
Brian
McCordick, Translator
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