2012 FC, 2012 FC 1086

Date: 20120918 Docket: IMM-9279-11 Citation: 2012 FC 1086 Ottawa , Ontario , September 18, 2012 PRESENT: THE CHIEF JUSTICE BETWEEN: RONALD ANTONIO CASTELLON VIERA Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] The Applicant, Ronald Antonio Castellon Viera, is a citizen of El Salvador. He was found by the Immigration Appeal Division (IAD) of the Immigration and Refugee Board of Canada to be inadmissible to Canada based on his uncontested membership in the Mara Salvatrucha (MS) gang.

He joined the MS, also known as the MS-13, sometime between the age of ten or 12 and voluntarily left it when he was 15 or 16. [ 2 ] The IAD and the Immigration Division each found that the MS is a criminal organization within the meaning of paragraph 37(1) (

a) of the Immigration and Refugee Protection Act , SC 2001, c. 27 [IRPA]. They also both determined that Mr. Castellon did not have the requisite mental capacity to form the intent to join the MS, but that he did achieve that mental capacity sometime before he left the gang. [ 3 ] However, they disagreed on whether he had remained with the MS under duress after he achieved that mental capacity. The Immigration Division found that, after he achieved the requisite mental capacity, Mr.

Castellon remained with the gang under duress until he departed “when the earliest real opportunity presented itself.” By contrast, the IAD found that he had not made out the test for duress, after finding certain aspects of his testimony to be implausible and after finding that he was unreliable as a witness. The IAD stated that this undermined his overall credibility and that it preferred the testimony of two other witnesses. The IAD appears to have relied primarily, or to at least a significant degree, on the evidence of those two witnesses in finding that Mr.

Castellon had not established the test for duress. [ 4 ] Mr. Castellon submits that the IAD erred by:

a. failing to determine that either (

a) the decision of the Immigration Division was wrong in law or fact or mixed law and fact,or (

b) a principle of natural justice had not been observed, as set forth in paragraphs 67(1)(

a) and (

b) of the IRPA; b. failing to make a determination described in paragraphs 67(1)(

a) or (b), on a balance of probabilities; c. making a negative credibility finding against him without affording him an opportunity to be heard; and d. making an unreasonable finding with respect to his credibility. [5] For the reasons that follow, I have concluded that the IAD did not commit the first two errors alleged by Mr. Castellon, butthat it did commit the third. Accordingly, this application will be granted, without the need to address the fourth issue. I. Standard of Review [6] The first two issues raised by Mr. Castellon concern the scope of the IAD’s jurisdiction.

Accordingly, they are reviewableon a standard of correctness (Dunsmuir v New Brunswick, 2008 SCC 9, at para 59, [2008] 1 S.C.R. 190 [Dunsmuir]; Canada (Minister ofCitizenship and Immigration) v. Khosa, 2009 SCC 12, at para 42, [2009] 1 SCR 339 [Khosa]). [7] The third issue is a question of procedural fairness, which is subject to review on a standard of correctness (Dunsmuir, above,at paras 55, 79 and 87; Khosa, above, at para 43). [8] Had it been necessary to address fourth issue raised by Mr.

Castellon, regarding the reasonableness of the IAD’s finding withrespect to his credibility, that issue would have been reviewable on a standard of reasonableness (Dunsmuir, above, at paras 51-55;Khosa, above, at paras 46-47; Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC62 , [2011] 3 SCR 708, at paras 11 - 18). II. Analysis A. Did the IAD err by failing to determine that either (

a) the decision of the Immigration Division was wrong in law orfact or mixed law and fact, or (

b) a principle of natural justice had not been observed, as set forth in paragraphs 67(1)(

a) and (

b) of theIRPA? [9] Mr. Castellon asserts that the IAD erred by failing to consider or mention paragraphs 67(1)(

a) and (b), which were the onlygrounds upon which the IAB had the jurisdiction to allow the Minister’s appeal from the Immigration Division' s decision. Statedalternatively, he asserts that the IAD erred by ignoring the lower tribunal’s decision and looking at the case afresh.

I disagree. [10] It is now settled that an appeal before the IAD is “a hearing de novo in a broad sense” (Kahlon v Canada (Minister ofEmployment and Immigration), 1989 FCJ No 104, at para 5 [Kahlon]; Mohamed v Canada (Minister of Employment and Immigration),[1986] 3 FC 90, at paras 9-13 (CA) [Mohamed]; Singh v Canada (Minister of Citizenship and Immigration), 2005 FC 1963, at para 8; Niv Canada (Minister of Citizenship and Immigration), 2005 FC 241, at para 9; Canada (Minister of Citizenship and Immigration) vSavard, 2006 FC 109, at para 16; Canada (Minister of Citizenship and Immigration) v Venegas, 2006 FC 929, at para 18; ContrerasMendoza v Canada (Minister of Citizenship and Immigration), 2007 FC 934, at paras 17-20 [Contreras Mendoza]). [11] Accordingly, the IAD is not limited to determining whether the Immigration Division correctly or reasonably concluded that aperson seeking admission to Canada was of an inadmissible class.

Rather, the IAD is required to determine whether the person is in factinadmissible (Mohamed, above; Kahlon, above; Contreras Mendoza, above). Contrary to Mr. Castellon’s submissions, there is nothingin the IRPA or the jurisprudence which limits the exercise of de novo jurisdiction by the IAD to situations in which new evidence whichwas not before the Immigration Division has been adduced. [12] It follows from the foregoing that the IAD was not required to give any deference to the Immigration’s Division’s findings, orto explicitly state that either (

a) the Immigration Division’s decision was wrong in law or fact or mix law and fact, or (

b) a principle of

natural justice had not been observed. It is sufficient for this Court to find, upon a review of the IAD’s decision as a whole, that the IADwas in fact satisfied, at the time the appeal was disposed of, that either (

a) the decision appealed was wrong in law or fact or mixed factand law, or (

b) a principle of natural justice had not been observed. [13] Having reviewed the IAD’s decision, I have no difficulty finding that the IAD was in fact satisfied that the ImmigrationDivision’s decision was wrong for reasons of mixed fact and law. [14] At the outset of its decision, the IAD correctly articulated its task as being to determine whether, “based on all the evidencebefore the panel … there [are] reasonable grounds to believe that the respondent is inadmissible as a member of a criminal organizationpursuant to paragraph 37(1)(a)” of the IRPA. [15] Among other things, the IAD proceeded to note that Mr.

Castellon had acknowledged that he is a foreign national, that theMS is a criminal organization within the meaning of paragraph 37(1)(

a) of the IRPA, and that he was a member of the MS. [16] The IAD then turned to the issue of whether Mr. Castellon ought not to be considered to have been a member of the MS basedon his age and level of understanding at the time of his involvement with that organization.

After quoting excerpts from Poshteh vCanada (Minister of Citizenship and Immigration) 2005 FCA 85, at paras 51 and 53, the IAD found that the reasoning in that case,which concerned an allegation of membership in a terrorist organization by person who was a minor at the time, applied equally tomembership in a criminal organization. [17] The IAD then reviewed the evidence and agreed with the Immigration Division’s finding that the evidence established thatMr. Castellon’s membership in the MS commenced before the age of 12.

However, it noted that whereas the Immigration Divisionfound that his membership “ended in his mid-teens, well before he reached the age of majority,” the IAD could only conclude that hismembership ended before he came an adult, but not necessarily “well before” that time, given his acknowledgment to an enforcementofficer that he left the MS when he was “like 17.” [18] The IAD proceeded to note that Mr.

Castellon's activities with the MS included transporting quantities of cocaine, robbingpeople and businesses of their belongings and money while armed with a knife, witnessing serious crimes that included seeing twopeople murdered by fellow gang members, and being present at meetings where he heard other gang members planning and discussingmurders.

The IAD also noted that while he was committing his crimes, he wore the gang’s colors and identifying clothing and hisvictims were able to identify his gang membership because of his tattoos. [19] After discussing the test for duress, as it was briefly discussed in Ramirez v Canada (Minister of Employment andImmigration), (FCA), [1992] 2 FC 306, at para 40, the IAD discussed Mr.

Castellon's testimony regarding his effortsto obtain help from the school that he attended to leave the gang, the risks that he believed he faced if he attempted to leave the gang, andhis eventual departure from the gang to join a “rehabilitation centre.” The IAD also discussed the testimony of an expert who testified onbehalf of the Minister, as well as the testimony of someone who had worked at the school that Mr. Castellon attended. [20] Ultimately, the IAD concluded that Mr.

Castellon had not made out the first of the three conjunctive elements of the test forduress, namely, that he faced a situation of “imminent physical peril” (Oberlander v Canada (Attorney General), 2009 FCA 330, at para25). Accordingly, the IAD concluded, based on all of the evidence before it, that Mr. Castellon is a person described in paragraph37(1)(

a) of the IRPA. [21] Given the foregoing, I have no difficulty concluding that the IAD satisfied itself that the Immigration Division’s decisionwas wrong for reasons of mixed fact and law. After correctly articulating the scope of its jurisdiction, the IAD correctly stated the test tobe applied on the key issue of duress and discussed the testimony of Mr. Castellon and two other witnesses.

Ultimately, the IAD foundthat the facts did not establish that there were reasonable grounds to believe that a person of his age, intelligence and experience wouldhave apprehended that “he was in such imminent physical peril as to deprive him of [the] freedom to choose the right and refrain from thewrong.” In making that finding, the Board implicitly satisfied itself that the decision appealed from was wrong for reasons of mixed factand law, as provided by paragraph 67(1)(

a) of the IRPA. [22] Mr. Castellon further asserted that the principles of estoppel and res judicata prevented the IAD from reversing theImmigration Division’s decision without new evidence and without regard to the grounds of appeal set forth in subsection 67(1) of theIRPA. I disagree.

[23] As discussed above, the IAD did implicitly conclude that the Immigration Division’s decision on the issue of duress waswrong in mixed fact and law. In so doing, it met the precondition to its exercise of jurisdiction set forth in paragraph 67(1)(a). Given thatthe Immigration Division’s decision was not a “final” decision, the principles of issue estoppel and res judicata do not apply (Danyluk vAinsworth Technolgies Inc., 2001 SCC 44, at para 25, [2001] SCR 460; Angle v Minister of National Revenue, (SCC),[1975] 2 SCR 248 at paras 20-25). B. Did the IAD err by failing to make a determination described in paragraphs 67(1)(

a) or (b), on a balance ofprobabilities? [24] Mr. Castellon asserted that the IAD cannot allow an appeal of the Immigration Division unless it is satisfied, on a balance ofprobabilities, that the Immigration Division erred. I disagree. [25] In my view, Mr.

Castellon’s position would undermine the precautionary and preventative rationale underlying the“reasonable grounds to believe” standard of proof in paragraph 37(1)(a) (Re Jaballah, 2010 FC 79, at paras 58-59, and 64). [26] As noted above, the IAD is not limited to determining whether the Immigration Division correctly or reasonably concludedthat a person seeking admission to Canada is of an inadmissible class.

Rather, the IAD is required to determine whether the person is infact inadmissible (Mohamed, above; Kahlon, above; Contreras Mendoza, above; Rattan v Canada (Minister of Employment andImmigration), [1994] FCJ No 32, at para 7 [Rattan]). In other words, on an appeal from the Immigration Division, the IAD is inessentially the same position as was the Immigration Division. In the context of this case, that means that its task was to determine if Mr.Castellon was inadmissible to Canada based on the test set forth in paragraph 37(1)(

a) of the IRPA, and the rules of

interpretation setforth in

section 33. Those rules state, in unambiguous terms, that “[t]he facts that constitute inadmissibility under sections 34 to 37include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe thatthey have occurred, are occurring or may occur.” [27] Accordingly, the IAD did not err by failing to find, on a balance of probabilities, that the decision of the Immigration Divisionwas wrong in law or fact or mixed law and fact. C. Did the IAD err by making a negative credibility finding without affording Mr.

Castellani an opportunity to be heard? [28] Mr. Castellon asserts that the IAD erred by failing to inform him that it intended to reassess the credibility of his testimonyand by failing to afford him an opportunity to testify in person, as he had done before the Immigration Division. I agree. [29] The IAD initially scheduled an oral hearing in this matter. However, the parties made a joint written application on July 7,2011 for that hearing to be cancelled, and for the appeal to be conducted in writing.

The basis for their position was as stated as follows:“Neither party intends to call further evidence and both intend to rely exclusively on the Record of Appeal and make legal submissions”(emphasis added). [30] Mr. Castellon’s subsequent written submissions to the IAD, dated August 17, 2011, also clearly reflect that he understood theappeal would be confined to questions of law. At page 2 of those submissions, he stated as follows: The Respondent and Minister agreed to limit the appeal to written representations without producing new evidence. This is appropriateas the issues raised by the appellant are legal.

Therefore, any errors alleged by the Minister must be on the face of the record. [31] With respect to the issue of duress, Mr. Castellon’s submissions clearly reflect that he was under the impression that the IADwas required to accord “significant deference” to the Immigration Division’s determination. [32] Given the foregoing, the IAD should have (

i) notified Mr. Castellon that it intended to revisit the question of his credibility onthe issue of duress, and (ii) afforded him an opportunity to make further submissions on that issue. By failing to do so, the IAD breachedMr. Castellon's procedural fairness rights.

D. Did the IAD err by making an unreasonable finding with respect to Mr. Castellon's credibility? [33] Given the conclusion that I have reached with respect to the third issue raised by Mr. Castellon, it is not necessary to addressthis issue. III. Conclusion [34] This application for judicial review is granted. IV. No Question for Certification [35] Mr. Castellon proposed the following two questions for certification: 1.

When the Minister appeals a decision by the Immigration Division to the Immigration Appeal Division, pursuant to subsection63(5) of the IRPA, does the Minister have to prove there was an error in fact, law, or mixed fact and law made by the ImmigrationDivision on a balance of probabilities? 2.

When the Minister appeals a decision by the Immigration Division to the Immigration Appeal Division, pursuant to subsection63(5) of the IRPA, and where the parties agree to conduct the proceedings in writing on the ground that the question to be decided issolely a legal issue and not based on credibility, is it a procedural error for the IAD to determine the case on credibility grounds withoutallowing the Respondent the opportunity to have an oral hearing? [36] Counsel to the Minister opposed both of the proposed questions on the ground that they disclose no serious issue and wouldnot be determinative of an appeal.

I agree. [37] Paragraph 74(

d) only allows for the certification of “a serious question of general importance.” In my view, neither of Mr.Castellon’s proposed questions meet this standard. [38] As to the first of the proposed questions, the jurisprudence has consistently confirmed that the IAD is not limited todetermining whether the Immigration Division correctly or reasonably concluded that a person seeking admission to Canada is of aninadmissible class. Rather, the IAD is required to determine whether the person is in fact inadmissible (Mohamed, above; Kahlon, above;Contreras Mendoza, above; Rattan, above).

When making such determinations, the IAD is in essentially the same position as was theImmigration Division. That is to say, it must determine whether Minister has established the reasonable grounds to believe contemplatedby paragraph 37(1)(

a) and

section 33. [39] The decisions in Asgharpour-Khiabani v Canada (Minister of Citizenship and Immigration), 2009 FC 810, at para 20 andBrace v Canada (Minister of Public Safety and Emergency Preparedness), 2010 FC 582, at para 14, are distinguishable. In brief,Ashgharpour-Khaibani did not involve a hearing in respect of which the statutory standard of proof contemplated by paragraph 37(1)(a)and

section 33 applied. As to Bruce, above, the focus of the Court’s analysis was upon the IAD’s treatment of the humanitarian andcompassionate considerations contemplated by paragraph 67(1)(

c) and the relevant assessment factors that have been identified in Ribic vCanada (Minister of Employment and Immigration), [1985] IABD No 4 (QL) and approved by the Supreme Court of Canada in Chieu vCanada (Minister of Citizenship and Immigration), 2002 SCC 3 , [2002] 1 SCR 84, at para 90. Moreover, in Brace, JusticeHarrington expressly qualified his statement with the underlined words in the following passage: “Unless a statute provides otherwise,there is only one standard of proof before civil tribunals, and that is the balance of probabilities.” (Emphasis added.)

[ 40 ] As to the second proposed question, it contemplates a fact pattern that is unique to the facts of this case. It is therefore not an appropriate question for certification. JUDGMENT THIS COURT ORDERS AND ADJUGES THAT: 1. The decision of the Immigration Appeal Division (“IAD”), dated November 24, 2011 is set aside and remitted to a differently constituted panel of the IAD for reconsideration in accordance with these reasons. 2. There is no question for certification. "Paul S. Crampton" Chief Justice FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-9279-11 STYLE OF CAUSE: RONALD ANTONIO CASTELLON VIERA v.

THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Vancouver, British Columbia DATE OF HEARING: August 23, 2012 REASONS FOR JUDGMENT AND JUDGMENT: Crampton CJ. DATED: September 18, 2012

APPEARANCES : Gabriel Chand FOR THE APPLICANT Helen Park FOR THE RESPONDENT SOLICITORS OF RECORD : Chand & Company Barristers & Solicitors Vancouver , British Columbia FOR THE APPLICANT Myles J. Kirvan Deputy Attorney General of Canada FOR THE RESPONDENT