Date:
20120918
Docket:
IMM-9279-11
Citation:
2012 FC 1086
Ottawa, Ontario,
September 18, 2012
PRESENT: THE
CHIEF JUSTICE
BETWEEN:
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RONALD ANTONIO CASTELLON VIERA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
Applicant, Ronald Antonio Castellon Viera, is a citizen of El Salvador. He was found by the Immigration Appeal Division (IAD) of the Immigration and
Refugee Board of Canada to be inadmissible to Canada based on his uncontested
membership in the Mara Salvatrucha (MS) gang. He joined the MS, also known as
the MS-13, sometime between the age of ten or 12 and voluntarily left it when
he was 15 or 16.
[2]
The
IAD and the Immigration Division each found that the MS is a criminal
organization within the meaning of paragraph 37(1)(a) of the Immigration and
Refugee Protection Act, SC 2001, c. 27 [IRPA]. They also both determined
that Mr. Castellon did not have the requisite mental capacity to form the
intent to join the MS, but that he did achieve that mental capacity sometime
before he left the gang.
[3]
However,
they disagreed on whether he had remained with the MS under duress after he
achieved that mental capacity. The Immigration Division found that, after he achieved
the requisite mental capacity, Mr. Castellon remained with the gang under
duress until he departed “when the earliest real opportunity presented itself.”
By contrast, the IAD found that he had not made out the test for duress, after
finding certain aspects of his testimony to be implausible and after finding
that he was unreliable as a witness. The IAD stated that this undermined his
overall credibility and that it preferred the testimony of two other witnesses.
The IAD appears to have relied primarily, or to at least a significant degree,
on the evidence of those two witnesses in finding that Mr. Castellon had not
established the test for duress.
[4]
Mr.
Castellon submits that the IAD erred by:
a.
failing
to determine that either (a) the decision of the Immigration Division was wrong
in law or fact or mixed law and fact, or (b) a principle of natural justice had
not been observed, as set forth in paragraphs 67(1)(a) and (b) of the IRPA;
b.
failing
to make a determination described in paragraphs 67(1)(a) or (b), on a balance
of probabilities;
c.
making
a negative credibility finding against him without affording him an opportunity
to be heard; and
d.
making
an unreasonable finding with respect to his credibility.
[5]
For
the reasons that follow, I have concluded that the IAD did not commit the first
two errors alleged by Mr. Castellon, but that it did commit the third. Accordingly,
this application will be granted, without the need to address the fourth issue.
I. Standard
of Review
[6]
The
first two issues raised by Mr. Castellon concern the scope of the IAD’s
jurisdiction. Accordingly, they are reviewable on a standard of correctness (Dunsmuir
v New Brunswick, 2008 SCC 9, at para 59, [2008] 1 S.C.R. 190 [Dunsmuir];
Canada (Minister of Citizenship and Immigration) v. Khosa,
2009 SCC 12, at para 42, [2009] 1 S.C.R. 339 [Khosa]).
[7]
The third issue is a question of procedural fairness, which is
subject to review on a standard of correctness (Dunsmuir, above, at paras 55,
79 and 87; Khosa, above, at para 43).
[8]
Had it been necessary to address fourth issue raised by
Mr. Castellon, regarding the reasonableness of the IAD’s finding with respect
to his credibility, that issue would have been reviewable on a standard of
reasonableness (Dunsmuir, above, at paras 51-55; Khosa,
above, at paras 46-47; Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), [2011] 3 S.C.R. 708, at paras 11 - 18).
II. Analysis
A.
Did
the IAD err by failing to determine that either (a) the decision of the Immigration
Division was wrong in law or fact or mixed law and fact, or (b) a principle of
natural justice had not been observed, as set forth in paragraphs 67(1)(a) and
(b) of the IRPA?
[9]
Mr. Castellon asserts that the IAD erred by failing to consider or
mention paragraphs 67(1)(a) and (b), which were the only grounds upon which the
IAB had the jurisdiction to allow the Minister’s appeal from the Immigration
Division' s decision. Stated alternatively, he asserts that the IAD erred by
ignoring the lower tribunal’s decision and looking at the case afresh. I
disagree.
[10]
It
is now settled that an appeal before the IAD is “a hearing de novo in a broad
sense” (Kahlon v Canada (Minister of Employment and Immigration), 1989
FCJ No 104, at para 5 [Kahlon]; Mohamed v Canada (Minister of
Employment and Immigration), [1986] 3 FC 90, at paras 9-13 (CA) [Mohamed];
Singh v Canada (Minister of Citizenship and Immigration), 2005 FC 1963,
at para 8; Ni v Canada (Minister of Citizenship and Immigration), 2005
FC 241, at para 9; Canada (Minister of Citizenship and Immigration) v Savard,
2006 FC 109, at para 16; Canada (Minister of Citizenship and Immigration) v
Venegas, 2006 FC 929, at para 18; Contreras Mendoza v Canada (Minister
of Citizenship and Immigration), 2007 FC 934, at paras 17-20 [Contreras
Mendoza]).
[11]
Accordingly,
the IAD is not limited to determining whether the Immigration Division
correctly or reasonably concluded that a person seeking admission to Canada was of an inadmissible class. Rather, the IAD is required to determine whether the
person is in fact inadmissible (Mohamed, above; Kahlon, above; Contreras
Mendoza, above). Contrary to Mr. Castellon’s submissions, there is nothing
in the IRPA or the jurisprudence which limits the exercise of de novo
jurisdiction by the IAD to situations in which new evidence which was not
before the Immigration Division has been adduced.
[12]
It
follows from the foregoing that the IAD was not required to give any deference
to the Immigration’s Division’s findings, or to explicitly state that either
(a) the Immigration Division’s decision was wrong in law or fact or mix law and
fact, or (b) a principle of natural justice had not been observed. It is
sufficient for this Court to find, upon a review of the IAD’s decision as a
whole, that the IAD was in fact satisfied, at the time the appeal was disposed
of, that either (a) the decision appealed was wrong in law or fact or mixed
fact and law, or (b) a principle of natural justice had not been observed.
[13]
Having
reviewed the IAD’s decision, I have no difficulty finding that the IAD was in
fact satisfied that the Immigration Division’s decision was wrong for reasons
of mixed fact and law.
[14]
At
the outset of its decision, the IAD correctly articulated its task as being to
determine whether, “based on all the evidence before the panel … there [are]
reasonable grounds to believe that the respondent is inadmissible as a member
of a criminal organization pursuant to paragraph 37(1)(a)” of the IRPA.
[15]
Among
other things, the IAD proceeded to note that Mr. Castellon had acknowledged
that he is a foreign national, that the MS is a criminal organization within
the meaning of paragraph 37(1)(a) of the IRPA, and that he was a member of the
MS.
[16]
The
IAD then turned to the issue of whether Mr. Castellon ought not to be considered
to have been a member of the MS based on his age and level of understanding at
the time of his involvement with that organization. After quoting excerpts
from Poshteh v Canada (Minister of Citizenship and Immigration) 2005 FCA
85, at paras 51 and 53, the IAD found that the reasoning in that case, which
concerned an allegation of membership in a terrorist organization by person who
was a minor at the time, applied equally to membership in a criminal
organization.
[17]
The
IAD then reviewed the evidence and agreed with the Immigration Division’s
finding that the evidence established that Mr. Castellon’s membership in the MS
commenced before the age of 12. However, it noted that whereas the Immigration
Division found that his membership “ended in his mid-teens, well before he
reached the age of majority,” the IAD could only conclude that his membership
ended before he came an adult, but not necessarily “well before” that time,
given his acknowledgment to an enforcement officer that he left the MS when he
was “like 17.”
[18]
The
IAD proceeded to note that Mr. Castellon's activities with the MS included
transporting quantities of cocaine, robbing people and businesses of their
belongings and money while armed with a knife, witnessing serious crimes that
included seeing two people murdered by fellow gang members, and being present
at meetings where he heard other gang members planning and discussing murders.
The IAD also noted that while he was committing his crimes, he wore the gang’s
colors and identifying clothing and his victims were able to identify his gang
membership because of his tattoos.
[19]
After
discussing the test for duress, as it was briefly discussed in Ramirez v
Canada (Minister of Employment and Immigration), [1992] 2 FC 306, at para
40, the IAD discussed Mr. Castellon's testimony regarding his efforts to obtain
help from the school that he attended to leave the gang, the risks that he
believed he faced if he attempted to leave the gang, and his eventual departure
from the gang to join a “rehabilitation centre.” The IAD also discussed the
testimony of an expert who testified on behalf of the Minister, as well as the
testimony of someone who had worked at the school that Mr. Castellon attended.
[20]
Ultimately,
the IAD concluded that Mr. Castellon had not made out the first of the three
conjunctive elements of the test for duress, namely, that he faced a situation
of “imminent physical peril” (Oberlander v Canada (Attorney General),
2009 FCA 330, at para 25). Accordingly, the IAD concluded, based on all of the
evidence before it, that Mr. Castellon is a person described in paragraph
37(1)(a) of the IRPA.
[21]
Given
the foregoing, I have no difficulty concluding that the IAD satisfied itself
that the Immigration Division’s decision was wrong for reasons of mixed fact
and law. After correctly articulating the scope of its jurisdiction, the IAD
correctly stated the test to be applied on the key issue of duress and
discussed the testimony of Mr. Castellon and two other witnesses. Ultimately,
the IAD found that the facts did not establish that there were reasonable
grounds to believe that a person of his age, intelligence and experience would
have apprehended that “he was in such imminent physical peril as to deprive him
of [the] freedom to choose the right and refrain from the wrong.” In making
that finding, the Board implicitly satisfied itself that the decision appealed
from was wrong for reasons of mixed fact and law, as provided by paragraph
67(1)(a) of the IRPA.
[22]
Mr.
Castellon further asserted that the principles of estoppel and res judicata
prevented the IAD from reversing the Immigration Division’s decision without
new evidence and without regard to the grounds of appeal set forth in
subsection 67(1) of the IRPA. I disagree.
[23]
As
discussed above, the IAD did implicitly conclude that the Immigration
Division’s decision on the issue of duress was wrong in mixed fact and law. In
so doing, it met the precondition to its exercise of jurisdiction set forth in
paragraph 67(1)(a). Given that the Immigration Division’s decision was not a
“final” decision, the principles of issue estoppel and res judicata do
not apply (Danyluk v Ainsworth Technolgies Inc., 2001 SCC 44, at para
25, [2001] SCR 460; Angle v Minister of National Revenue, [1975] 2 SCR
248 at paras 20-25).
B.
Did
the IAD err by failing to make a determination described in paragraphs 67(1)(a)
or (b), on a balance of probabilities?
[24]
Mr.
Castellon asserted that the IAD cannot allow an appeal of the Immigration
Division unless it is satisfied, on a balance of probabilities, that the
Immigration Division erred. I disagree.
[25]
In
my view, Mr. Castellon’s position would undermine the precautionary and
preventative rationale underlying the “reasonable grounds to believe” standard
of proof in paragraph 37(1)(a) (Re Jaballah, 2010 FC 79, at paras 58-59,
and 64).
[26]
As
noted above, the IAD is not limited to determining whether the Immigration
Division correctly or reasonably concluded that a person seeking admission to Canada is of an inadmissible class. Rather, the IAD is required to determine whether the
person is in fact inadmissible (Mohamed, above; Kahlon, above; Contreras
Mendoza, above; Rattan v Canada (Minister of Employment and Immigration),
[1994] FCJ No 32, at para 7 [Rattan]). In other words, on an appeal from
the Immigration Division, the IAD is in essentially the same position as was
the Immigration Division. In the context of this case, that means that its task
was to determine if Mr. Castellon was inadmissible to Canada based on the test
set forth in paragraph 37(1)(a) of the IRPA, and the rules of interpretation
set forth in section 33. Those rules state, in unambiguous terms, that “[t]he
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.”
[27]
Accordingly,
the IAD did not err by failing to find, on a balance of probabilities,
that the decision of the Immigration Division was wrong in law or fact or mixed
law and fact.
C. Did
the IAD err by making a negative credibility finding without affording Mr.
Castellani an opportunity to be heard?
[28]
Mr.
Castellon asserts that the IAD erred by failing to inform him that it intended to
reassess the credibility of his testimony and by failing to afford him an
opportunity to testify in person, as he had done before the Immigration
Division. I agree.
[29]
The
IAD initially scheduled an oral hearing in this matter. However, the parties
made a joint written application on July 7, 2011 for that hearing to be
cancelled, and for the appeal to be conducted in writing. The basis for their
position was as stated as follows: “Neither party intends to call further
evidence and both intend to rely exclusively on the Record of Appeal and make legal
submissions” (emphasis added).
[30]
Mr.
Castellon’s subsequent written submissions to the IAD, dated August 17, 2011,
also clearly reflect that he understood the appeal would be confined to
questions of law. At page 2 of those submissions, he stated as follows:
The Respondent and Minister agreed to limit the appeal to written
representations without producing new evidence. This is appropriate as the
issues raised by the appellant are legal. Therefore, any errors alleged by the
Minister must be on the face of the record.
[31]
With
respect to the issue of duress, Mr. Castellon’s submissions clearly reflect
that he was under the impression that the IAD was required to accord
“significant deference” to the Immigration Division’s determination.
[32]
Given
the foregoing, the IAD should have (i) notified Mr. Castellon that it intended
to revisit the question of his credibility on the issue of duress, and (ii)
afforded him an opportunity to make further submissions on that issue. By
failing to do so, the IAD breached Mr. Castellon's procedural fairness rights.
D. Did
the IAD err by making an unreasonable finding with respect to Mr. Castellon's
credibility?
[33]
Given
the conclusion that I have reached with respect to the third issue raised by
Mr. Castellon, it is not necessary to address this issue.
III. Conclusion
[34]
This
application for judicial review is granted.
IV. No
Question for Certification
[35]
Mr.
Castellon proposed the following two questions for certification:
1. When the Minister
appeals a decision by the Immigration Division to the Immigration Appeal
Division, pursuant to subsection 63(5) of the IRPA, does the Minister have to
prove there was an error in fact, law, or mixed fact and law made by the
Immigration Division on a balance of probabilities?
2. When the Minister
appeals a decision by the Immigration Division to the Immigration Appeal
Division, pursuant to subsection 63(5) of the IRPA, and where the parties agree
to conduct the proceedings in writing on the ground that the question to be
decided is solely a legal issue and not based on credibility, is it a
procedural error for the IAD to determine the case on credibility grounds
without allowing the Respondent the opportunity to have an oral hearing?
[36]
Counsel
to the Minister opposed both of the proposed questions on the ground that they
disclose no serious issue and would not be determinative of an appeal. I
agree.
[37]
Paragraph
74(d) only allows for the certification of “a serious question of general importance.”
In my view, neither of Mr. Castellon’s proposed questions meet this standard.
[38]
As
to the first of the proposed questions, the jurisprudence has consistently
confirmed that the IAD is not limited to determining whether the Immigration
Division correctly or reasonably concluded that a person seeking admission to Canada is of an inadmissible class. Rather, the IAD is required to determine whether the
person is in fact inadmissible (Mohamed, above; Kahlon, above; Contreras
Mendoza, above; Rattan, above). When making such determinations, the
IAD is in essentially the same position as was the Immigration Division. That
is to say, it must determine whether Minister has established the reasonable
grounds to believe contemplated by paragraph 37(1)(a) and section 33.
[39]
The
decisions in Asgharpour-Khiabani v Canada (Minister of Citizenship and
Immigration), 2009 FC 810, at para 20 and Brace v Canada (Minister of Public Safety and Emergency Preparedness), 2010 FC 582, at para 14, are
distinguishable. In brief, Ashgharpour-Khaibani did not involve a
hearing in respect of which the statutory standard of proof contemplated by
paragraph 37(1)(a) and section 33 applied. As to Bruce, above, the focus
of the Court’s analysis was upon the IAD’s treatment of the humanitarian and
compassionate considerations contemplated by paragraph 67(1)(c) and the
relevant assessment factors that have been identified in Ribic v Canada
(Minister of Employment and Immigration), [1985] IABD No 4 (QL) and
approved by the Supreme Court of Canada in Chieu v Canada (Minister of
Citizenship and Immigration), [2002] 1 S.C.R. 84, at para 90. Moreover, in Brace,
Justice Harrington expressly qualified his statement with the underlined words
in the following passage: “Unless a statute provides otherwise, there is
only one standard of proof before civil tribunals, and that is the balance of
probabilities.” (Emphasis added.)
[40]
As
to the second proposed question, it contemplates a fact pattern that is unique
to the facts of this case. It is therefore not an appropriate question for
certification.
JUDGMENT
THIS
COURT ORDERS AND ADJUGES THAT:
1.
The
decision of the Immigration Appeal Division (“IAD”), dated November 24, 2011 is
set aside and remitted to a differently constituted panel of the IAD for
reconsideration in accordance with these reasons.
2.
There
is no question for certification.
"Paul S. Crampton"
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