Date: 20110202
Docket: IMM-4345-09
Citation: 2011
FC 105
Ottawa, Ontario,
February 2, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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GUSTAVO ADOLFO PEREZ VILLEGAS
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRAITON
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the Act) for judicial review of a decision of
an immigration officer (the officer), dated August 7, 2009, wherein the officer
found the applicant to be inadmissible to Canada pursuant to paragraph 34(1)(f)
of the Act.
[2]
The applicant requests an order quashing the decision of the
officer and remitting the matter back for reconsideration by a different
officer.
Background
[3]
Gustavo
Adolofo Perez Villegas (the applicant) was born October 5, 1952 and is a
citizen of Mexico.
[4]
The
applicant first learned about Ejercito Zapatista de Liberacion Nacional (EZLN),
the Zapatista Army, after it stormed several government buildings in the state
of Chiapas,
Mexico in January 1994. His
godfather, Bishop Samuel Ruiz, explained to him that EZLN was helping raise
awareness about plight of indigenous people in Chiapas. From 1994 to 1997, the applicant states
that he formed informal groups to collect money, medicine and food for
indigenous peoples which he then gave to the EZLN because the Mexican Army had
cut off normal access to Chiapas.
[5]
The
applicant was threatened for these activities. His brother disappeared and his
home was ransacked. The applicant fled to Canada and claimed refugee status which he was granted
in August 1998.
[6]
In
his Personal Information Form (PIF), the applicant indicated that he was a
member of the EZLN, the Zapatista Army. In his applications for permanent
residence, he indicated that he was a general coordinator and coordinator for
the EZLN.
[7]
The
applicant was granted permanent residence status in principle, on December 16,
1998. Citizenship and Immigration Canada (CIC) requested a background check to
determine the applicant’s involvement with the EZLN. An interview with CIC took
place on June 12, 2009.
[8]
The
applicant alleges in his affidavit that he was never a member, coordinator or
organizer for the EZLN. He states that he told this to the CIC officer. Rather,
he alleges that he was a coordinator for people who wanted to support the
Zapatista movement.
Officer’s Decision
[9]
The
officer ultimately found the applicant to be inadmissible to Canada pursuant to
paragraph 34(1)(f) of the Act due to his membership in the EZLN which the
officer determined that there were reasonable grounds to believe the applicant has
engaged in terrorist activities.
[10]
Regarding
membership, the officer noted that there is no definition of membership in the
Act, but that the definition is broad and unrestricted in the jurisprudence. He
also took notice of the CIC Enforcement Manual definition of membership.
[11]
The
officer found that the applicant had listed belonging to the EZLN twice in his
PIF and that in his applications for permanent residence, stated that he
volunteered as a coordinator. The officer found that the applicant confirmed
his involvement with the EZLN during his CIC admissibility interview.
[12]
The
officer acknowledged that the applicant stressed he was never a formal member
of the EZLN. The officer found however, that the applicant coordinated
activities in support of the EZLN in Mexico State. The officer
acknowledged that the applicant worked with the EZLN because it was the only
network which could deliver supplies to the poor in Chiapas.
[13]
The
officer found that the applicant did not agree that EZLN is a terrorist organization,
but that he was aware of the violence attributed to the EZLN and that it had
attacked the Mexican Army after the Army initiated attacks on the EZLN. The
officer acknowledged that the applicant was never involved in acts of violence
or terrorism.
[14]
The
officer found that the applicant remained involved with the EZLN after the
government crackdown, but that he was discreet in his activities.
[15]
The
officer then concluded that there are reasonable grounds to believe that the
applicant was a member of the EZLN.
[16]
Regarding
the organization, the officer provided the Suresh definition of
terrorism (see Suresh
v. Canada (Minister of
Citizenship & Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 at paragraph 98) and then
stated that given his assessment of the EZLN, he was satisfied that it is an
organization that there are reasonable grounds to believe engaged in acts of
terrorism.
[17]
In
his assessment of EZLN, the officer found that the EZLN was created in 1983 by
subcomandante Marcos to aid rural peasants and indigenous people of Chiapas. He found
that EZLN’s first large military operation was in January1994 where 1,000 EZLN
guerrillas occupied six cities and towns in Chiapas. The officer
described EZLN demands in the “war against the Mexican government.” The
officer found that there were between 6,000 and 14,000 Mayan Indian fighters in
the January rebellion and he noted that in that fight, 30 soldiers and police,
24 EZLN members and three civilians were killed. He found that the total killed
from January 1 to 12, 1994 was between 145 and 400 people and included police,
soldiers, EZLN guerrillas and civilians.
[18]
The
officer found that the EZLN had engaged in violence in other parts of Mexico including a
shopping mall parking lot, military base and electrical tower in Mexico City
and a government building in Acapulco. The officer noted that
a report by the International Commission of Jurists could find no evidence that
the EZLN committed human rights violations against civilians, whereas a
Physicians for Human Rights/Human Rights Watch report stated that the EZLN
violated the rules of war by killing non-combatants and taking hostages. The
officer also found that EZLN held summary trials and executions and he also
noted that a cache of weapons was found in an EZLN safehouse.
[19]
The
officer reviewed the history of the ceasefire and negotiations between the
government and the EZLN.
[20]
Given
his conclusions about the applicant’s membership and the nature of the EZLN as
an organization which has engaged in terrorism, the officer found the applicant
to be inadmissible under paragraph 34(1)(f) of the Act.
Issues
[21]
The
issues are as follows:
1. What is the
appropriate standard of review?
2. Did the officer fail
to provide adequate reasons for his conclusion that the applicant was a member
of the EZLN?
3. Did the officer err
by finding that there are reasonable grounds to believe the EZLN is an
organization that has engaged in terrorism?
Applicant’s Written Submissions
[22]
The
applicant submits that the officer erred in concluding that the applicant was a
member of the EZLN.
[23]
The
applicant submits that the officer failed to consider whether the applicant was
sufficiently committed to the ideals and objectives of the organization and
devoted sufficient time and energy to be considered a member.
[24]
The
applicant submits that the officer’s reasons are inadequate. The reasons do not
address the explanations or defences offered by the applicant. For example, the
applicant stated that he never meant to say he was a member in his PIF or
permanent residence forms. In addition, the reasons do not address the explanation
that the applicant was only a political supporter of the EZLN who organized an
informal civil society group that supported the organization.
[25]
The
applicant submits that a sympathizer or supporter of an organization is not
necessarily a member.
[26]
In
addition, the applicant also submits that the officer was required to
distinguish between activities performed under the political and military wings
of the EZLN.
[27]
The
applicant also submits that the officer erred in concluding that there are reasonable
grounds to believe that the EZLN engaged in terrorist acts.
[28]
The
applicant submits that the officer failed to properly apply the definition of
terrorism to the EZLN. The officer was required to make findings of fact about
specific acts committed by the EZLN and explain how the listed acts met the Suresh
definition of terrorism above. In particular, the applicant submits that the
officer was required to provide an analysis of how the listed acts were
intended to harm civilians, since the Suresh definition is concerned
with the protection of civilians.
[29]
The
applicant submits that the documentary evidence considered by the officer
described EZLN as a military group engaged in conflict with Mexican security
forces. There was no evidence before the officer that the EZLN encouraged,
condoned or directed its members to target civilians. The officer described
some violent incidents but failed to consider whether these incidents met the
definition of terrorism.
[30]
The
applicant submits that departing from the Suresh definition of terrorism
above, is a reviewable error and the decision of the officer should be quashed
and remitted for reconsideration.
Respondent’s Written Submissions
[31]
The
respondent submits that the officer reasonably found the applicant to be a
member of the EZLN. The term member should be given a broad, unrestricted
interpretation and membership does not require one to be an actual or formal
member. In addition, the respondent submits that the applicant’s labelling of
himself as a supporter does not preclude a finding that he was a member,
particularly since attending meetings and distributing pamphlets for an
organization have been found to be membership.
[32]
The
respondent submits that the officer understood the applicant’s explanations that
he was a sympathizer who coordinated activities and distributed pamphlets and
not a full member of the EZLN.
[33]
The
respondent submits that it is not always possible to draw a bright line between
the legitimate business activities of a criminal organization and its criminal
activities and that a person who participates in the legitimate activities of
an organization knowing that it is controlled by a criminal organization may be
considered a member of that criminal organization.
[34]
While
there may be factors which point to and away from membership, this is within
the expertise of the Refugee Protection Division. As long as the officer’s
decision was reasonable, the Court should not interfere.
[35]
The
respondent submits that it was open to the officer to conclude that there were
reasonable grounds to believe that the EZLN was a terrorist organization. The
officer reviewed the Suresh definition of terrorism above, and the
various military operations and rebellions of the EZLN. The respondent submits
that there was evidence of activities before the officer which he weighed and
determined that this fit into the Suresh definition of terrorism. This
included reports that the EZLN had violated the rules of war, held summary
trials and executions and had weapons and explosives. The respondent submits
that the officer looked into the nature of the acts of violence in light of Suresh
above, before coming to his conclusion.
[36]
The
respondent also noted that this Court has heard a number of judicial reviews
where applicants have claimed refugee status on the basis that they fear
persecution from the EZLN.
[37]
Given
the evidence, the Court should not intervene in this case, according to the
respondent.
Analysis and Decision
[38]
Issue
1
What is the appropriate
standard of review?
Where previous jurisprudence
has determined the standard of review applicable to a particular issue, the
reviewing court may adopt that standard (see Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at paragraph 57).
[39]
A
review of a membership finding under paragraph 34(1)(f) of the Act, pre-Dunsmuir
above, was undertaken on the reasonableness simpliciter
standard (see Poshteh v. Canada (Minister of Citizenship
and Immigration), 2005 FCA 85, [2005] 3 F.C.R. 487 at paragraph 23). This
was due to the critical factual elements to be decided and the expertise of the
officers in assessing applications of inadmissibility. This level of deference
continues to be appropriate, thus, the standard of review is reasonableness
(see Uzbazghi v. Canada (Minister of
Citizenship and Immigration), 2008 FC 694, [2009] 1 F.C.R. 454 at
paragraph 36).
[40]
Likewise,
a certain level of deference is required in reviewing the determination of
whether a particular organization is a terrorist group and as such, the
standard of reasonableness continues to apply post-Dunsmuir above (see Qureshi
v. Canada (Minister of
Citizenship and Immigration), 2009 FC 7, 78 Imm. L.R. (3d) 8 at
paragraph 16).
[41]
Since
a finding of exclusion is particularly significant to an applicant, “[c]aution
must be exercised to ensure such findings are properly made” (Alemu v. Canada (Minister of
Citizenship and Immigration), 2004 FC 997, 38 Imm. L.R. (3d) 250 at
paragraph 41). This is particularly true when the applicant was already granted
refugee status and would face persecution if returned to his country of
nationality. Where the analysis and decision are reasonable, this Court will
not interfere. However, findings of inadmissibility “should be carried out with
prudence, and established with the utmost clarity” (see Daud v. Canada (Minister of
Citizenship and Immigration), 2008 FC 701, 170 A.C.W.S. (3d) 148 at
paragraph 8).
[42]
Given
the combination of section 33 and paragraph 34(1)(f) of the Act, the standard
of proof used by the officer for both the question of whether the applicant
was a member of the EZLN and whether the EZLN has engaged in terrorism was
“reasonable grounds to believe.” The Supreme Court of Canada held in Mugesera
c. Canada (Ministre de la Citoyenneté et de l'Immigration), 2005 SCC 40,
[2005] 2 S.C.R. 100, at paragraph 114, that this standard is more than
suspicion and less than the balance of probabilities. It entails “a bona
fide belief in a serious possibility based on credible evidence” (see Chiau
v. Canada (Minister of
Citizenship and Immigration, [2001] 2 F.C. 297, [2000] F.C.J. No. 2043 (QL)
(FCA). The Federal Court is concerned, however, with whether it was reasonable
for the immigration officer to conclude that there were reasonable grounds to
believe that either EZLN was a terrorist group or that the applicant was a
member of EZLN (see Moiseev v. Canada (Minister of Citizenship and
Immigration), 2008 FC 88, 323 F.T.R. 164 (Eng.) at paragraph 17).
[43]
Issue
2
Did the
officer fail to provide adequate reasons for his conclusion that the applicant
was a member of the EZLN?
There is no definition of
member in the Act. This Court and the Federal Court of Appeal have held that
the term member in paragraph 34(1)(f) must be given a broad and unrestricted
interpretation since the type of organizations involved do not necessarily
provide formal documentation of membership (see Poshteh above, at
paragraphs 27 and 29). Because of this broad interpretation, formal or actual
membership is not a prerequisite for finding that someone is a member (Kanendra
v. Canada (Minister of
Citizenship and Immigration), 2005 FC 923, 47 Imm.L.R. (3d) 265 at
paragraphs 21 to 23). Mr. Justice Simon Noël held in Kanendra above, at
paragraph 22 that, “[t]o adopt such an interpretation would, I think, be contrary
to the spirit of the legislation as well as to prior jurisprudence.” As such,
membership may be found where the individual was an informal participant or
supporter (see Sepid v. Canada (Minister of
Citizenship and Immigration), 2008 FC 907 at paragraph 17).
[44]
The
factors a decision-maker should consider in assessing membership include, but
are not limited to, the nature of the person’s involvement, the length of time involved
and the degree of commitment to the organization and its objectives (see Poshteh
above, at paragraph 37).
[45]
The
applicant submits that a distinction must be made when there is a separate and
independent political and military wing. The applicant relies on Cardenas v. Canada (Minister of
Employment and Immigration), [1994] F.C.J. No. 139 (C.A.). However, in that
case, the political and military divisions were unique, distinct entities.
There is no evidence that the applicant belonged to a distinct independent
political wing of the EZLN, and as such, I do not find this case persuasive.
[46]
Likewise,
the respondent, relying on Chiau above, at paragraph 59, submits that a
person who participates in the legitimate business activities of a criminal
organization may be considered a member of that criminal organization. This
case is not persuasive, however, since in the case at bar, the terrorist nature
of EZLN was an issue to be determined by the officer, as well as membership.
[47]
The
facts of the applicant’s case are very similar to that of Uzbazghi above.
In that case, the applicant stated in her PIF that she had been a member of the
Eritrean Liberation Front (ELF) but in her statutory declaration stated she was
not a member but rather a part of an ELF support group. The Court found that
there was no reviewable error because the officer did not rely on the
applicant’s prior admission of membership (at paragraph 39). The Court noted
that the officer considered the applicant’s “activities (meetings, donations,
distribution of ELF materials which encouraged others to join the armed struggle
and or to give donations)], amount to membership [. . .] as they furthered the
goals of the organization” (at paragraph 39). Consequently, the Court held that
the officer’s finding that the applicant was a member of the ELF was reasonable
(at paragraph 45).
[48]
In
the case at bar, the officer’s determination on membership under paragraph
34(1)(f) of the Act lacks transparency. He did not explain how his findings amount
to membership based on the jurisprudence or the CIC enforcement manual
definition of membership. Unlike Uzbazghi above, the officer did not
engage in any analysis of whether the applicant’s activities in support of the
EZLN amounted to membership. The officer relied on the applicant’s prior
admission of membership, noting that he wrote member and coordinator in his PIF
and permanent residence applications. The officer did not address the
applicant’s explanations for describing himself as a member.
[49]
The
officer did not analyze the applicant’s involvement with the EZLN, he simply
noted that the “applicant did confirm that he coordinated activities in support
of the EZLN.” While the officer noted that the applicant became involved in the
EZLN in January 1994, he did not address whether this is a positive or negative
factor in his analysis of membership.
[50]
The
officer found that the applicant “worked with the EZLN because it was the only
network that could distribute food . . .”. He also found that the applicant
continued his activities after the crackdown by the Mexican government, “because
he was aware of the situation in Chiapas and of the exploitation
of the people there. Furthermore, he believed that ultimately the EZLN made
everyone aware of living conditions in Chiapas”. The
officer did not provide any analysis of how these factors affected the
applicant’s degree of commitment to the organization or its objectives.
[51]
Ultimately,
the officer did not provide an intelligible and reasoned decision for finding
that the applicant was a member of the EZLN. As stated above, any finding of
inadmissibility “should be carried out with prudence, and established with the
utmost clarity” (see Daud above, at paragraph 8). The finding that the
applicant was a member of the EZLN forms part of the officer’s decision on
inadmissibility and it does not meet the reasonableness standard set out in Dunsmuir
above.
[52]
Issue
3
Did the
officer err by finding that there are reasonable grounds to believe the EZLN is
an organization that has engaged in terrorism?
There is no definition of
“terrorism” in the Act. The
Supreme Court held in Suresh above, at paragraph 98 that terrorism
includes:
.
. . any act intended to cause death or serious bodily injury to a civilian, or
to any other person not taking an active part in the hostilities in a situation
of armed conflict, when the purpose of such act, by its nature or context, is
to intimidate a population, or to compel a government or an international
organization to do or to abstain from doing any act.
[53]
In
Daud above, at paragraph 11, Madam Justice Danièle Tremblay-Lamer outlined
the two-step analysis, that an officer must undertake in applying the Suresh
above, definition of terrorism:
The first step involves a factual
determination of whether there are reasonable grounds to believe that the
organization in question committed the acts of violence attributed to it. At
the second step of the analysis, a determination is made as to whether those
acts constitute acts of terrorism. The officer must provide the definition of
terrorism relied upon and explain how the listed acts meet that definition (Jalil
v. Canada (Minister of Citizenship
& Immigration),
2006 FC 246 (F.C.), at para. 32).
[54]
First,
the decision-maker must show the evidentiary foundation to support a finding
that an organization was engaged in acts of terrorism (see Fuentes v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 379, [2003] 4 F.C. 249). The
decision-maker must make specific findings of fact about what acts the
organization engaged in that are contained in either paragraphs 34(1)(a), (b)
or (c) (see Alemu above, at paragraphs 32, 33 and 41).
[55]
Then,
the decision maker must provide analysis of the acts the organization has
committed and explain how they meet the definition of terrorism. This requires
showing the link between the acts and the definition of terrorism provided (see
Naeem v. Canada (Minister of Citizenship and Immigration), 2008 FC
1735, 78 Imm.L.R. (3d) 23). Significantly, the decision-maker must explain how
the acts were intended to harm civilians – as the definition of terrorism focuses
on the protection of civilians. Mr. Justice François Lemieux in Fuentes above,
at paragraph 77, highlights the importance of analyzing the listed acts:
I readily acknowledge that a bomb or
other armed attack on a government building filled with government workers
would, with the required purpose, be easily construed as an act of terrorism
within the Suresh meaning or within the meaning of terrorist activity
under the Anti-terrorist Act. The problem here is that we do not know
any surrounding circumstance of what was involved in such attacks.
[56]
The
officer in the case at bar provided the Suresh definition of terrorism
above. He then indicated that he had “considered the information in the
previous section Assessment of the Ejercito Zapatista de Liberacion Nacional
(EZLN)” and stated that he was satisfied that the EZLN is an organization
that there are reasonable grounds to believe has engaged in acts of terrorism. This
analysis cannot meet the requirements set down by the jurisprudence.
[57]
Even
if this Court reviews the officer’s assessment of the EZLN from the previous
section, which was not part of his terrorism analysis, the officer does not
indicate which evidence he is relying on to conclude that terrorist acts
occurred. Moreover, there is no discussion at any point about how any acts of
the EZLN were “. . . intended
to cause death or serious bodily injury to a civilian, or to any other person
not taking an active part in the hostilities in a situation of armed conflict .
. .” (see Suresh above, at paragraph 98). In fact, the officer mentions
civilians only twice in the assessment of the EZLN, both times to note that
civilians were killed. He does not analyze how these civilians were
killed, by whom, or whether the EZLN condoned or encouraged the killing. The
officer mentions one report that said the EZLN had killed non-combatants but,
again, the officer did not assess whether they were targeted or intentionally
killed. As in Fuentes above, while the officer described some violent
acts in the section entitled assessment of the EZLN, he does not show how these
acts fit within the Suresh above, definition of terrorism.
[58]
As
such, the officer’s finding that there were reasonable grounds to believe that
the EZLN has engaged in acts of terrorism is unreasonable.
[59]
As a
result, the application for judicial review is allowed and the matter is
referred to a different officer for redetermination.
[60]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[61]
IT IS
ORDERED that the
application for judicial review is allowed and the matter is referred to a
different officer for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration and Refugee Protection Act, 2001, c. 27
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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.
34.(1) A permanent resident or a foreign
national is inadmissible on security grounds for
. . .
(f) being a
member of an organization that there are reasonable grounds to believe
engages, has engaged or will engage in acts referred to in paragraph (a), (b)
or (c).
72.(1)
Judicial review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
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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.
34.(1)
Emportent interdiction de territoire pour raison de sécurité les faits
suivants :
. .
.
f)
être membre d’une organisation dont il y a des motifs raisonnables de croire
qu’elle est, a été ou sera l’auteur d’un acte visé aux alinéas a), b) ou c).
72.(1)
Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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CIC
Enforcement Manual 2
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4.5.
Interpretation
The meaning of
“member – membership” includes anyone who is knowingly linked to an
organized
crime group and benefits from this association; this may include:
• persons who
devote themselves full time or almost full time to the organization;
• persons who
are associated with members of the organization, especially over the course
of a lengthy period of time;
• persons who
do not personally commit acts, provided that they are connected to the
criminal
organization;
• persons who
are directly, indirectly, or peripherally involved with the organization;
• persons who
are not involved in the management of the organization but derive an
economic
benefit from their association with the organization;
• persons
working for a legitimate company while knowing it is controlled by organized crime;
and
• persons who
do not have formal membership as long as they belong (or belonged) to
the criminal
organization. Belonging to an organization is assumed where persons
join
voluntarily and remain in the group for the common purpose of actively adding
their personal
efforts to the group's cause.
Membership
does not include persons who had no knowledge of the criminal purpose or
acts of the
organization.
However, the
structure of A37(1)(a) makes it clear that “membership” of a gang and
engaging in
gang-related activities are discrete, but overlapping grounds on which a
person may be
inadmissible for “organized criminality.” The “engaging in gang-related
activities”
ground of “organized criminality” was added by IRPA.
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4.5.
Interprétation
Les
termes « membre/appartenance » visent quiconque est sciemment lié à un groupe
criminel
organisé et
tire profit de cette association, ce qui peut comprendre :
• les
personnes qui consacrent tout leur temps ou presque à l’organisation;
• les
personnes associées à des membres de l’organisation, particulièrement sur une
longue
période de
temps;
• les
personnes qui ne commettent pas personnellement des actes mais qui sont liées
à
l’organisation
criminelle;
•
les personnes qui, directement, indirectement ou accessoirement, sont
impliquées dans l’organisation;
•
les personnes qui ne participent pas à la gestion de l’organisation mais
tirent un avantage économique de leur association à celle-ci;
•
les personnes qui travaillent pour une entreprise légitime tout en sachant qu’elle
est contrôlée par le crime organisé;
•
les personnes qui ne sont pas membres officiels, mais qui appartiennent ou
ont appartenu à l’organisation criminelle. L’appartenance à une organisation
criminelle s’entend d’une personne qui se joint volontairement au groupe et y
demeure pour le but commun d’apporter ses efforts personnels à la cause du
groupe.
L’appartenance
au groupe ne comprend pas les personnes qui n’avaient aucune connaissance
de la fin
criminelle ou des actes de l’organisation.
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