Docket: IMM-2995-15
Citation:
2016 FC 425
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, April 18, 2016
PRESENT: The Honourable Madame Justice Gagné
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BETWEEN:
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CARLOS MARTINEZ ATHIE
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Applicant
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and
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THE MINISTER OF
PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondent
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JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
Carlos Martinez Athie is applying for
judicial review of a decision wherein the Immigration Appeal Division [IAD]
reversed the Immigration Division’s [ID] decision and concluded that the
applicant is inadmissible on grounds of organized criminality, under
paragraph 37(1)(a) of the Immigration and Refugee Protection Act,
S.C. 2001 c. 27 [IRPA].
II.
Facts
History
[2]
The applicant is a Mexican citizen who was
38 years old at the time of his hearing before the IAD. When he was
11 years old, his family immigrated to the United States and established
itself in Glendale, a suburb of Los Angeles. Unlike his father, the applicant
never obtained permanent resident status in the United States, but he lived
there up until he was deported to Mexico at age 27.
[3]
While he was in Glendale, the applicant attended
Thomas Jefferson Elementary School for grades 5 and 6 and he
began Grade 7 at Roosevelt Junior High School. He said that, during
that time, he was the subject of intimidation by his classmates because of his
Mexican citizenship and his strong Spanish accent. The applicant changed
schools during the year and began to attend Windsor Middle School,
situated in the neighbouring municipality of Pasadena. He had to take the bus
to get to school and says that he continued to be intimidated during the ride.
[4]
When he arrived at Windsor, he met a
young man named Poncho, who quickly became a good friend. Poncho apparently
convinced the applicant that if he got a tattoo, he would come across as a
tough guy and that, in doing so, he would resolve his intimidation problem. It
was in this context that, at age 14, the applicant apparently got
16 tattoos in the space of two months. He said that he simply copied
Poncho’s tattoos without knowing their meaning. Four of the applicant’s
16 tattoos show the letters “TVR,” which refer to a street gang in
the Glendale area known as “Toonerville” or “Toonerville Rifa,”
while others are more generally associated with the street gang culture. The
applicant confirmed that because of his tattoos, the Windsor students
stopped intimidating him.
[5]
The applicant insists that he did not know the
significance of his tattoos when he had them put on.
[6]
At the secondary level, the applicant attended Hoover
High School. He said Hoover was a gang‑infested school and
that it was then that he learned what the letters TVR meant,
which he had tattooed on his body. He was beaten up a few times when members of
the rival Westside Locos gang noticed his tattoos. He added that these
gang members called him a “leva,” which was Spanish for a “wannabe.”
[7]
The applicant only spent a few months at Hoover,
after which he quit school. However, it was during these few months that the
applicant’s father apparently noticed his son’s tattoos for the first time. He
allegedly first noticed a cross on his hand, and a few weeks later, he
apparently noticed the tattoos on the applicant’s back while he was sleeping.
In order to punish him for his bad behaviour at Hoover and for getting
tattoos, the applicant’s father reportedly decided to send him to Mexico for
one year.
[8]
In Mexico, the applicant worked on his uncle’s
farm and returned to Glendale in about March 1994.
[9]
On the evening of December 2, 1994, the
applicant, who did not hold a driver’s licence, took his father’s car to pick
up his younger brother. The applicant said that to get to the gas station to
fill up, he had to drive down an alleyway where there were members of the Westside
Locos street gang. The applicant apparently tried to back his car up
towards the car behind him, to gun it forward to disperse the group. He
reportedly continued driving down a few streets, without stopping at stop signs
and was eventually stopped by the police.
[10]
The applicant was charged with assault “with
a deadly weapon other than a firearm” and detained in a youth detention
centre for 19 days. On December 21, 1994, the panel sentenced him to
6 months at the “Challenger” camp—a boot camp for young offenders.
The applicant apparently only stayed at the Challenger camp for three or
four months. When he was released, he returned to Glendale but since he did not
feel safe there, he left for Philadelphia, where his mother and his brothers
were already living.
[11]
In 2005, the applicant was deported from
the United States to Mexico.
[12]
He came to Canada on December 3, 2008, on a
visitor visa and claimed refugee status a few months later. The applicant
claims that he feared for his life in Mexico after he witnessed a murder
committed by a drug trafficker who belonged to the Zetas, in the
nightclub where he worked as a manager.
Interview with a Canada
Border Services Agency representative
[13]
The applicant was summoned for an interview with
Officer Cynthia Giguère from the Canada Border Services Agency [CBSA]. During
that interview, Officer Giguère had a report prepared by a CBSA colleague,
entitled [translation] “Tattoo
Assessment Report” on the applicant.
[14]
At the start of the interview, the officer
informed the applicant that she would specifically be questioning him on his
run‑ins with the American justice system. The following table illustrates
all of the information in the Certified Tribunal Record. As regards the
incidents that occurred in Glenville [sic] when the applicant was a
minor, which can be linked to Toonerville, at the time of the initial
interview, only the events of February 23, 1992, and December 2,
1994, shown in bold below, were known to the officer.
[15]
The officer questioned the applicant about the
December 2, 1994 incident. He first replied that he could not remember
anything, then after a few minutes, he confirmed that [translation] “that event was related to when he was arrested
by police for continuing to drive a vehicle through several streets and failing
to stop despite the stop signs.” According to the officer’s interview report,
the applicant apparently said that a Westside Locos gang member
recognized him in the alley as someone who associates with the Toonerville
gang.
[16]
The applicant said that following his arrest on
December 2, 1994, his parents voluntarily sent him to “bootcamp”
for three or four months.
[17]
The officer questioned him further about his
involvement with the Toonerville gang. The applicant admitted that he
hung out with Toonerville members in Glendale and that, as a result, he
had problems with the police. The officer noted that the applicant tried to
conceal the meaning of his tattoos. He did not directly admit that he was a
member of Toonerville, but below is an exchange taken from the interview
report between the officer (A) and the applicant (S), which led to
the applicant’s arrest at the end of the interview:
A: What are the letters that you have on
your chest?
S: These are my initials, CMA.
A: The letters don’t look like CMA at
all, it seems to be TVR?
S: It could be…
A: Yes, it’s TVR.
S: Yes.
A: What does it mean?
S: Toonerville Rifa.
A: The other tattoo on your arm, it’s not
JVR it’s TVR too?
S: Yes.
A: So, it seems that you have been a
little bit more implicated in the Toonerville gang then [sic] just hanging out
with members of this gang.
S: Yes, but I wasn’t implicated in their
criminal activities.
A: I supposed that because of the tough
neighbourhood in which you grew up you didn’t really have the choice to be part
of the gang if you wanted to be protected by them?
S: Yes. I was young. I did stupid things.
I’m ashamed of my tattoos now. It’s a shame for all my family.
A: Ok, I don’t want to talk anymore now
because I have to arrest you. I’m arresting you because I have reasonable
grounds to believe that you are inadmissible in Canada according to the article
37 of the [IRPA] related to the fact that you are a member or you have been a
member of a criminal organization.
[18]
Immediately following the interview, the officer
prepared her report from her handwritten notes. That same day, she prepared a
report under subsection 44(1) of the IRPA, to the effect that the
applicant was inadmissible under paragraph 37(1)(a) of the IRPA.
The CBSA then issued a referral for an admissibility hearing.
[19]
Prior to the applicant’s inadmissibility
hearing, Officer Giguère added some information to her interview report
that she describes as small details with respect to the applicant’s previous
addresses and employment history. She also prepared a [translation] “Complementary Tattoo Assessment Report” to
complete the list and the analysis of the applicant’s tattoos, as well as the
applicant’s comments provided about them during the interview.
ID hearing
[20]
The ID hearing lasted several days and several
witnesses were heard: the applicant, his spouse, his father and the two CBSA
officers. That list also included two expert witnesses: Detective
Rafael Quintero with the Glendale Police Service testified for the
respondent, and Mr. Alex Alonso, a sociologist who specializes in
Los Angeles street gangs, testified for the applicant.
[21]
In his testimony before the ID, the applicant
denied several facts reported by Officer Giguère. For example, he denied
having admitted that he hung around with Toonerville members, that the
gang had replaced his family to some extent, or that he apparently said “Yes, I was young. I did stupid things.” According to
him, Officer Giguère invented many of the facts stated in her interview
report. The applicant said that neither the officer’s handwritten notes, nor
her final report, can be trusted.
[22]
Moreover, the respondent introduced into
evidence a police information sheet that states that the applicant apparently
told the police officer that he was no longer active in the Toonerville
gang (“he said he was no longer active”).
The applicant denied the reported statements and affirmed that he had simply
said that he was not a Toonerville gang member.
[23]
Regarding the December 2, 1994 incident and
the sentence imposed on him, the applicant was confronted about the
contradiction between the version he provided during his interview with
Officer Giguère and the evidence submitted before the ID. He said that he
believed the Court had consulted his father before issuing the order. The
applicant’s father confirmed that the Court had spoken to him and that he had
agreed, but that it was up to the Court to make a decision.
[24]
On April 5, 2011, the ID concluded that the
applicant was not inadmissible for organized criminality. It noted that the
only factor that would suggest that the applicant was a member of Toonerville
was the presence of tattoos on his body. Apart from this factor, according to
the ID, the evidence did not establish that there were reasonable grounds to
believe that the applicant participated in gang activities. It should be noted
that the ID did not admit as evidence the record of the applicant’s run-ins
with the American justice system, except for his stay at the Challenger camp.
IAD hearing
[25]
The respondent filed an appeal of that decision
and a new hearing was scheduled before the IAD. During a pre‑trial
conference, the parties agreed that no new evidence would be provided before
the IAD and that counsel would only make oral representations.
[26]
At the start of the hearing, counsel for the
respondent indicated that she had prepared written representations, a copy of
which she provided to the IAD and to counsel for the applicant. Counsel for the
applicant objected but the IAD reassured her by guaranteeing her that it would
have no impact on how it would address both parties’ representations.
III.
Decision being challenged
[27]
The IAD quashed the ID’s decision. A significant
part of the IAD decision deals with the applicant’s tattoos, but the decision
also addresses the applicant’s history of run‑ins with the American
justice system, the information on the police information sheets submitted as
evidence, and the fact that the applicant apparently concealed the meaning of
his tattoos from his spouse, until they caused him problems with the Canadian
authorities.
[28]
First, the IAD noted that
Detective Quintero’s testimony should not have been rejected by the ID for
the simple fact that he stated that an individual under police arrest
automatically has a criminal record. He referred to databases used by police
officers, which generally store charges that have been withdrawn and that have
resulted in acquittals. The IAD prefers the testimony of
Detective Quintero, who has more direct experience with the Toonerville
gang than Mr. Alonso, who only has general knowledge of Hispanic gangs in
the Los Angeles area.
[29]
The IAD also concluded that the ID erred in
dismissing the evidence related to the applicant’s run‑ins with the
American justice system. It found this to be a highly relevant piece of
evidence in examining the situation of a refugee claimant suspected of being a
current or past member of a street gang.
[30]
As regards the circumstances surrounding the
applicant’s decision to get tattoos, and the very nature of these tattoos, the
IAD noted that there are several contradictions between the testimonies of the
applicant and his father before the ID, the CBSA interview report, and certain
other pieces of evidence in the record. It found a general lack of credibility
on the part of the applicant and his father. The IAD’s key findings can be
summarized as follows:
[translation]
The
applicant changed his testimony about the identity of the artist who allegedly
applied his tattoos. He initially said that they were done by the father of his
friend Alex, a professional tattoo artist. However, after a review of the CBSA
report revealed that they were amateur tattoos, the applicant instead said that
Poncho had applied several of his tattoos. Confronted with this contradiction,
the IAD concluded that the applicant’s tattoos were done by Toonerville
members;
There
are discrepancies between the testimonies of the applicant and his father
regarding the time at which he apparently first noticed the tattoos. The
applicant said that when his father noticed his tattoos as he was sleeping, he
was so angry that he had to flee to an uncle’s home. Yet his father said that
he had a discussion with his son when he discovered the tattooing on his hand,
and that it was not until a month later that the uncle allegedly intervened;
The
IAD did not believe that the father allegedly did not find out about his son’s
tattoos until a year and a half after the fact;
The
applicant was unable to provide a credible explanation as to how he believed
the letters TVR that he had tattooed on his body, which he believed at
the time stood for “trolley train,” would protect him from being
intimidated by his classmates. The IAD did not believe that the applicant did
not know what the tattoos meant when they were applied;
The
IAD did not believe the applicant’s alleged reason for getting tattoos.
According to Detective Quintero’s testimony, a non‑gang member of Toonerville
would not have tattoos of that gang’s emblem put on without the risk of being
beaten up or killed;
The
applicant and his father affirmed before the ID that Glendale was a beautiful
city and that they lived in a quiet, rich neighbourhood. However, during his
interview with CBSA, the applicant instead said that there were several street
gangs in his neighbourhood and at Hoover. Detective Quintero also
confirmed that the street on which the applicant’s family lived was in Toonerville
territory;
The
applicant denied several facts reported by Officer Giguère, but the IAD
found the information in that report to be reliable and accurate;
The
IAD noted that it was unreasonable for the ID to have excluded the interview
report because of Officer Giguère’s handwritten notes, which the
respondent was also not obligated to produce;
Based
on Ishaku v. Canada (Citizenship and Immigration), 2011 FC 44
[Ishaku] in which that Court concluded that a person’s first story is
usually the most genuine and authentic, the IAD placed considerable weight on
the applicant’s statements made during the interview with Officer Giguère;
The
IAD reviewed the applicant’s run-ins with the American justice system and did
not believe that the applicant was in Westside Locos territory by chance
at the time of the incidents on December 2, 1994. During that
period, the applicant was very familiar with the territories of the different
street gangs in Glendale and the surrounding area;
The
IAD found that the applicant was probably not sent to Mexico solely because of
his tattoos, but rather due to his delinquent behaviour and his run‑ins
with the law;
The
IAD did not believe that the applicant was detained at the Challenger
camp solely due to the incident on December 2, 1994, given the fact that
this camp was considered a last‑resort solution for dealing with young
offenders;
The
IAD placed weight on Detective Quintero’s testimony on the rationale
behind the police information sheets and it did not believe the applicant when
he denied that he told the police officer that he was no longer an active
member of Toonerville;
Lastly,
the IAD found that if the applicant had truly had himself tattooed to protect
himself from being harassed at school, it is not reasonable that he did not
explain their meaning to his spouse before he ran into problems with the
Canadian authorities.
[31]
The IAD therefore found that, as a whole, the ID
erred in fact and in law and that the respondent discharged his burden of proof
to demonstrate that there were reasonable grounds to believe that the applicant
had been a member of a criminal organization, Toonerville, beginning
in 1991.
IV.
Issues in dispute and standards of review
[32]
This application for judicial review raises the
following issues:
A.
Did the IAD comply with its duty of
procedural fairness in not granting the applicant an opportunity to be heard?
B.
Did the IAD comply with the principles of
procedural fairness in accepting the written arguments from counsel for the
respondent, when the parties had agreed to make oral representations only?
C.
Did the IAD err in concluding that there were
reasonable grounds to believe that the applicant was a “member” of the Toonerville street gang?
[33]
It is well-known that the first two issues
brought forward by this application must be reviewed by applying the standard
of correctness (Dunsmuir v. New Brunswick, 2008 SCC 9, at
paragraph 50 [Dunsmuir]; Canada (Citizenship and Immigration) v.
Khosa), 2009 SCC 12, at paragraph 43).
[34]
As regards the third issue, the applicant
maintains that the test for membership in an organized criminal group is an
issue of law that should also be reviewed by this Court by applying the
standard of correctness (Mendoza v. Canada (Public Safety and Emergency
Preparedness), 2007 FC 934, at paragraph 13 [Mendoza]).
[35]
First, the Mendoza decision preceded Dunsmuir,
which, at paragraph 54, teaches us that an administrative tribunal’s
interpretation of its enabling legislation must be reviewed on the standard of
reasonableness. This was confirmed in Alberta (Information and Privacy
Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, at
paragraph 34. Moreover, in Mendoza, the Court applied the standard
of correctness in the test for membership in an organized criminal group.
However, it applied the standard of reasonableness on the issue of mixed fact
and law, i.e. whether the IAD had erred in concluding that there was sufficient
evidence of that membership; this is the issue that concerns us here.
[36]
I am therefore of the opinion that the standard
of review that applies to the conclusion whereby a person is a member of an
organization described under paragraph 37(1)(a) of the IRPA is one
of reasonableness (Lennon Sr v. Canada (Public Safety and Emergency
Preparedness), 2012 FC 1122, at paragraphs 13-14; Talavera
Morales v. Canada (Public Safety and Emergency Preparedness),
2010 FC 768, at paragraph 7 [Talavera]; He v. Canada
(Public Safety and Emergency Preparedness), 2010 FC 391, at
paragraph 24).
V.
Analysis
A. Did the IAD comply with its duty of procedural fairness
in not granting the applicant an opportunity to be heard?
[37]
The applicant argues that the IAD should have
given him the chance to testify before it or to respond to its concerns about
his and his father’s credibility. The applicant relies on the decision by this
Court in Castellon Viera v. Canada (Citizenship and Immigration),
2012 FC 1086, at paragraph 32 [Castellon Viera] to affirm
that by failing to do so, the IAD breached his procedural fairness rights.
[38]
However, the facts in Castellon Viera are
distinguishable from those before me because in this case, the parties had
agreed that the appeal would only address questions of law. In spite of that
agreement, the IAD re‑examined the applicant’s credibility and it is in
this context that the Court found that it had breached the principles of
procedural fairness. In this case, the respondent’s Notice of Appeal raised
both questions of law and questions of fact, particularly the fact that the ID
had placed inappropriate weight on the testimonies of the applicant and his
father. The applicant knew that his credibility would be questioned before the
IAD and he was not caught by surprise.
[39]
That said, the IAD was not required to confront
the applicant about his own contradictions. I restate here what was said by my
colleague Justice Noël in D’Amico v. Canada (Citizenship and
Immigration), 2013 FC 470:
[51] . . . It must be presumed that
during successive testimony, the same factual answers will be given. An
applicant, whose obligation is to be truthful in his answers, does not have to
be confronted with his own inconsistencies [citations omitted].
. . .
[53] The principles of natural justice,
applicable in appeal proceedings like this one, do not require that the
applicant be confronted with his contradictions from two testimonies given
under oath during the same proceeding in connection with all the documentary
evidence submitted by the parties. . . .
[40]
The parties had agreed not to submit new
evidence. The applicant thereby allowed the IAD to re‑examine the entire
file, including his testimony. It was therefore open to the IAD to take into
account the applicant’s successive testimonies and their resulting
contradictions, as well as the documentary evidence on file. Moreover, it did
so in compliance with the principles of procedural fairness.
B. Did the IAD comply with the principles of procedural
fairness in accepting the written arguments from counsel for the respondent,
when the parties had agreed to make oral representations only?
[41]
The applicant argues that in accepting the
written arguments made by counsel for the respondent, the IAD ignored the
agreement between the parties, which constitutes a second breach of the
principles of procedural fairness (Castellon Viera, above, at
paragraphs 29‑30).
[42]
I do not agree with the applicant because at the
very beginning of the hearing the IAD acknowledged the parties’ position and
outlined the issue before it:
… I did listen to the CD of the preliminary
conference that was done by my former colleague … I’ve also noted that
following the preliminary conference there was an understanding between you two
that you would be doing … oral submissions only and … you are not presenting or
redoing the … hearing of the ID.
[43]
When counsel for the respondent said that she
planned to follow her written submissions and that she offered a copy of them
to the IAD and to counsel for the applicant, the latter objected. The IAD
accepted a copy of the written submissions, while reassuring the parties that
it would consider them in the same way as oral representations:
... [Me Cohen’s written submissions] will be
used as a guide by myself, but it’s the same thing as if after the hearing I
re-listen to the CD of the submissions. It’s exactly the same thing. So I don’t
mind in which form you give me the submissions. I will consider them and if
[Me] Cohen wants to give them to me … in writing, and you yourself as well I’ll
accept them, but whether I hear them orally or I read them I writing, for me it
… makes no difference, okay? So I just want that to be clear.
[44]
Insofar as the respondent’s oral representations
essentially reproduced his counsel’s written submissions and insofar as the IAD
indiscriminately took into account both parties’ submissions, I do not see how the
IAD allegedly failed to comply with any principle of procedural fairness.
C. Did the IAD err in concluding that there were
reasonable grounds to believe that the applicant was a “member” of the
Toonerville street gang?
[45]
The applicant raised several errors committed by
the IAD: (i) it did not analyze the applicant’s knowledge of Toonerville
criminal activities when he got his tattoos; (ii) it determined that he
was a member of the Toonerville gang based solely on his testimony and
his tattoos; (iii) its decision is based on evidence that is not credible
and unreliable; (iv) it excluded important evidence, such as
Mr. Alonso’s testimony; and, (v) it did not assess the evidence
relating to coercion.
[46]
To conclude that there are “reasonable grounds
to believe” that the acts attributed to the applicant have occurred, are
occurring or may occur, within the meaning of section 33 of the IRPA, more
than a mere suspicion must exist, but less than proof on a balance of
probabilities. There must be an objective basis for the belief which is based
on compelling and credible information (Mugesera v. Canada (Minister
of Citizenship and Immigration), [2005] 2 S.C.R. 100, at
paragraph 114; Talavera, above, at paragraph 11).
[47]
That said, I cannot conclude as the applicant
asked me to do, that the IAD did not consider the applicant’s testimony to the
effect that he was not aware of the meaning of his tattoos, or of Toonerville
criminal activities, when he got his tattoos. The IAD instead concluded that it
did not believe the applicant. It reached that conclusion after having analyzed
the applicant’s tattoos and the circumstances surrounding his decision to have
himself tattooed, on 31 pages of its decision. That said, even if the
applicant did not know the meaning of his tattoos when he had them applied, he
acknowledged that as soon as he began attending Hoover High School, he
discovered their meaning. From that time on, he also had “personal knowledge of the criminal activities of other
members of the gang, acting on behalf of the gang” (Amaya v. Canada
(Public Safety and Emergency Preparedness), 2007 FC 549, at
paragraph 27).
[48]
I also do not believe that the IAD only relied
on the applicant’s tattoos in determining that he was a member of Toonerville.
First, the IAD must be presumed to have considered all of the evidence in the
record (Florea v. Canada (Minister of Employment and Immigration),
[1993] F.C.J. No. 598 (FCA) (QL); Herrera Andrade v. Canada
(Citizenship and Immigration), 2012 FC 1490, at
paragraph 11). Moreover, its decision demonstrates that it took into
account all of the evidence. The IAD discussed the applicant’s tattoos, his
testimony and that of his father, the testimony of Officer Giguère and the
two expert witnesses extensively. It analyzed Officer Giguère’s interview
report and her written notes, the police information sheets, and the record of
the applicant’s run-ins with the American justice system. Lastly, it considered
the fact that the applicant concealed the meaning of his tattoos from his
spouse up until the CBSA questioned him in this regard. Contrary to the
applicant’s claims, the IAD analyzed that evidence cumulatively.
[49]
It was open to the IAD to consider
Officer Giguère’s interview report as credible and reliable. The officer’s
interview notes hold significant probative value and she had no interest in
recording false information (Muthui v. Canada (Citizenship and Immigration),
2014 FC 105, at paragraphs 49‑50). It is also true that a
person’s first story is usually the most genuine (Ishaku, above, at
paragraph 53). It was reasonable for the IAD to conclude that the
information in that report is accurate and consistent with the documentary
evidence, despite the fact that the applicant subsequently denied having made
most of the statements recorded in the report. The IAD properly noted that the
applicant denied the most prejudicial information against him. The IAD was also
able to conclude that the fact that Officer Giguère’s handwritten notes
were not reproduced verbatim in her interview report was not sufficient
grounds to simply exclude that evidence.
[50]
The IAD also took into account the fact that, in
cross‑examination, Officer Giguère admitted that contrary to what was
stated in her report, the applicant never acknowledged being a member of Toonerville.
However, she was able to conclude that this was not a determining factor with
respect to the question whether there were “reasonable grounds to believe” that
the applicant had been a member of Toonerville. In this context, the
term “member” must be interpreted in an unrestricted and broad sense (Chiau
v. Canada (Minister of Citizenship and Immigration), [2001]
2 FC 297 (FCA), at paragraph 25 [Chiau]; Poshteh v.
Canada (Minister of Citizenship and Immigration), 2005 FCA 85,
at paragraphs 27, 29 [Poshteh]) and there was other evidence before
the IAD that supported its conclusion.
[51]
For example, the IAD accorded considerable
weight to Detective Quintero’s testimony. Contrary to the applicant’s
argument, the IAD explained why it accorded more weight to the testimony of Detective Quintero
than that of Mr. Alonso. The IAD clearly explained that
Detective Quintero had extensive experience with the Toonerville
gang, whereas Mr. Alonso had little, and he was not familiar with the Westside
Locos gang, one of the rival gangs of Toonerville.
[52]
The IAD also accepted Detective Quintero’s
testimony on the content and objective of the police information sheets. One of
the sheets states that the applicant said he was no longer active in the Toonerville
gang, clearly suggesting that at one point he had been an active member. The
IAD “considered the police source evidence credible and
trustworthy . . . and such a decision is entirely within its discretion”
(Sittampalam v. Canada (Minister of Citizenship and Immigration),
2006 FCA 326, at paragraph 53 [Sittampalam]).
[53]
As regards the applicant’s testimony concerning
the incident on December 2, 1994, the IAD did not believe that the
applicant simply took the wrong road and that he ended up in the Westside
Locos alley by accident. This conclusion is reasonable in light of the
version the applicant gave Officer Giguère, to the effect that he passed
by the Westside Locos territory that evening. Moreover, he admitted that
once he was at Hoover, he was very familiar with the various Glendale
gangs.
[54]
The IAD took into account the applicant’s run‑ins
with the American justice system, both as a minor and as an adult. It was open
to the IAD to take into account the charges that were withdrawn or which did
not result in a guilty verdict in order to determine whether the applicant had
discharged his burden of proof (Magtibay v. Canada (Minister of Citizenship
and Immigration), 2005 FC 397, at paragraphs 12, 17).
Clearly, a charge that has been withdrawn or which did not result in a
conviction could not alone support the finding for membership in an organized
criminal group (Sittampalam, above, at paragraph 50). However, in
this case, the IAD considered the totality of the evidence and it is the
cumulative effect of all these elements that supports its finding (Thaneswaran
v. Canada (Citizenship and Immigration), 2007 FC 189, at
paragraph 46).
[55]
Lastly, I reject the applicant’s argument to the
effect that the IAD should have examined the issue of coercion and concluded
that he was forced to get tattooed to stop the intimidation he was a victim of
at the time. That argument was not raised before the ID, nor before the IAD,
and I have difficulty in seeing how the applicant could expect it to be
examined. I would add to this that the test of the applicant’s membership in Toonerville
does not end when he got his tattoos; rather, it covers the entire period when
the applicant was living in Glendale. The applicant did not submit any evidence
to show that once he was in high school, he was forced to hang out with Toonerville
members.
VI.
Question for certification
[56]
The applicant is asking me to certify the same
question of general importance as the one certified by Justice Martineau in Castelly
v. Canada (Citizenship and Immigration), 2008 FC 788, at
paragraph 42 [Castelly], as follows:
For the purposes of paragraph 37(1)(a)
of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27, what is the general definition of “member”, and what test must one
apply to determine whether a person is or was a “member” of an “organization”
described in that paragraph?
[57]
The applicant opposed this and referred me to
the Federal Court of Appeal decisions in Chiau, above, at
paragraphs 25 and 57, and Poshteh, above, at paragraphs 27 to
29, in which the Court refused to establish precise and exhaustive criteria,
stating only that this term must be interpreted in a broad, unrestricted sense.
[58]
First, I note that the decisions to which the
applicant referred me do not bar Martineau J. from certifying the same
question in Castelly. And since that decision was not subject to an
appeal, I find that the situation described by Martineau J. still exists:
[42] I note that the Act does not
define the term “member” and that the courts have not established a precise
definition of the term or a test for “belonging to” an organization described
in paragraph 37(1)(a) of the Act. In the last few years at least,
case law of the Federal Court and Federal Court of Appeal has not been
consistent on the issue of a test relevant to determining whether someone is a
member of a criminal organization. For example, should the panel refer to the
specific criteria recently restated in Sinnaiah
(and cited with approval in Amaya) or is it sufficient for it to
base its decision on the more general statements found in Chiau, which is
older? How should “institutional link” be interpreted, and is this concept
relevant to the operation of paragraph 37(1)(a) of the Act (which I
seriously doubt for the reasons stated above)? If applicable, should that test
be applied alternatively or subsidiarily to that of “personal knowledge” of the
group’s criminal activity?
[59]
I would add to this reflection that, despite the
fact that the issue before me did not address this point, I am left with some
sense of unease about the fact that the essential, if not all, facts attributed
to the applicant occurred when he was a minor. There is no evidence that the
applicant participated in any organized criminality as an adult and given that
the Toonerville gang is a gang situated in Glendale, it cannot be
presumed that he maintained any contact whatsoever with them when he left for
Pennsylvania at the age of 17. I find that in a democratic society such as
Canada, where the treatment of young offenders is very different than that
reserved for adult criminality, it might be appropriate to take into
consideration the age of a refugee claimant when he was a member of a criminal
group and the particular circumstances of that membership—for example,
considering whether the evidence does not show that the applicant continued
that membership as an adult before finding him inadmissible on grounds of
organized criminality.
[60]
In other words, I find that the facts of this
case lend themselves more to an analysis of that issue than Castelly,
in which the applicant was an adult at the time of the facts warranting her
inadmissibility on grounds of organized criminality and in which these facts
were contemporary to the inadmissibility decision. I am also of the opinion
that this question could very well be determinative on an appeal in this case.
VII.
Conclusion
[61]
For all these reasons, this application for
judicial review is dismissed but the following question is certified:
For the purposes of paragraph 37(1)(a)
of the IRPA, what is the general definition of “member”, and what test must one
apply to determine whether a person is or was a “member” of an “organization”
described in that paragraph?
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