Date: 20070524
Docket: IMM-3991-06
Citation: 2007 FC 549
Ottawa, Ontario, May 24,
2007
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
OSMAN
AMAYA
Applicant
and
THE
MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application
for judicial review of a decision made by a panel of the Immigration Division
(Panel) of the Immigration and Refugee Board in which the Panel determined the
Applicant to be inadmissible to Canada under subsection 37(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c.27 (IRPA) for being a
member of an organized crime group.
[2]
The Applicant is a
citizen of El Salvador. He arrived at the Canadian border on
March 1, 2006 and claimed refugee protection. At the time of his arrival he
admitted to having been a member of the Mara Salvatrucha 13 (MS-13) gang in El Salvador between 1992 and approximately 1996 or 1997.
[3]
The Applicant provided
further information regarding his membership in MS-13 during interviews at the
port of entry on March 1 and 6, 2006. He described being initiated into a
particular clique of the gang in 1992 by being beaten at a party for 12 to 14
seconds and told the border officer he was tattooed at 14 or 15 years of age.
He also described some activities of the gang, stating that the
organization got money by stealing or selling drugs, or by asking for money
from people. However, he stated that he had no responsibilities in the group,
including never killing or stealing, although he admitted that he visited a gang
member in jail and tried to recruit youth into the gang, successfully
recruiting one person. He stated that he attended gang meetings and that money
was collected every eight days.
[4]
The Applicant also claimed
at the border that he ceased being a gang member in 1996 or 1997 and just
distanced himself from the group. He based his refugee claim on fear of personal
harm from gang members of MS-13 and other gang members in El Salvador, stating that he was shot and stabbed in June or July
2005 by “Maras”.
[5]
An admissibility
hearing took place on May 8, 17 and 24, 2006. One of the principle issues in
dispute was whether the Applicant was inadmissible on the grounds of organized
criminality under paragraph 37(1)(a) of IRPA. Much of the testimony of the
Applicant was inconsistent with his evidence before the officer at the port of
entry. Of importance here was his statement that he actually joined MS-13 only
in 1995 and that his earlier description of his initiation into the gang in
1992 was not true.
[6]
On July 5, 2006, the
Panel found the Applicant to be a person described under paragraph 37(1)(a) and
issued a deportation order against him.
[7]
The Panel found
reasonable grounds to believe that the MS-13 gang is an “organization”
as envisaged by paragraph 37(1)(a).
[…] It is
comprised of a group of persons, that there is a hierarchy and structure to the
gang. There are leaders and followers. The group is identified by tattoos and
the group has a primary purpose of engaging in criminal activities where
members derive a benefit from its activities. The evidence shows that the gang
is not one that has formed randomly for the immediate commission of a single
offence. It is obvious that MS-13 has been existence many years and that
criminality is a major portion of their on-going, continuing activities
providing financial security among other things.
[8]
The Panel then assessed
whether the Applicant was a member of MS-13. The Panel found that membership
simply required belonging to the gang, noted that the Applicant admitted
membership, and stated that there were other indicia of membership, including
the Applicant’s tattoos. Thus, the Panel concluded that it was more
likely than not that the Applicant joined MS-13 in 1992, as he
originally stated at the port of entry.
[9]
The Panel further
concluded based on the Applicant’s testimony and statements taken at the border
that the Applicant was aware of the activities of the MS-13 clique he was
associated with. The Panel stated that “[the Applicant] had a personal
knowledge of the criminal activities of other MS-13 members in his ‘clique’ and
clearly tolerated their activities that provided financial gain to the group.”
[10]
The Panel, having
established MS-13 to be an “organization” and the Applicant a “member”, then
addressed whether MS-13 engaged in the types of crime envisaged under the
provision.
[11]
The Panel dismissed the
credibility of the Applicant on the basis he provided two different stories at
the port of entry and the hearing, and outlined in detail all of the
contradictions in the testimony of the Applicant and vagueness in the
testimony. However, the Panel’s credibility finding was related to the
Applicant’s attempts to distance himself during the hearing from the content of
his testimony at the port of entry. The Panel did not question the truthfulness
of the Applicant’s admissions and statements at the port of entry.
[12]
On the other hand, the Panel
found Mr. Alicea, a gang investigator with the New York State Police, who is
knowledgeable about MS-13 and who testified at the hearing, to be entirely
credible and determined that his evidence about MS-13 in El Salvador was also very probative. With respect to Mr.
Alicea’s error in the date upon which the civil war in El Salvador ended, the Panel noted that “ […] he did correct
this faux pas before his testimony ended. There was no hint or indication that
he was trying to mislead this tribunal.” The Panel concluded that there
was credible and trustworthy evidence to conclude that the MS-13 organization
was believed on reasonable grounds to have engaged in criminal activities and
that Mr. Amaya was a person described in paragraph 37(1)(a).
RELEVANT LEGISLATION
[13]
Paragraph 37(1)(a) of
IRPA governs the inadmissibility of persons on the grounds of organized
criminality and provides as follows:
|
37(1) A
permanent resident or foreign national is inadmissible on grounds of
organized criminality for
(a) being a
member of an organization that is believed on reasonable grounds to be or to
have been engaged in activity that is part of a pattern of criminal activity
planned and organized by a number of persons acting in concert in furtherance
of the commission of an offence punishable under an Act of Parliament by way
of indictment, or in furtherance of the commission of an offence outside of
Canada that, if committed in Canada, would constitute such an offence, or
engaging in activity that is part of a pattern.
[…]
|
37(1) Emportent interdiction de territoire pour criminalité organisée
les faits suivants :
a) être membre d’une organisation
dont il y a des motifs raisonnables de croire qu’elle se livre ou s’est
livrée à des activités faisant partie d’un plan d’activités criminelles
organisées par plusieurs personnes agissant de concert en vue de la perpétration
d’une infraction à une loi fédérale punissable par mise en accusation ou de
la perpétration, hors du Canada, d’une infraction qui, commise au Canada,
constituerait une telle infraction, ou se livrer à des activités faisant
partie d’un tel plan;
[…]
|
ISSUES
[14]
a.
Did the Panel err in
finding that the MS-13 gang was an organization described in paragraph 37(1)(a)
of IRPA engaged in criminal activities in Usulutan between 1992 and 1997?
b.
Did the Panel err in
finding the Applicant had the necessary mens rea to be deemed inadmissible
under paragraph 37(1)(a) of IRPA?
ANALYSIS
[15]
The questions at issue both
involve applying the facts of the case to the legal tests arising from the
legislation. In Thanaratnam v. Canada (M.C.I.), [2006] 1 F.C.R. 474, 2005
FCA 122, a case examining the scope of section 37 of IRPA, Justice Evans
concluded at paragraph 27 that determining whether there was sufficient
evidence to conclude there was “reasonable grounds to believe” an
Applicant was “engaging in activity that is part of” a pattern of
criminal activity was a question of mixed fact and law. However, because the
issues were largely fact-based, Justice Evans concluded the appropriate
standard was patently unreasonable. Thus, where the issues in this case engage
questions that are largely fact-based, they will be reviewed against a patently
unreasonable standard. However, where the issues involve questions which are
less factually intensive, the reasonableness standard will be applied.
1) Existence of MS-13 in the 1990s
in Usulutan
[16]
The Panel heavily relied
on the testimony of Mr. Hector Alicea. The Applicant submits that the Panel
erred in placing so much reliance on his testimony. Mr. Alicea testified that
the deportations were taking place in the mid-1980s. The Applicant notes that
Mr. Alicea also testified initially on at least two occasions that the civil
war in El Salvador ended in 1979. He admitted he was wrong as
to the end date of the war only in cross-examination. Thus, according
to the Applicant, Mr. Alicea’s timeline was off by a similar period of
time, meaning that the deportations to El Salvador happened not in the mid-1980’s but from the mid-1990’s and following. The
Applicant notes that this finding is crucial as the Panel relied
on Mr. Alicea’s testimony in support of the finding that the gang engaged in
criminal activities during the period when the Applicant was involved. Mr.
Alicea also testified that the gang was extremely active between 1992 and 1995
in Usulutan, El Salvador, the area in which the
Applicant lived. Thus, the Applicant submits that, although the
MS-13 may have engaged in the criminal activities that Mr. Alicea alleged, that
would have been the activity and presence of the organization at a later date,
not the time period when the Applicant was involved.
[17]
In reviewing the
documentary evidence alone, it would appear that the gangs only moved into El Salvador en masse in the 1990s. There are several
references to this deportation policy in the documentary evidence. The article
by Crime and Justice International notes that the MS-13 street gang was not even formed in the United States until the late 1980s. The article by the National
Alliance of Gang Investigators Associations that the gang was formed in Los Angeles in the late 1980s.This is also the testimony of Dr.
Valdez, who testified in an earlier Honduran MS-13 case before the Immigration
and Refugee Board. Dr. Valdez claims that MS-13 was well established in Honduras and other Central American countries by the middle
part of the 1990s. The Maldon Institute states that the Maras originated in Los Angeles in the mid-1980s and that deportations were reported in “mid-1990s”. The
Maldon Institute article specifies that the first wave of
deportations to El Salvador began in 1993. However, the Immigration
and Refugee Board research publication raises the possibility that deportations
began during January 1990 (although that statement focuses on deportations of
Salvadoran citizens in general). Finally, the article from Crime and Justice
International notes that the gang has terrorized El Salvador since the end of the civil war in 1992. None of the documentary evidence
provided specifies different dates during which time gangs began operating in
different areas of the country, nor does any of the documentary evidence state
that when the gangs initially formed they did not commit the same criminal acts
as they had committed in the United
States.
[18]
However, in light of
the documentary evidence, there is some concern with Mr. Alicea’s testimony. First,
Mr. Alicea, clearly got the end date of the El Salvadoran civil war incorrect
twice, a fact he only admitted in cross-examination. Second, he
identified the wave of deportations as taking place in the early to mid-1980s,
which was also clearly at odds with all of the documentary evidence. He
admitted in cross-examination that he had no specific contacts in Usulutan,
although he has contacts with the El Salvador National Police. He admitted if
he needed information from the El Salvador police he would have to request the
FBI to make contact with the El
Salvador government. He
stated he had not made these requests. Thus, Mr. Alicea’s evidence with respect
to MS-13 in Usulutan, El Salvador does not
seem to be as reliable as the Panel concluded, particularly given the
importance of those two facts to the matter in issue.
[19]
In many respects, this
point appears to be irrelevant because the Applicant himself admitted
unequivocally in his statutory declaration that he was a member of the MS-13
between 1995 and 1996 or 1997. Thus, the only questions remaining are
whether or not this group was an “organization” in Usulutan at that time and
whether the Applicant had sufficient mens rea to be a member.
[20]
The scope of
organization as defined must be narrowed to the smallest component where the
organizations are factionalized. Thus, it is the MS-13 clique in Usulutan that
must be defined as an organization. See Bedoya v. Canada (M.C.I.), 2005
FC 1092 at paragraph 20. Justice O’Reilly provided a comprehensive overview
of what constitutes an organization for the purposes of section 37 in Thanaratnam
v. Canada (M.C.I.), [2004] 3 F.C.R. 301, 2004 FC 349 at paragraphs 29 to
31, reversed on other grounds, [2006] 1 F.C.R. 474 (C.A.), 2005 FCA 122.
No guidance is given in the Immigration Act or the Immigration
and Refugee Protection Act as to what an "organization" is. By
contrast, the Criminal Code, R.S.C. 1985, c. 46, s. 467.1(1) defines a
"criminal organization" in some detail. It states that a criminal
organization is a group, "however organized", that is made up of
three or more persons and "has as one of its main purposes or
activities" the commission of serious criminal offences that would likely
yield some kind of benefit to the members of the group. Specifically, a
criminal organization under the Code does not include "a group of persons
that forms randomly for the immediate commission of a single offence".
The Criminal Code's definition does not apply directly to the
immigration setting. However, I believe it is noteworthy that the Code does not
require any particular formalities or decision-making arrangements. Presumably,
to meet the definition, a group must have some form of organizational
structure. The words "however organized" suggest that it must be
organized in some fashion, but there are no minimum or mandatory attributes
that the group must have.
Here, the two Tamil groups described by the police had some
characteristics of an organization - identity, leadership, a loose hierarchy
and a basic organizational structure - and I can therefore find no error in the
Board's conclusion that they fell within the terms of s. 37(1)(a) of the Immigration
and Refugee Protection Act.
[21]
Thus Justice O’Reilly
refers to the definition of “criminal organization” provided in subsection
467.1(1) of the Criminal Code as a reference point, and concludes that
the requirement of organizational structure should be broadly interpreted.
[22]
Justice O’Reilly’s
approach to the definition of organization was affirmed by Justice Linden of the
Federal Court of Appeal in Sittampalam v. Canada (M.C.I.), 2006 FCA
326. Justice Linden clarified two issues on appeal. First, Justice Linden
confirmed that the provision does not require current membership. Thus, a
person can be inadmissible for a prior association. Second, Justice Linden
confirmed at paragraph 36 that the definition of organization is to be given a
broad and unrestricted definition and affirms the interpretation of
organization provided for by Justice O’Reilly at paragraphs 38 to 40:
Recent jurisprudence supports this interpretation. In Thanaratnam v.
Canada (Minister of Citizenship and Immigration), [2004] 3 F.C.R. 301
(T.D.), reversed on other grounds, [2006] 1 F.C.R. 474 (C.A.), O'Reilly J. took
into account various factors when he concluded that two Tamil gangs (one of
which was the A.K. Kannan gang at issue here) were "organizations"
within the meaning of paragraph 37(1)(a) of the IRPA. In his opinion, the two
Tamil groups had "some characteristics of an organization", namely
"identity, leadership, a loose hierarchy and a basic organizational
structure" (para. 30). The factors listed in Thanaratnam, supra, as
well as other factors, such as an occupied territory or regular meeting
locations, both factors considered by the Board, are helpful when making a
determination under paragraph 37(1)(a), but no one of them is essential.
These criminal organizations do not usually have formal structures like
corporations or associations that have charters, bylaws or constitutions. They
are usually rather loosely and informally structured, which structures vary
dramatically. Looseness and informality in the structure of a group should not
thwart the purpose of IRPA. It is, therefore, necessary to adopt a rather
flexible approach in assessing whether the attributes of a particular group
meet the requirements of the IRPA given their varied, changing and clandestine
character. It is, therefore, important to evaluate the various factors applied
by O'Reilly J. and other similar factors that may assist to determine whether
the essential attributes of an organization are present in the circumstances.
Such an interpretation of "organization" allows the Board some
flexibility in determining whether, in light of the evidence and facts before
it, a group may be properly characterized as such for the purposes of paragraph
37(1)(a).
With respect to the appellant's argument that criminal jurisprudence
and international instruments should inform the meaning of a criminal
"organization", I disagree. Although these materials can be helpful
as interpretive aides, they are not directly applicable in the immigration
context. Parliament deliberately chose not to adopt the definition of
"criminal organization" as it appears in section 467.1 of the Criminal
Code, R.S. 1985, c. C-46. Nor did it adopt the definition of
"organized criminal group" in the United Nations Convention
against Transnational Organized Crime (the "Convention"). The
wording in paragraph 37(1)(a) is different, because its purpose is different.
[23]
Justice Linden
concluded at paragraph 55:
The word
"organization", as it is used in paragraph 37(1)(a) of the IRPA, is
to be given a broad and unrestricted interpretation. While no precise
definition can be established here, the factors listed by O'Reilly J. in Thanaratnam,
supra, by the Board member, and possibly others, are helpful when making a
determination, but no one of them is an essential element. The structure of
criminal organizations is varied, and the Board must be given flexibility to
evaluate all of the evidence in the light of the legislative purpose of IRPA to
prioritize security in deciding whether a group is an organization for the
purpose of paragraph 37(1)(a). […]
[24]
In reviewing the
testimony of the Applicant, as well as the testimony of Mr. Alicea, it was open
to the Panel to conclude that there was some organization of the gang in
Usulutan. Although the testimony of Mr. Alicea, as discussed above, is not very
reliable as it relates to El Salvador MS-13 cliques, his evidence as to the
gang structure in the United
States is informative and
reliable. The testimony of the Applicant as to the operation of the gang in
Usulutan is consistent with Mr. Alicea’s descriptions. There were regular
meetings, with some sort of hierarchy (although the testimony of the Applicant
suggests that the hierarchy is not very strict), the gang engaged
in crimes ranging from thefts, to murders for the benefit of the gang (the
Applicant himself admits in his testimony at the hearing that he was requested
by a gang member in jail to commit a serious crime like a murder for the gang,
even though he himself did not follow through on the request). On these facts,
it was not unreasonable for the Officer to conclude that this was an
organization within the meaning of the section.
[25]
Finally, it was not patently
unreasonable to conclude that the MS-13 clique in Usulutan engaged in acts that
would constitute the types of offences envisaged by the provision. The
Applicant admits that the gang engaged in serious criminal acts such as drug
trafficking and even violent crimes, even though he does not admit that he
engaged directly in the activities.
2)
The Applicant’s requisite
mens rea necessary to constitute membership
[26]
The Panel found that the Applicant both
knew of the criminal activity of the MS-13 and that the Applicant himself
engaged in criminal activities. Although the Applicant denied active
participation, and attempted in his testimony to distance himself from the
activities of the MS-13, his statements indicate otherwise. As stated above,
the Panel’s credibility findings related not to the Applicant’s statements
regarding his membership, but to his statements at the hearing distancing
himself from the gang. For instance, the Panel emphasized that the Applicant
admitted to attempting to recruit new members (and successfully recruiting one)
and admitted to collecting money for the organization within the community
(although not to doing so under threat). He visited a fellow member who was
incarcerated. He attended meetings and paid dues to benefit the gang.
[27]
Admittedly, this does
not demonstrate that he personally engaged in serious crimes. However, the
Panel is also able to support its finding by referencing the fact that the
Applicant had personal knowledge of the criminal activities of other members of
the gang, acting on behalf of the gang. In Chiau v. Canada (M.C.I.), [2001]
2 F.C. 297 (F.C.A.), application for leave dismissed [2001] S.C.C.A. No. 71,
the Federal Court of Appeal held at paragraph 57 that membership in an
organized crime group (as the provision was defined under the previous
legislation) simply means “belonging to” the organization.
[..] However,
by equating being a "member" with "belonging to" a criminal
organization, the Trial Division Judge correctly concluded that, in this
context, the term should be broadly understood. […]
[28]
Thus, membership
includes a person who merely belongs to a criminal organization. In making
this determination, Justice Evans confirmed the finding of the trial judge. At
paragraph 25, he restated the trial judge’s finding as follows:
As for the meaning of
"member", the Judge held that, given the policy underlying paragraph
19(1)(c.2), the term "member" was not limited to a person who
actively participated in criminal acts, or to one with a membership card whose
name appeared on a membership list. Rather, it should be understood
more broadly to mean simply a person who "belonged to" the criminal
organization in question.
[29]
Justice O’Reilly sums
up these statements in Sinnaiah v. Canada (M.C.I.), 2004 FC 1576 at
paragraph 6 as follows:
To establish
"membership" in an organization, there must at least be evidence of
an "institutional link" with, or "knowing participation"
in, the group's activities: Chiau, above; Thanaratnam, above.
[30]
In sum, even if the
Applicant himself did not engage in the criminal activities, if he had
knowledge of the activities, it would appear that he met the requirements of
membership. Knowledge of the gang’s activities would appear sufficient to
satisfy any mens rea requirement.
[31]
The Applicant clearly
admitted knowledge of the criminal activities. The Panel supported its finding
that the Applicant had knowledge of the group’s activities with multiple
evidentiary references. For instance, at the port of entry, in his background
information the Applicant was asked “Have you ever been associated with a group
that used, uses, advocated or advocates the use of armed struggle or violence
to reach political, religious or ideological objectives.” The Applicant checked
off “yes” in response. He also checked “yes” to the question of whether he
“used, planned or advocated the use of armed struggle or violence to reach
political, religious or ideological objectives.” He states in the explanatory
notes to those statements that he planned violence with MS-13. He also notes that
he was detained for being involved in a fight between MS and “18”. He stated
outright that he tried to recruit youth and had one person join because of him
at the port of entry. Furthermore, his testimony suggests he knew about the physical
violence of the gang and the drug crimes. He even admitted he initiated
someone into the gang (although stating that he was forced to do so) by hitting
the person for 12 to14 seconds with his hands. This suggests that the gang was
involved in serious crimes.
[32]
Based on this evidence,
it was not patently unreasonable for the panel to conclude that the applicant
had the requisite mens rea.
JUDGMENT
[33]
The application for
judicial review is dismissed.
“Danièle
Tremblay-Lamer”
FEDERAL
COURT
NAME
OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3991-06
STYLE OF
CAUSE: OSMAN AMAYA
-and-
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: Tuesday May 15, 2007
REASONS FOR JUDGMENT AND JUDGMENT: Madam Justice Tremblay- Lamer
DATED: May 24, 2007
APPEARANCES:
Clifford Luyt FOR
APPLICANT
Alexis
Singer FOR RESPONDENT
SOLICITORS OF RECORD:
Clifford Luyt
Barrister & Solicitor
Toronto, Ontario
FOR APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR
RESPONDENT
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