Date: 20100303
Docket: IMM-2896-09
Citation: 2010 FC 246
Ottawa, Ontario, March 03,
2010
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
JOSE
HENRY MONGE CONTRERAS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of the
Immigration Division of the Immigration and Refugee Board, dated April 28,
2009, finding that the applicant was inadmissible to Canada pursuant to
paragraphs 34(1)(f) for 34(1)(b) of the IRPA and consequently issuing a deportation
order against the applicant. These are my reasons for dismissing the
application.
Background
[2]
Mr.
Monge Contreras, the applicant, was born in El Salvador on March 19,
1971.
[3]
The
applicant’s family was forced to relocate from the village of Cinqueras
to San
Salvador
due to the actions of state security forces in 1979-1980. In San Salvador, the
applicant’s father became involved with the Farabundo Marti Para La Liberacion
Nacional (FMLN), making his house available for the covert storage of FMLN
weapons and munitions (pistols, rifles and detonators).
[4]
The
FMLN is an organization that attempted the subversion by force of the Government
of El Salvador in the 1980s. After peace accords were signed in 1992, all armed
FMLN units were demobilized and their organization became a legal political
party. The FMLN is now one of the two major political parties in El Salvador.
[5]
It
was the applicant’s father’s decision to hide weapons for the FMLN in the
family home. At that time this involvement began, the applicant was 14 years
old.
Upon request of his father, in approximately 1985-1986, on two occasions the
applicant passed a bag of weapons to persons he assumed were members of the
Urban Commandos of the FMLN. At that time, the applicant was aware that the
FMLN destroyed bridges, hydro posts, was involved in kidnappings and killed
government officials.
[6]
In
1992, the applicant obtained a membership card in the FMLN when the
organization became a legitimate political party and worked in their election
campaign.
[7]
The
applicant arrived at the Fort Erie Canadian border on August 9, 2005 and
claimed refugee protection. When interviewed by the immigration authorities,
the applicant stated that he was a member of the “Urbanos Commandos” and the
FMLN. The
applicant indicated that he was responsible for hiding weapons and bomb
materials for the Urbanos Commandos, and that those weapons and bomb materials
were used to blow up government facilities, bridges, power lines, and in other
offensive attacks.
[8]
At
his August 11, 2005 interview by the CBSA, the applicant indicated that he had
voluntarily collaborated with the Urbanos Commandos from 1985 to 1989, and that
he became a member as a result of the problems his family faced at the hands of
the Armed Forces. The applicant indicated that he became a member through his
father, and that it was his duty and his father’s to keep the Urbanos
Commandos’ guns, detonators, and bomb-making materials in their house.
[9]
In
his PIF narrative, the applicant stated that he was a member of the Urbanos
Commandos from 1985 to 1989.
[10]
On
May 26, 2007, the applicant was interviewed for the purposes of determining
whether or not he was reportable under sections 34 and 35 of the IRPA for his
membership and/or affiliation
with the Urbanos Commandos and the FMLN.
The immigration officer then proceeded to write inadmissibility reports pursuant
to subsection 44(1) of the IRPA.
[11]
The
Minister of Public Safety alleges that Mr. Monge Contreras is a foreign
national who is inadmissible on security grounds and also on grounds of
violating human or international rights for his membership in, and his
complicity in the acts of, the FMLN, contrary to paragraphs 34(1)(f) and
35(1)(a) of the IRPA.
Decision Under Review
[12]
In
a decision supported by extensive reasons, the panel member found that it had
been established, on reasonable grounds, that the applicant is a member of the
FMLN, an organization that is believed, on reasonable grounds, to have engaged
in, or instigated, the subversion by force of the Government of El Salvador.
[13]
As
the applicant had not discharged the burden of proof on him to establish that
the facts constituting inadmissibility did not exist, Mr. Monge Contreras was
found inadmissible to Canada pursuant to paragraph 34(1)(f) for 34(1)(b) of the
IRPA.
[14]
Relying
on Justice Snider’s decision in Al Yamani v. Canada (Minister of Citizenship
and Immigration), 2006 FC 1457, [2006] F.C.J. No. 1826, the panel analysed
the two main elements of an allegation at paragraph 34(1)(f) of the IRPA,
namely membership in the organization, and the involvement of the organization
in acts of espionage, subversion or terrorism.
[15]
When
before the Immigration Division, the applicant had attempted to distance
himself from the organization by stating that he was neither a member nor a
collaborator of the FMLN. The panel found that the applicant’s attempt to
extricate himself from the statements he made merely raises issue about his
credibility, and the retraction of pertinent information and the recantation of
key evidence are logically viewed with some scepticism.
[16]
Relying
on Diaz v. Canada (Minister of Citizenship and Immigration), (1997), 135
F.T.R. 235, [1997] F.C.J. No. 1102, the panel was persuaded that the
applicant’s original statements to CBSA in 2005 are credible and should be
given more weight than his subsequent modification, resorted to when he gained
a good understanding of the risk of inadmissibility he faced under paragraph
34(1)(f) of the IRPA.
[17]
The
panel considered that the applicant joined the FMLN, as a son carrying out the
instructions of his father, when he was about 14 years of age. By 1989, when
his affiliation is alleged to have ceased, he would have been about 18 years of
age. In 1992, when he received the membership card of the FMLN and worked for
that organization for about three months, he would have been about 22 years of
age.
[18]
In
considering the culpability or responsibility of minors as in Poshteh v.
Canada (Minister of Citizenship and Immigration), 2005 FCA 85, [2005]
F.C.J. No. 381, the panel found that the applicant’s maturation makes it
difficult to sustain the argument that he was a minor who did not have the
requisite knowledge or mental capacity to decipher for himself the kind of
organization
that the FMLN was and its modus operandi. The panel
also noted that there is no evidence before it to suggest that the applicant
was ever coerced into doing things for the organization by his father.
[19]
The
panel also found compelling evidence in the Minister’s Disclosure that showed
the membership of Mr. Monge Contreras in the organization in the years 1985 to
1992 which coincides with the time period that the organization was involved in
acts of subversion.
[20]
Again
by relying on Justice Snider’s decision in Al Yamani, above, at paras.
11-14, the panel found that it was abundantly clear that a temporal connection
was not required for the establishment of an allegation under paragraph
34(1)(f).
[21]
The
panel concluded that the FMLN is an organization that falls within the purview
of paragraph 34(1)(b) of the IRPA as it engages, has engaged, or will engage,
in subversive activities and that the applicant, by lending a modicum of
support to the FMLN, has assisted in some way the furtherance of the FMLN’s
subversive agenda.
Issues
[22]
The
sole issue is whether the panel’s decision was reasonable when it found that
the applicant was inadmissible to Canada pursuant to paragraph
34(1)(f) for 34(1)(b) of the IRPA.
Analysis
[23]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008]
S.C.J. No. 9,
the Supreme Court of Canada abandoned the patent unreasonableness
standard leaving only two standards of review, correctness and reasonableness.
The Supreme Court also held that a standard of review analysis need not be
conducted in every instance. Where the standard of review applicable to the
particular question before the court is well-settled by past jurisprudence, the
reviewing court may adopt that standard of review.
[24]
As
recently explained by Deputy Judge Frenette in Motehaver v. Canada (Minister of
Public Safety and Emergency Preparedness), 2009 FC 141, [2009]
F.C.J. No. 190, at para. 11:
…the issue of whether an applicant is a
member of an organization referred to in paragraph 34(1)(f) is reviewed on a
standard of reasonableness, as it is a question of fact and law (Poshteh v.
Canada (M.C.I.), [2005] 3 F.C.R. 487 (F.C.A.); Afridi v. Minister of
Public Safety and Emergency Preparedness et al., 2008 FC 1192; Faridi v.
Minister of Citizenship and Immigration, 2008 FC 761).
[25]
Accordingly,
the standard of review to be applied in this case is reasonableness.
[26]
In
my view, the panel conducted a thorough review of the evidence before it. As
the applicant has not discharged the burden of proof on him to establish that
the facts constituting inadmissibility did not exist, I am satisfied that the
panel’s conclusion that Mr. Monge Contreras is inadmissible to Canada pursuant
to paragraph 34(1)(f) for 34(1)(b) of the IRPA is legally unassailable.
[27]
Taking
into consideration that Mr. Contreras was nervous during his initial interviews
and considered the actions of the CBSA officers intimidating, the panel’s
finding that the applicant’s attempt to distance himself from his port-of-entry
admissions was not credible is reasonable. The panel simply did not believe the
applicant’s later story on the extent of his father’s influence, over that
which he had advanced from the time of his initial interviews in 2005 and 2006
through to the time just before his admissibility hearing: Zazai v. Canada
(M.C.I.), 2004 FC 1356, [2004] F.C.J. No. 1649, at para. 22; affirmed by
the Federal Court of Appeal in: 2005 FCA 303, [2005] F.C.J. No. 1567.
[28]
The
member considered
that the applicant’s involvement began when he was a minor, and, as such, that
he was acting under the direction and control of his father. As in Poshteh,
above, this issue was reasonably evaluated. The panel found that the
applicant’s maturation over the years of activity with the FMLN made it
difficult to sustain the argument that the applicant was a minor who did not
have the requisite knowledge or mental capacity to decipher for himself the
kind of organization that the FMLN was and its modus operandi.
[29]
Even
if I were to accept that the nature of the FMLN changed over the years at issue
and that it became a separate and distinct body, the evidence indicates that the
applicant was involved with the FMLN from 14 years of age until he was approximately
22 years of age by which time the FMLN had become a legitimate political party.
He can’t sever that earlier involvement from the point at which he formally
joined the evolved organization.
[30]
While
the applicant did not join or support the FMLN of his own free will when he was
14 years of age, the fact that he remained involved with the organization until
he was 22 years of age, is indicative of a degree of adult participation.
[31]
As
stated by Justice Snider in Al Yamani, above, at para. 11, there is no temporal
component to the analysis in paragraph 34(1) (f). If there are reasonable
grounds to believe that an organization engages today in acts of terrorism, engaged
in acts of terrorism in the past or will engage in acts of terrorism in the
future, the organization meets the test set out in s. 34(1)(f).
[32]
Membership,
in the context of paragraph 34(1)(f) of the IRPA, is to be given a broad and
unrestricted interpretation, since in immigration legislation, public safety
and internal security are highly important: Motehaver, above, at para.
29.
[33]
I
note that the applicant was aware, through the media in El Salvador at the time
of his involvement with the FMLN, that the organization for which he hid
weapons and bomb material in the family home used such material to blow up
government facilities, bridges, power lines, and in other offensive attacks.
[34]
The
panel gave clear and intelligible reasons supporting its decision, drawing
inferences from the facts provided by the applicant himself in his PIF, his
interviews and his testimony: Motehaver, above, at para. 28. Moreover,
the panel had the benefit of hearing the applicant’s evidence directly.
[35]
Accordingly,
I find that the Immigration Division did not make unreasonable findings in
concluding that Mr. Monge Contreras is inadmissible under paragraph 34(1)(f)
for 34(1)(b) of the IRPA. I agree with the panel that the applicant has not
discharged the burden of proof on him to establish that the facts constituting
inadmissibility do not exist.
[36]
The
decision of the panel falls within the range of possible,
acceptable outcomes which are defensible in respect of the facts and the law: Dunsmuir, above, at para. 47.
[37]
Having
found that the decision of the panel was a reasonable result in this case, it
is not open to this Court to substitute its own view of a preferable outcome: Canada (Citizenship
and Immigration) v. Khosa, 2009 SCC 12, [2009] S.C.J. No. 12, para. 59.
[38]
The parties were given an opportunity to propose questions
for certification. As
set out in paragraph 74(d) of the IRPA and Rule 18(1) of the Federal Courts
Immigration and Refugee Protection Rules / SOR 93-22, as amended, there can
be no appeal of this decision if the Court does not certify a question.
[39]
Relying
on the Federal Court of Appeal’s decision in Poshteh, above, the
applicant proposed that the Court certify a question whether, in addition to
the applicant’s minor age at the time of the alleged membership in an
organization defined under subsection 34(1) of the IRPA, it is relevant to
consider the social context of that membership including the degree of parental
influence and control within the society in question.
[40]
The
respondent is opposed to the certification of such a question.
[41]
In Zazai
v. Canada (Minister of Citizenship
and Immigration),
2004 FCA 89, [2004] F.C.J. No. 368, the threshold for certification was
articulated by the Federal Court of Appeal as: "is there a serious
question of general importance which would be dispositive of an appeal"
(paragraph 11).
[42]
In Kunkel
v. Canada (Minister of
Citizenship and Immigration), 2009 FCA 347, [2009] F.C.J. No. 170, at para.
8, citing its 2006 decision in Boni v. Canada (Minister of Citizenship and
Immigration), 2006 FCA 68, [2006] F.C.J. No. 275, at para.10, the Federal
Court of Appeal determined that a certified question must lend itself to a
generic approach leading to an answer of general application. That is, the
question must transcend the particular context in which it arose.
[43]
In Boni,
supra, the Federal Court of Appeal stated that “it would not be
appropriate for the Court to answer the certified question because the answer
would not do anything for the outcome of the case (Canada (Minister of Citizenship and Immigration) v.
Liyanagamage, [1994] F.C.J. No. 1637, (1994) 176 N.R. 4).”
[44]
In
my view, it would not be appropriate to certify the question proposed by the
applicant as it would not be dispositive of this case. The panel took into
consideration the applicant’s age and the fact that he was subject to his father’s
control when his involvement began, in arriving at its decision.
JUDGMENT
IT IS THE JUDGMENT OF THIS COURT that the
application is dismissed. No question is certified.
“Richard
G. Mosley”
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