Date: 20100721
Docket: IMM-5804-09
Citation: 2010 FC 768
Toronto, Ontario, July 21,
2010
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
CARLOS
ALBERTO TALAVERA MORALES
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY
PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The Immigration
Division of the Immigration and Refugee Board concluded that Carlos Alberto
Talavera Morales was inadmissible to Canada pursuant to paragraph 37(1)(a) of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27, on the
grounds that he was a member of a criminal organization.
[2]
Mr. Talavera seeks
judicial review of the Immigration Division’s decision, asserting that the
Board erred in its interpretation of the evidence, in its assessment of his
credibility, and in its understanding of the concept of “membership” as it
related to his involvement with the “Los Zetas” gang in Mexico.
[3]
For the reasons that
follow, I am satisfied that the Board did not err as alleged, and that its
inadmissibility finding was one that was reasonably open to it on the record
before it. As a consequence, the application for judicial review will be
dismissed.
The
Legislative Authority for the Decision
[4]
Before turning to
examine the arguments advanced by Mr. Talavera, it is helpful to first review
the legislative framework governing inadmissibility findings such as this.
[5]
The inadmissibility
finding in this case was made pursuant to paragraph 37(1)(a) of the Immigration
and Refugee Protection Act, which provides that:
|
37. (1) A permanent resident or
a foreign national is inadmissible on grounds of organized criminality for
(a) being a member of an organization
that is believed on reasonable grounds to be or to have been engaged in
activity that is part of a pattern of criminal activity planned and organized
by a number of persons acting in concert in furtherance of the commission of
an offence punishable under an Act of Parliament by way of indictment, or in
furtherance of the commission of an offence outside Canada that, if committed
in Canada, would constitute such an offence, or engaging in activity that is
part of such a pattern …
|
37. (1) Emportent
interdiction de territoire pour criminalité organisée les faits suivants :
a) être membre d’une
organisation dont il y a des motifs raisonnables de croire qu’elle se livre
ou s’est livrée à des activités faisant partie d’un plan d’activités
criminelles organisées par plusieurs personnes agissant de concert en vue de
la perpétration d’une infraction à une loi fédérale punissable par mise en
accusation ou de la perpétration, hors du Canada, d’une infraction qui,
commise au Canada, constituerait une telle infraction, ou se livrer à des
activités faisant partie d’un tel plan …
|
[6]
In making a finding
under section 37(1)(a) of the Act, the Immigration Division is also guided by
section 33 of the IRPA, which provides that:
|
33. The facts that constitute
inadmissibility under sections 34 to 37 include facts arising from omissions
and, unless otherwise provided, include facts for which there are reasonable
grounds to believe that they have occurred, are occurring or may occur.
|
33. Les faits — actes ou omissions —
mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés
sur la base de motifs raisonnables de croire qu’ils sont survenus,
surviennent ou peuvent survenir.
|
Standard
of Review
[7]
The Board’s factual findings and credibility
assessment are reviewable on the standard of reasonableness. I understand both
parties to agree that the officer’s finding in relation to the issue of
membership is also reviewable on the reasonableness standard. Given that what
is in issue in this regard is a question of mixed fact and law, I agree that
reasonableness is the appropriate standard with respect to the question of
membership: see Poshteh
v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85, [2005]
F.C.J. No. 381, 331 N.R. 129.
[8]
In reviewing
a decision against the reasonableness standard, the Court must consider the
justification, transparency and intelligibility of the decision-making process,
and whether the decision falls within a range of possible acceptable outcomes
which are defensible in light of the facts and the law: see Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para. 59.
Analysis
[9]
In
order to conclude that Mr. Talavera was inadmissible to Canada under paragraph 37(1)(a) of IRPA, the Immigration
Division had to find that he was, or had been, a member of an organization for which
there are reasonable grounds to believe is or was engaged in organized criminality as defined in section 37
of the Act. There
are thus three aspects involved in such an inadmissibility finding: the definition of “organized criminality”, the “reasonable
grounds to believe” standard, and the concept of “membership”.
[10]
In
this case, Mr.
Talavera concedes
that the Los Zetas gang is engaged in organized
criminality in Mexico.
[11]
Insofar
as the “reasonable
grounds to believe” evidentiary standard is concerned, the Supreme Court of
Canada stated in Mugesera v. Canada (Minister of Citizenship and
Immigration),
2005 SCC 40, [2005] 2 S.C.R. 100, that this standard required “something more than
mere suspicion, but less than the standard applicable in civil matters of proof
on the balance of probabilities”. The Supreme Court went on to hold that
reasonable grounds will exist “where there is an objective basis for the belief
which is based on compelling and credible information”: at para. 114.
[12]
With
respect to the test for membership, it is clear that actual or formal
membership in an organization is not required – rather the term is to be
broadly understood: see Chiau v. Canada (Minister of Citizenship and
Immigration), [2001] 2 F.C. 297 at para. 57 (F.C.A.). Moreover, there will
always be some factors that support a membership finding, and others that point
away from membership: see Poshteh, above, at para. 36.
[13]
It is clear from a review
of the record in this case that there was considerable evidence supporting the
Immigration Division’s conclusion that Mr. Talavera was a member of the Los
Zetas gang, most of which came from Mr. Talavera himself.
[14]
Mr.
Talavera acknowledged having associated on a regular basis over a period of a
couple of years with individuals he knew to be members of the Los Zetas, in
particular, two men named Raul (who was also known as “el lobo” or “the wolf”)
and Eric (also known as “el araña” or “the spider”). In his Personal Information
Form (or “PIF”), Mr. Talavera described his relationship with Raul and Eric as
“strong”, stating that he would go to parties with these individuals. They
would give him marijuana and cocaine, and, in exchange, he would do favours for
“them” such as stealing automotive materials, tools and spare parts from the
company where he worked.
[15]
Mr.
Talavera insists that this was merely a social relationship - that he just
spent his time hanging out with Raul and Eric and their friends doing drugs.
However, he says that Eric and Raul eventually tried to recruit him to join the
Zetas. When he refused to join the gang, attempts were made on his life, which
led him to flee Mexico and come to Canada.
[16]
The
Immigration Division did not accept that Mr. Talavera’s relationship with Raul
and Eric was merely a social one between drug user and drug dealer. In this
regard, the Board pointed to the fact that Mr. Talavera acknowledged having
been provided with information regarding the gang’s drug business. This
included his having been introduced to three or four drug distributors, and his
being provided with information regarding the gang’s movements, contacts, and
the points of purchase and sale for illegal drugs.
[17]
Mr.
Talavera argues that he was given all of this information as part of the gang’s
efforts to recruit him in order to prepare him for future work with the gang.
The Board considered and rejected this explanation, finding that it was
difficult to believe that a mere user of the drugs provided by the Zetas would be
made aware of “delicate details” of the gang’s drug business. This is an
entirely reasonable finding, particularly in light of the documentary evidence
detailing the gang’s methods of operation.
[18]
The
Board also considered Mr. Talavera’s statement in his PIF that he “decided
to leave that gang, that is, I cut them off for good and no longer hang out
with Eric and did not go to parties anymore …” [emphasis added]. The Board
noted and rejected Mr. Talavera’s explanation that all he meant by this
statement was that he stopped spending time with Raul and Eric and their
friends.
[19]
Mr.
Talavera argues that the Board erred in taking his statement at face value,
suggesting that his comment about him deciding to leave the gang resulted from
the fact that he did not have legal assistance in preparing his PIF, and from
problems with interpretation. However, as the Board observed, Mr. Talavera
filed an amended PIF after retaining counsel. Although numerous additions and
deletions were made to the original document, the statement regarding his
leaving the gang was left unchanged.
[20]
Moreover,
as Mr. Talavera himself conceded in cross-examination, you cannot leave a gang
that you never joined.
[21]
The
Board also concluded that the evidence demonstrated a deeper involvement with
the gang on the part of Mr. Talavera than mere social involvement or simply
buying drugs from them. In this regard, the Board noted that for a period of
approximately two years, Mr. Talavera knowingly associated with members of the
Zetas gang. He attended their parties and received drugs from known gang
members. In exchange, he provided support to Eric, who he knew to be a gang
member, by stealing automotive parts for him. He was privy to details of the
Zetas drug operations. In the Board’s view, this gave rise to reasonable
grounds to believe that Mr. Talavera was a “member” of the Los Zetas gang.
[22]
Mr.
Talavera takes issue with this finding, observing that there was no third-party
information confirming his membership in the gang. As was noted earlier, what
the jurisprudence requires is that there be an objective basis for the belief,
based on compelling and credible information. The Board based its membership
finding on Mr. Talavera’s own statements, drawing what were, in my view,
entirely reasonable inferences from those statements.
[23]
Mr.
Talavera has thus not persuaded me that the Board erred in finding that he was inadmissible
to Canada. Consequently, the
application for judicial review is dismissed.
Certification
[24]
Mr.
Talavera proposes the following question for certification:
In
order to prove membership in a criminal organization under section 37(1)(a) of
the Immigration and Refugee Protection Act, is evidence of knowledge of
some of the organization’s activities sufficient?
[25]
This
is not an appropriate question for certification, given that the membership
finding in this case was based on more than mere knowledge of some of the
Zeta’s criminal activities on the part of Mr. Talavera.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. This
application for judicial review is dismissed; and
2. No
serious question of general importance is certified.
“Anne Mactavish”
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