Friday, September 30, 2011

Perez Villegas—failure to conduct proper analysis of membership or terrorism

Perez Villegas v. Canada (Citizenship and Immigration), 2011 FC 105 (CanLII)

Judge: Justice O’Keefe

Date heard: September 21, 2010

Date decided: February 2, 2011

Counsel for Perez Villegas: Lorne Waldman

Counsel for Minister: Angela Marinos

Place of Hearing: Toronto, Ontario

Decision Under Review: refusal of permanent residence on the basis of inadmissibility (s. 34(1)(f))

The Applicant was a citizen of Mexico who in the mid-1990s had raised money and supplied for the indigenous people of Chiapas; he gave these material to Ejercito Zapatista de Liberacion Nacional (EZLN) for distribution, since the Mexican Army has cut off access to the region (para. 4). The Applicant was threatened and sought asylum in Canada, which was granted in 1998 (para. 5). He stated on both the Personal Information Form for his refugee case, and on the application form for permanent residence (PR), that he was a member of EZLN (para. 6). His PR  application was approved in principle in December 1998, however, the ensuing background check took ten years and he was eventually called in for an interview in June 2009 (para. 7).

The officer found that EZLN was a group about whom there were reasonable grounds to believe that they had engaged in terrorist activities, and that while the Applicant was not a formal member he was a member, although the officer did acknowledge “that the applicant worked with the EZLN because it was the only network which could deliver supplies to the poor in Chiapas” (paras. 9-20).

Justice O’Keefe found that the officer had erred in that his reasons “did not explain how his findings amount to membership based on the jurisprudence or the CIC enforcement manual definition of membership”, but rather relied on the Applicant’s previous statements that he was a member (para. 48). The officer made factual findings about the Applicant’s relationship with EZLN but provided no analysis as to whether or how they contributed to a finding of membership (paras. 49-50). Noting that “any finding of inadmissibility ‘should be carried out with prudence, and established with the utmost clarity’”, Justice O’Keefe found that the officer’s finding was unreasonable (para. 51, citing Daud v. Canada (Minister of Citizenship and Immigration), 2008 FC 701).

Similarly, on the issue of whether EZLN was a terrorist organization, Justice O’Keefe found that the officer had erred in simply stating the definition of terrorism from Suresh v. Canada (Minister of Citizenship & Immigration), 2002 SCC 1 and then asserting that EZLN’s activities fit that definition (para. 56).

There is a two-step analysis: “First, the decision-maker must show the evidentiary foundation to support a finding that an organization was engaged in acts of terrorism” (para. 54, citing Daud; Jalil v. Canada (Minister of Citizenship & Immigration), 2006 FC 246; Fuentes v. Canada (Minister of Citizenship and Immigration),2003 FCT 379; and Alemu v. Canada (Minister of Citizenship and Immigration), 2004 FC 997)

In the second step, “…the decision maker must provide analysis of the acts the organization has committed and explain how they meet the definition of terrorism. This requires showing the link between the acts and the definition of terrorism provided” (para. 55, citing Naeem v. Canada (Minister of Citizenship and Immigration), 2008 FC 1735, and Fuentes).

Justice O’Keefe found that this analysis was not done:

Even if this Court reviews the officer’s assessment of the EZLN from the previous section, which was not part of his terrorism analysis, the officer does not indicate which evidence he is relying on to conclude that terrorist acts occurred. Moreover, there is no discussion at any point about how any acts of the EZLN were “. . . intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict . . .” …. In fact, the officer mentions civilians only twice in the assessment of the EZLN, both times to note that civilians were killed. He does not analyze how these civilians were killed, by whom, or whether the EZLN condoned or encouraged the killing. The officer mentions one report that said the EZLN had killed non-combatants but, again, the officer did not assess whether they were targeted or intentionally killed. As in Fuentes above, while the officer described some violent acts in the section entitled assessment of the EZLN, he does not show how these acts fit within the Suresh above, definition of terrorism (para. 57).


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