Mendoza v. Canada (Minister of Public Safety and Emergency Preparedness), (2007) 317 F.T.R. 118 (FC)

• Judge: de Montigny, J.
• Court: Federal Court (Canada)
• Case Date: September 05, 2007
• Jurisdiction: Canada (Federal)
• Citations: (2007), 317 F.T.R. 118 (FC);2007 FC 934

Mendoza v. Can. (2007), 317 F.T.R. 118 (FC)

MLB headnote and full text

Temp. Cite: [2007] F.T.R. TBEd. OC.003

Roberto Ernesto Contreras Mendoza (applicant) v. The Minister of Public Safety and Emergency Preparedness (defendant)

(IMM-1160-07; 2007 FC 934)

Indexed As: Mendoza v. Canada (Minister of Public Safety and Emergency Preparedness)

Federal Court

de Montigny, J.

September 19, 2007.

Summary:

Mendoza sought refugee status in Canada. The Minister of Public Safety and Emergency Preparedness opposed the claim on the grounds that Mendoza was inadmissible on the basis that he was a member of a criminal organization (Immigration and Refugee Protection Act, s. 37(1)(a)). The Immigration Division of the Immigration and Refugee Board allowed Mendoza's claim. The Immigration Appeal Division allowed the Minister's appeal. Mendoza applied for judicial review.

The Federal Court dismissed the application.

Aliens - Topic 1747.1

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of criminal organization - Mendoza sought refugee status in Canada - He claimed that he had a difficult life in his native El Salvador - At the age of 16, he was arrested and imprisoned for illegal possession of a weapon - While in prison, his brother was killed by police officers and his sister was raped - After two years in prison, he was released free of charges - He then met Mara Salvatrucha members and joined the gang - He admitted that while a member of the gang he got tattoos, painted graffiti, carried a slingshot, taxed people on the bus, and attended meetings of the organization - He denied having personally used violence or any direct involvement in any serious crimes - Mendoza said that he became uneasy when he realized that people who did not pay the taxes on the buses might be subject to harm - He also indicated that he limited his contacts with the gang after the birth of his daughter, in 1996, but that he could not break completely from the gang and simply walk away - Mendoza left El Salvador in 2000 for the United States where he lived and worked for two years - He then came to Canada and applied for refugee status - The Minister of Public Safety and Emergency Preparedness opposed the claim on the grounds that Mendoza was inadmissible on the basis that he was a member of a criminal organization (Immigration and Refugee Protection Act, s. 37(1)(a)) - The Immigration Division of the Immigration and Refugee Board allowed Mendoza's claim - The Immigration Appeal Division allowed the Minister's appeal - Mendoza applied for judicial review - The Federal Court dismissed the application - There was ample evidence of Mendoza's admitted membership and participation in the criminal organization - Even if Mendoza did not himself participate in any serious violent crimes, he had knowledge of the criminal activities of the group - See paragraphs 22 to 32.

Aliens - Topic 1842

Exclusion and expulsion - Immigration and Refugee Board (incl. Immigration Division and Immigration Appeal Division) - Standard of review - Mendoza sought refugee status in Canada - The Minister of Public Safety and Emergency Preparedness opposed the claim on the grounds that Mendoza was inadmissible on the basis that he was a member of a criminal organization (Immigration and Refugee Protection Act (IRPA), s. 37(1)(a)) - The Immigration Division of the Immigration and Refugee Board allowed Mendoza's claim - The Immigration Appeal Division (IAD), considering its jurisdiction as an appeal de novo, allowed the Minister's appeal - Mendoza applied for judicial review - At issue was (1) whether the IAD erred in finding that it had a de novo appeal jurisdiction; and (2) whether the IAD erred in finding there was reasonable ground to believe that Mendoza was a member of a criminal organization - The Federal Court held that the first issue raised a jurisdictional question and had to do with the proper interpretation of a legislative provision (IRPA, s. 67(1)) - Accordingly, the appropriate standard of review was correctness - The second issue was split in two discrete inquiries - It involved an issue of law, i.e., what was the test for membership in an organized criminal group, reviewable on a standard of correctness - It also involved an issue of mixed fact and law, i.e., whether the IAD erred in concluding that there was sufficient evidence of Mendoza's membership and participation in a criminal organization, reviewable on a standard of patent unreasonableness - See paragraphs 12 to 14.

Aliens - Topic 1844

Exclusion and expulsion - Immigration and Refugee Board (incl. Immigration Division and Immigration Appeal Division) - Jurisdiction - Mendoza sought refugee status in Canada - The Minister of Public Safety and Emergency Preparedness opposed the claim on the grounds that Mendoza was inadmissible on the basis that he was a member of a criminal organization (Immigration and Refugee Protection Act (IRPA), s. 37(1)(a)) - The Immigration Division (ID) of the Immigration and Refugee Board allowed Mendoza's claim - The Immigration Appeal Division (IAD), considering its jurisdiction as an appeal de novo, allowed the Minister's appeal under s. 63(5) of the IRPA - Mendoza applied for judicial review, asserting that the IAD erred in finding that it had a de novo appeal jurisdiction - Mendoza submitted that Ministerial appeals under s. 63(5) were very different in nature and scope from the appeals authorized under ss. 63(1) to (4) - Accordingly, the appropriate standard of review should have been assessed through the pragmatic and functional approach - The Federal Court rejected the argument - Section 63 dealt exhaustively with the right to appeal, and set out five grounds of appeal, one of which being that the Minister could appeal a decision of the ID in an admissibility hearing - After considering the appeal, the IAD was given three options by s. 66, one of which was to allow the appeal in accordance with s. 67 - Nowhere in this section was there any distinction to be found, in terms of the nature of the appeal, between an appeal made by the Minister under s. 63(5) and other appeals authorized under ss. 63(1) to (4) - Further, s. 67(2) confirmed the de novo jurisdiction of the IAD, irrespective of the reasons for which the appeal was allowed, by stating that it could substitute its own decision for that which should have been made - See paragraphs 15 to 21.

Cases Noticed:

Chiau v. Canada (Minister of Citizenship and Immigration), [1998] 2 F.C. 642; 141 F.T.R. 81 (T.D.), affd. [2001] 2 F.C. 297; 265 N.R. 121 (F.C.A.), leave to appeal refused (2001), 286 N.R. 199 (S.C.C.), refd to. [para. 9].

Thanaratnam v. Canada (Minister of Citizenship and Immigration) (2005), 333 N.R. 233; 2005 FCA 122, refd to. [para. 14].

Singh (Amar) v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. B30; 2005 FC 1673, refd to. [para. 20].

Ni v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 165; 2005 FC 241, refd to. [para. 20].

Canada (Minister of Citizenship and Immigration) v. Savard (2006), 292 F.T.R. 10; 2006 FC 109, refd to. [para. 20].

Canada (Minister of Citizenship and Immigration) v. Venegas, [2006] F.T.R. Uned. 535; 2006 FC 929, refd to. [para. 20].

Froment v. Canada (Minister of Citizenship and Immigration) (2006), 299 F.T.R. 70; 2006 FC 1002, refd to. [para. 20].

Sittampalam v. Canada (Minister of Citizenship and Immigration) et al. (2006), 354 N.R. 34; 2006 FCA 326, refd to. [para. 27].

Amaya v. Canada (Minister of Public Safety and Emergency Preparedness), [2007] F.T.R. Uned. 362; 2007 FC 549, refd to. [para. 30].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 63 [para. 15 et seq.].

Counsel:

Ron Holloway and Emma Andres, for the applicant;

Helen Park, for the respondent.

Solicitors of Record:

Rod Holloway & Emma Andrews, Vancouver, British Columbia, for the applicant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on September 5, 2007, at Vancouver, British Columbia, by de Montigny, J., of the Federal Court, who delivered his decision on September 19, 2007, and filed the following amended reasons for decision on September 28, 2007.