Ottawa, Ontario, April 12, 2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The applicant is a young male citizen of Mexico who married a Canadian woman. She submitted an application to sponsor Mr. Ruz and the file was eventually transferred to the Canadian Embassy in Mexico. The Embassy official found Mr. Ruz to be inadmissible on the grounds of organized criminality (Immigration and Refugee Protection Act, s. 37(1)(a)). This is the judicial review of that decision.
I. BACKGROUND
[2] The Embassy based its conclusion on the PIF of the Applicant’s failed refugee claim where Mr. Ruz stated that he was a member of two gangs, one in Merida and one in Mexico City. The Applicant now says that his PIF was a lie, that his immigration consultant had advised him to lie on his refugee claim.
[3] The Embassy official noted particularly that the Applicant did not amend his PIF nor did he contradict the statements made until after his interview at the Embassy when he realized that the official had reasonable grounds to believe that the Applicant had been involved in organized crime.
[4] The official had also obtained evidence from the Applicant’s school that showed his marks as being better than those one would expect from a person who was also involved in gang activities.
[5] The Applicant’s PIF stated that he graduated in 1996 but his diploma stated that he graduated in 1997. This evidence was said to suggest that his PIF contained errors. More importantly, it placed him in Merida when he said that he was in Mexico City with another gang.
II. ANALYSIS
[6] The Applicant challenges the Immigration and Refugee Board’s decision because it does not contain an assessment of the conflicting evidence and because it contains no explanation of the reason for preferring one part of the evidence over another.
[7] Section 37(1)(a) sets the bar for a determination of organized criminality as “believed on reasonable grounds to be or to have been engaged …”. In Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, the Court of Appeal adopted the Trial Judge’s definition of this phrase as “a bona fide belief in a serious possibility based on credible evidence”.
[8] In the decision under review, the official was required to weigh conflicting evidence which he did. He also made a credibility finding which usually is subject to a standard of review of patent unreasonableness. This is particularly an appropriate standard where it is clear that the official’s conclusion on credibility was influenced by the interview and by the surrounding circumstances.
[9] The official did provide a rationale for accepting one set of evidence over another in his finding that the Applicant changed his story when he became aware that the official had the requisite” reasonable grounds”. The timing of the change in his story was critical to the credibility finding.
[10] The decision is not patently unreasonable given the evidence and the legal standard governing the official’s decision making power. There were sufficient reasons given for the official’s decision.
[11] Therefore, this judicial review will be dismissed. There is no question for certification.
JUDGMENT
IT IS ORDERED THAT this application for judicial review will be dismissed.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2140-06
STYLE OF CAUSE: JUAN FRANCISCO CORTES RUZ
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 21, 2007
APPEARANCES:
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Mr. Paul VanderVennen
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Mr. Bernard Assan
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SOLICITORS OF RECORD:
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VANDERVENNEN LEHRER Barristers & Solicitors Toronto, Ontario
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MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario |