Date: 20100128
Docket: IMM-2024-09
Citation: 2010 FC 93
Ottawa, Ontario, January 28, 2010
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
NGHIA TRONG NGUYEN-TRAN
(Also known as: Tran Trong Nghi NGUYEN)
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Background
[1]
The
Applicant, Mr. Nghia Trong Nguyen-Tran, was born in Vietnam. He came to Canada
in 1993 as a dependent child and has, since his arrival, gathered an extensive
criminal record. He was convicted, in 2002, of two counts of trafficking in
narcotics. This triggered the Immigration Division (ID) of the Immigration and
Refugee Board to issue a Removal Order on the grounds of “serious criminality”,
as described in s. 36(1)(a) of the Immigration and Refugee Protection Act,
S.C. 2001, c.27 (IRPA). The Applicant appealed his removal to a panel of
the Immigration Appeal Division of the Immigration and Refugee Board (the IAD).
The basis of his appeal was s. 67(1)(c) of IRPA which provides that the
IAD may allow an appeal of a Removal Order where, taking into account the best
interests of a child directly affected by his removal from Canada, sufficient
humanitarian and compassionate considerations warrant special relief in light
of all the circumstances of his case.
[2]
In its
decision, dated April 7, 2009, the IAD determined that: (a) the Removal Order
was valid in law (a matter not disputed by the Applicant); and (b) the
Applicant had not demonstrated sufficient humanitarian and compassionate
considerations to warrant the granting of discretionary relief. The IAD
dismissed the appeal. The Applicant seeks judicial review of the decision,
alleging that the IAD made two errors:
1.
The IAD
erred by importing an aggravating factor (membership in a criminal gang) from
s. 121 of IRPA into its analysis; and
2.
The IAD
erred in relying on a determination that the Applicant’s presence in Canada posed a secondary danger or
risk to third parties (primarily, his mother and step-sister).
[3]
For the
reasons that follow, I have concluded that there are no grounds to intervene in
the IAD decision; this application will be dismissed.
II. Nature and scope of the
IAD’s discretion
[4]
When
reviewing the decision of the IAD in this matter, it is important to understand
the nature and scope of the IAD’s discretion in granting relief under s.
67(1)(c).
[5]
This
specific matter began with the Applicant’s conviction for trafficking cocaine
that attracts a maximum term of life imprisonment. This offence falls within
the ambit of s. 36 of IRPA, where serious criminality applies where the
conviction is for an offence punishable by a maximum term of imprisonment of at
least ten years. There is no dispute that the Applicant became inadmissible to Canada pursuant to s. 36. The ID
issued a Removal Order against the Applicant. The Applicant appealed the
Removal Order to the IAD pursuant to s. 63(3) of IRPA:
|
63. (3) A
permanent resident or a protected person may appeal to the Immigration Appeal
Division against a decision at an examination or admissibility hearing to
make a removal order against them.
|
63.
(3) Le résident permanent ou la personne protégée peut interjeter appel de la
mesure de renvoi prise au contrôle ou à l’enquête.
|
[6]
In this
case, the Applicant did not question the validity of the Removal Order; rather,
he asked the IAD to exercise its discretionary authority under s. 67(1)(c):
|
67. (1) To
allow an appeal, the Immigration Appeal Division must be satisfied that, at
the time that the appeal is disposed of . . .
(c) other than
in the case of an appeal by the Minister, taking into account the best
interests of a child directly affected by the decision, sufficient
humanitarian and compassionate considerations warrant special relief in light
of all the circumstances of the case.
|
67.
(1) Il est fait droit à l’appel sur preuve qu’au moment où il en est disposé:
. .
.
c)
sauf dans le cas de l’appel du ministre, il y a — compte tenu de l’intérêt
supérieur de l’enfant directement touché — des motifs d’ordre humanitaire
justifiant, vu les autres
circonstances
de l’affaire, la prise de mesures spéciales.
|
[7]
The Supreme Court’s
guidance in the recent case of Canada (Minister of Citizenship and
Immigration) v. Khosa,
2009 SCC 12, [2009] 1 S.C.R., 339 (Khosa), is particularly helpful. That
case dealt with a very similar set of facts: a young man had been determined to
be inadmissible to Canada for serious criminality, and the IAD had dismissed
the appeal brought pursuant to s. 67(1)(c). The task of the IAD was described by
Justice Binnie in Khosa, above, at paragraph 57 as follows:
In recognition that hardship may come
from removal, Parliament has provided in s. 67(1)(c) a power to grant
exceptional relief. The nature of the question posed by s. 67(1)(c) requires
the IAD to be “satisfied that, at the time that the appeal is disposed of ...
sufficient humanitarian and compassionate considerations warrant special
relief”. Not only is it left to the IAD to determine what constitute
“humanitarian and compassionate considerations”, but the “sufficiency” of such
considerations in a particular case as well. Section 67(1)(c) calls for a fact
dependent and policy driven assessment by the IAD itself. [Emphasis added.]
[8]
As determined by Khosa,
the standard of review of the IAD’s decision is reasonableness. Justice Binnie
explained this standard as follows (Khosa, above, at para. 59):
Reasonableness
is a single standard that takes its colour from the context. One of the
objectives of Dunsmuir was to liberate judicial review courts from what
came to be seen as undue complexity and formalism. Where the reasonableness
standard applies, it requires deference. Reviewing courts cannot substitute
their own appreciation of the appropriate solution, but must rather determine
if the outcome falls within “a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir, at para. 47).
There might be more than one reasonable outcome. However, as long as the
process and the outcome fit comfortably with the principles of justification,
transparency and intelligibility, it is not open to a reviewing court to
substitute its own view of a preferable outcome.
[9]
Within its
broad mandate, it is well-settled that the IAD, when considering whether
special relief is warranted, should be guided by the factors adopted in Ribic
v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4.
These factors (the Ribic factors) were endorsed by the Supreme Court in Chieu
v. Canada (Minister of Citizenship and
Immigration),
2002 SCC 3, [2002] 1 S.C.R. 84, at paragraphs 40, 41 and 90, and, more
recently, in Khosa, above, at paragraphs 65 and 66. The Ribic
factors are:
1.
the
seriousness of the offence leading to the removal order;
2.
the
possibility of rehabilitation;
3.
the length
of time spent, and the degree to which the individual facing removal is
established, in Canada;
4.
the family
and community support available to the individual facing removal;
5.
the family
in Canada and the dislocation to the family
that removal would cause; and
6.
the degree
of hardship that would be caused to the individual facing removal to his
country of nationality.
[10]
These
factors are not exhaustive and the weight to be attributed to them will vary
(see Khosa, above, at para. 65). Nor should the Ribic factors be
applied in a formulaic manner. Obviously, the facts of each case will lead to
different considerations and different outcomes.
III. The decision under review
[11]
The IAD,
in a lengthy and detailed decision, examined the evidence before it and
exercised its discretion in accordance with the analysis of the Ribic
factors. As I understand it, the Applicant does not assert that the IAD ignored
evidence or made erroneous findings of fact. Of particular interest in this
application were the following factual findings that, in the view of the IAD,
weighed against granting the discretionary relief:
·
The
Applicant had two convictions as a youth offender and eight further offences as
an adult;
·
His most
serious offence was for drug trafficking, a crime considered to be very serious
by both Parliament and the United Nations;
·
The
Applicant has had problems complying with the terms and conditions of his
sentencing and bail;
·
The
Applicant remains a member, or at the very least is associated with members, of
a criminal organization operating in Calgary
and involved in a deadly feud with another criminal organization;
·
The
presence of the Applicant around his step-sister has endangered her life. The
Applicant’s step-sister was removed from his home by the Alberta Child and
Family Services (under court order) to protect her from being collaterally hurt
due to the Applicant’s gang relations; and
·
The
on-going gang violence (including two attempts on the Applicant’s life) creates
a real danger to the Applicant’s step-sister and to other innocent people.
[12]
The IAD
also considered and weighed the evidence that operated in the Applicant’s
favour. His relationship with his disabled mother and step-sister, his
expressions of remorse, his guilty pleas, the potential difficulty in
re-establishing himself in Vietnam after 13 years in Canada, and other facts were all
taken into account.
[13]
The IAD,
in conducting its analysis, provided careful explanations of why it preferred
the evidence of certain witnesses over others, of why it found the testimony of
the Applicant and certain witnesses to be lacking in credibility, and of why
certain factors were given more weight on the facts of this case.
[14]
Of
particular relevance to this judicial review, the IAD considered the
Applicant’s gang association to be an “aggravating factor” in the seriousness
of his crimes. Stated in different words, the IAD concluded that a crime
committed in the context of gang violence or membership should be weighed more
heavily against the Applicant, compared to a crime that was not. The IAD
explained this consideration as follows:
As part of the evaluation of the effect
of the appellant’s ongoing association with the FK, I note that another section
of the [IRPA], section 121, specifically states that when considering
penalties under the [IRPA] the fact that an offence had been committed
in association with a criminal organization is an aggravating factor. I
acknowledge that section 121 refers to aggravating factors for offences of
human smuggling and trafficking. Therefore this is not a required consideration
for me. But the fact that the [IRPA] notes that association with a
criminal organization is an aggravating factor when committing a crime is
indicative of the intention of Parliament when considering such issues. I also
take note of the comments of the Supreme Court of Canada in the case of Medovarski
that “the words of this statute, like any other, must be interpreted as having
regard to the object, text and context of the provisions, considered together”.
Therefore, having regard to the [IRPA] as a whole, I import the
objective of section 121 to a consideration of the seriousness of the
appellant’s criminal conviction. The fact that he was convicted of a crime of
trafficking, in the presence of an identified member of the FK, and is
admittedly having an ongoing association with members of the FK is an
aggravating factor; both when considering the seriousness of the appellant’s
criminal acts and his efforts at rehabilitation. [Emphasis added].
[15]
In
weighing the Ribic factors, the IAD referred to Medovarski v. Canada (Minister of Citizenship and
Immigration), 2005 SCC
51, [2005] 2 S.C.R. 539 at paragraph 10, where the Supreme Court prioritized
security interests. On this basis, the IAD concluded that “[T]he ‘non-security’
related Ribic factors must . . . be disproportionate to outweigh
evidence which indicates an
ongoing
security risk”. In this case, the IAD determined that the Applicant’s ongoing
association with members of a criminal gang was a serious and important factor:
It
aggravates the seriousness of the appellant’s criminal convictions, it remains
a significant barrier to the appellant’s rehabilitation despite the steps and
efforts he has made in that regard, and it presents an ongoing danger to
innocent people through their association with the appellant and by his ongoing
presence in Canada.
[16]
The IAD
balanced the Ribic factors and determined that the factors in favour of
the Applicant were “not sufficiently strong to outweigh the security interests
which require the appellant’s removal from Canada”. The IAD also concluded that there were
insufficient humanitarian and compassionate considerations, including the best
interests of the child, to warrant relief. The IAD declined to exercise its
discretion to grant the special relief under s. 67(1)(c) of IRPA.
IV. Analysis
[17]
The
Applicant objects to two different considerations weighed by the IAD. I will
deal with each.
A. Did the IAD err by “importing” s. 121 of IRPA
into its analysis?
[18]
As set out
in the citation from the decision above, the IAD decided to “import the
objective of section 121 to a consideration of the seriousness of the
appellant’s criminal conviction”. The Applicant submits that the IAD erred by
incorporating “aggravating factor”, as described in s. 121 of IRPA, into
its s. 67(1)(c) analysis. The Applicant argues that there is no statutory or
common law authority for the IAD to import factors for unrelated offences
(human trafficking and smuggling) into its analysis.
[19]
Section
121 of IRPA is titled “Aggravating factors”. Of particular relevance to
this matter is s. 121(b) which states as follows:
|
121. (1) The
court, in determining the penalty to be imposed under subsection 117(2) or
(3) or section 120, shall take into account whether:
. . .
(b) the
commission of the offence was for the benefit of, at the direction of or in
association with a criminal organization
|
121.
(1) Le tribunal tient compte, dans l’infliction de la peine visée aux
paragraphes 117(2) et (3) et à l’article 120, des facteurs suivants :
. .
.
b)
l’infraction a été commise au profit ou sous la direction d’une organisation
criminelle ou en association avec elle;
|
[20]
There is
obviously no direct connection between s. 121 and the task before the IAD under
s. 67(1)(c). The Applicant correctly points out that s. 121 establishes
aggravating factors for the court (as opposed to the IAD) to assess in
the sentencing of human trafficking and smuggling offences under s. 117 of IRPA
(see R. v. Ng, 2008 BCCA 535, 263 B.C.A.C. 300 at paras. 13-17). There
is no mention in s. 121 of the IAD, or of humanitarian and compassionate
considerations for special relief of valid removal orders. Thus, had the IAD
blindly or automatically imported the provisions of s. 121 into its s. 67(1)(c)
analysis, it would have erred in law.
[21]
While I
acknowledge that the IAD’s reference to s. 121 is confusing and probably
unnecessary, I do not agree that there is any reviewable error.
[22]
As seen in
the passage above, the IAD did not outright import s. 121 in its entirety.
Indeed, the IAD noted it had no jurisdiction to do so. Rather, what was
imported was the objective of s. 121 to place more emphasis on the seriousness
of a crime when committed in the context of involvement with a criminal organization.
[23]
The IAD
supported its analysis of the seriousness of organized criminality in the
context of criminal convictions by reference only to s. 121 of IRPA. I
observe that the IAD could have referred to other provisions of IRPA to
support its interpretation of the intent of Parliament. IRPA contains
many explicit provisions where organized criminality is considered as a
distinct ground for action – over and above criminality itself (see, for
example, ss. 37, 64, 123). From this, one can reasonably conclude that
Parliament intended organized criminality to be a separate and potentially more
serious form of crime.
[24]
Thus,
while the IAD’s stated justification for treating the Applicant’s gang
association as an “aggravating factor” may be somewhat confusing, its doing so
was not unreasonable. It was reasonable for the IAD to take into account the
Applicant’s previous and continuing gang associations. The IAD was within its
broad discretionary mandate to consider that gang association (even if not
actual membership) heightened or aggravated the seriousness of the Applicant’s
criminal convictions.
B. Did the IAD err
by considering the “secondary” danger posed by the Applicant’s presence in Canada?
[25]
The IAD
found that the Applicant himself was not a danger to the public. However, the
IAD took into consideration that, because of his association with criminal
gangs and events that had taken place, the Applicant could be targeted by
criminals. This could create a secondary danger to the public. In addition,
the IAD considered the possible adverse impacts and danger to the Applicant’s
step-sister. In the IAD’s opinion, these factors weighed against the Applicant.
[26]
In the
Applicant’s submission, the Ribic factors require that the IAD limit
itself to the danger posed by the Applicant himself and not to the dangers third
parties caused by the Applicant’s presence.. The question of danger or risk is
one that the Applicant himself causes to the public, or the risk of him
re-offending (see Sherlock Albertson Hardware v. Canada (Minister of Citizenship and
Immigration),
2009 FC 338, 79 Imm. L.R. (3d) 203, at para. 26). This test of public danger is
consistent with the test for a “danger opinion” under s. 115 of the IRPA (see
Cruz v. Canada (Minister of Citizenship and
Immigration),
2008 FC 1341, 78 Imm. L.R. (3d) 68).
[27]
I do not
agree with the Applicant.
[28]
The IAD’s
findings of secondary danger and risk relate to factors wholly within the
discretion of the IAD. These are the best interests of the child (see s.
67(1)(c)), and the effect on family members in Canada if the Applicant is removed (see Ribic
factor #5). Excerpts of the IAD decision reflect how the IAD applied the
evidence to the factors.
Two attempts have been made on the
appellant’s life, one in the presence of Dawn [his girlfriend]. All of this
activity is much reported in the media in Calgary. In addition, because of the
secondary danger to his sister due to the risk that an attempt on the
appellant’s life will be made while he is at home, his 9 year old sister has
been apprehended from her mother’s care pursuant to a court order. These
are unusual circumstances for all but the rarest of people;.
[…] [U]nknown assailants attempted to
shoot the appellant as he was leaving Ms. Ngo’s family home. The appellant’s
presence at the home put the witness and her family at risk of physical injury.
Whether or not Ms. Ngo or the appellant are involved in any gang activities
becomes irrelevant when considering this factor. The fact remains that the
people who threaten the appellant were prepared to attack him while he was at
Dawn’s family home, thereby secondarily threatening Ms. Ngo and her family.
Therefore, despite the evidence demonstrating a significant relationship
between the appellant and Dawn Ngo, I conclude that she would not be
overwhelmingly adversely affected by the removal of the appellant from Canada. That is not a factor in his
favour;
[…] [T]he evidence regarding the best
interests of this child [his step-sister] is not completely in the appellant’s
favour. Due to his physical presence in the home, and the risk that someone
will attempt to take the appellant’s life while he is at home, this child has
been apprehended from the care of her mother and brother. According to the
information before me she has not been living at home with her mother since the
appellant returned home in November 2008;
The benefit to the mother and sister in
having the appellant remain in Canada must be weighed against the danger to the
public, the
seriousness of his crimes and the degree of his rehabilitation. Although the
appellant, himself, is not a danger to the public as there is no evidence that
he has continued his serious criminal activities which are dangerous to the
public, his mere presence in Canada creates a secondary danger. There is
risk that another attempt will be made on his life, while in public, creating a
risk to other innocent people [Emphasis added.]
[29]
Thus, the
determination of secondary danger forms the context – a piece of the
circumstantial puzzle – that is directly relevant to whether the IAD’s
discretion should be exercised. There is no reviewable error.
V. Conclusion
[30]
As
described by Justice Binnie in Khosa, above, s. 67(1)(c) calls for a
fact dependent and policy driven assessment by the IAD itself. In this case,
the IAD exercised its mandate to determine what constituted “humanitarian and
compassionate considerations”, and the “sufficiency” of such considerations. In
particular, the IAD determined that two relevant factors were: (a) the
increased seriousness of his criminal conviction due to his gang associations;
and (b) secondary danger to the public and his family members if the Applicant
remains in Canada. On the facts of this case
(acknowledged by the IAD to be “unusual circumstances for all but the rarest of
cases”), both of these factors are relevant.
[31]
There is
no reason for the Court to intervene in this case. The decision falls within
the range of outcome falls within “a range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47).
[32]
After some
discussion, both parties acknowledged that there is likely no question of
general importance to be certified. I agree that this application does not
raise a question that warrants certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that
1.
the
application for judicial review is dismissed; and
2.
no
question of general importance is certified.
“Judith
A. Snider”
Email this Content