Date: 20090319
Docket: IMM-5449-07
Citation: 2009 FC 292
BETWEEN:
KUT SONG TANG,
PUI MEI PONG,
STACY TANG
(by her litigation guardian, PUI MEI
PONG),
KA WING TANG
(by his litigation guardian, PUI MEI
PONG)
and SAMUEL TANG
(by his litigation
guardian, PUI MEI PONG)
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
PHELAN
J.
I. INTRODUCTION
[1]
This
case may well stand for the proposition that “bureaucratic efficiency” is an
oxymoron. In this case, a potential permanent resident was held to be
inadmissible on the grounds of organized criminality; a determination first
made in 1996 and communicated to the principal Applicant in 2007 after many
twists and turns between federal government offices.
II. BACKGROUND
[2]
Kut
Song Tang (Tang), the principal Applicant, is a citizen of Hong Kong. He is
married to Pui Mei Pong, a Canadian citizen, and they have three Canadian
children; all four are the other Applicants.
[3]
Tang’s
wife applied to sponsor his permanent residence application in 1993. Tang was
first interviewed by immigration officials in New York in August
1993.
[4]
A
subsequent interview in 1995 was conducted by officials in Hong Kong while the
file remained under the responsibility of the Respondent’s New York office. This
piece of government organization is a critical element in the handling of this
matter.
[5]
In
the 1995 interview, Tang confirmed a fact which he had earlier disclosed – that
he had been convicted in Hong Kong of the offence of
“claiming to be a member of a triad society”. The conviction flowed from a
guilty plea for which there was a conditional discharge, a small fine, and a
notation of “No Conviction Recorded”.
[6]
In
the 1995 interview the Immigration Officer pressed Tang on his denial of actual
membership in a triad. Tang claimed that he was not a member because he had not
gone through a traditional initiation ceremony. He admitted that he had joined
a triad while in school and that he had stayed with the organization for two
years. Tang elaborated on his allegedly limited role and other aspects of his
“non-membership”, all of which the Officer found not to be credible.
[7]
On
or about August 19, 1996, a letter was prepared by the New York office
denying the permanent residence application on the grounds of the conviction
for claiming membership in a triad and for admitting to being a member
of the Wo Shing Wo triad. The letter was never sent and Tang’s file seemed to
disappear from any consideration or action within the government.
[8]
Despite
the misgivings that the Respondent’s officials had about Tang’s involvement in a
triad society, he continued to travel unimpeded between Hong Kong and Canada until 2007
to visit his family who were resident here.
[9]
For
approximately 14 years, Tang’s file was in limbo except for a response to a
status inquiry in 1999 where the response was that no decision had been made.
[10]
As
a result of pressure put on the department by Tang’s family and others over the
course of a few years, officials advised Tang in June 2006 that a decision had
been entered in CAIPS notes, but there was no evidence that the decision had
been communicated to him. The officials also advised that, as the responsible
officer had left government service, it was necessary to reassess the
application by a new decision-maker.
[11]
The
internal communication between officials described Tang’s file as “well
travelled”. The initial problem, identified in 1998, was confusion of
responsibility between the New York and Hong Kong offices.
Most particularly, the concern was about the 1995 interview and the findings of
credibility made by an official who did not have the ultimate decision-making
authority.
[12]
When
the file finally resurfaced, officials in the Organized Crime Unit (OCS) felt
that they had a solution to the credibility/decision-maker problem. The
solution was to ostensibly ignore the 1995 interview and focus on the
conviction of claiming to be a member of a triad.
[13]
In
the memorandum from the OCS to Mr. Lilius, Consul (Immigration) in New York and the
ultimate decision-maker, the OCS made no reference to the 1995 interview but
relied on the fact of the conviction as the basis for inadmissibility. However,
in the email accompanying this memorandum, the OCS directly addressed the past
debate regarding the unsent August 1996 refusal letter and the October 1995
interview, and states that these will be ignored.
[14]
The
decision letter of November 30, 2007 from Mr. Lilius essentially repeats the
relevant portions of the OCS memorandum. In addition to denying the permanent
resident application, the decision goes on to bar Tang from entering Canada as he had
done periodically over the past 14 years.
[15]
The
section of the Immigration and Refugee Protection Act at issue reads:
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37. (1) A permanent
resident or a foreign national is inadmissible on grounds of organized
criminality for
(a) being a member of an organization
that is believed on reasonable grounds to be or to have been engaged in
activity that is part of a pattern of criminal activity planned and organized
by a number of persons acting in concert in furtherance of the commission
of an offence punishable under an Act of Parliament by way of indictment, or
in furtherance of the commission of an offence outside Canada that, if
committed in Canada, would constitute such an offence, or engaging in
activity that is part of such a pattern; or
(b) engaging, in the context of
transnational crime, in activities such as people smuggling, trafficking in
persons or money laundering.
(2) The following
provisions govern subsection (1):
(a) subsection (1) does not apply in the
case of a permanent resident or a foreign national who satisfies the Minister
that their presence in Canada would not be detrimental to the national interest; and
(b) paragraph (1)(a) does not lead
to a determination of inadmissibility by reason only of the fact that the
permanent resident or foreign national entered Canada with the assistance of
a person who is involved in organized criminal activity.
|
37. (1)
Emportent interdiction de territoire pour criminalité organisée les faits
suivants :
a) être
membre d’une organisation dont il y a des motifs raisonnables de croire
qu’elle se livre ou s’est livrée à des activités faisant partie d’un plan
d’activités criminelles organisées par plusieurs personnes agissant de
concert en vue de la perpétration d’une infraction à une loi fédérale
punissable par mise en accusation ou de la perpétration, hors du Canada,
d’une infraction qui, commise au Canada, constituerait une telle infraction,
ou se livrer à des activités faisant partie d’un tel plan;
b) se
livrer, dans le cadre de la criminalité transnationale, à des activités
telles le passage de clandestins, le trafic de personnes ou le recyclage des
produits de la criminalité.
(2) Les dispositions suivantes régissent l’application du
paragraphe (1) :
a) les
faits visés n’emportent pas interdiction de territoire pour le résident
permanent ou l’étranger qui convainc le ministre que sa présence au Canada ne
serait nullement préjudiciable à l’intérêt national;
b) les
faits visés à l’alinéa (1)a) n’emportent pas interdiction de
territoire pour la seule raison que le résident permanent ou l’étranger est
entré au Canada en ayant recours à une personne qui se livre aux activités
qui y sont visées.
[Emphasis
added]
|
III. ANALYSIS
[16]
There
are two issues in this judicial review:
1. Is
the decision on admissibility legally sustainable?
2. Was
there a breach of natural justice?
To some extent, the issues are intertwined
but require separate analysis.
A. Standard
of Review
[17]
The
determination of membership itself is a fact-driven exercise. As such, it is
subject to review on a standard of reasonableness (Castelly v. Canada (Minister of
Citizenship and Immigration), 2008 FC 788). It is noteworthy that the
issue is membership in an organization not whether there is belief based on
reasonable grounds that the organization engaged in criminality. Criminal
behaviour appears to be assumed in respect of triads.
[18]
The
issue of procedural fairness has been determined to be outside the realm of standard
of review analysis as per Dunsmuir v. New Brunswick, 2008 SCC 9
at paragraph 79, and is therefore subject to a standard of correctness.
B. Inadmissibility
[19]
As
a general proposition, a conviction may form the basis for a conclusion of
inadmissibility but does not necessarily always do so. A conviction may form
that basis where there is reason to believe that the allegations on which the
conviction is based are a true statement of facts. However, to rely upon a
conviction does require an inquiry into the meaning of the conviction and may
engage an analysis of the circumstances surrounding it. For example, a plea
bargain may raise different considerations than a finding of guilt after a
trial.
[20]
The
application of s. 37 is coloured by s. 33 which layers a further reasonableness
standard:
|
33.
The facts that constitute inadmissibility under sections 34 to 37 include
facts arising from omissions and, unless otherwise provided, include facts
for which there are reasonable grounds to believe that they have occurred,
are occurring or may occur.
|
33. Les faits
— actes ou omissions — mentionnés aux articles 34 à 37 sont, sauf disposition
contraire, appréciés sur la base de motifs raisonnables de croire qu’ils sont
survenus, surviennent ou peuvent survenir.
|
[21]
In
Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2
F.C. 297 (F.C.A.), the issue was the reasonableness of the belief of membership
in a criminal organization. The Court of Appeal held that the term “reasonable
grounds” connoted “a bona fide belief in a serious possibility based on
credible evidence”.
[22]
In
the present case, Tang’s conviction for claiming to be a member of a triad was
advanced as reasonable grounds for believing that he was in fact a member of a
triad. In other cases, that might well be sufficient but not in this case.
[23]
Firstly,
there was no consideration of the circumstances surrounding the conviction
which call into consideration whether the claim was true. Absent the 1995
interview admissions, the conviction arose from a guilty plea and resulted in a
minimal penalty.
[24]
Secondly,
if the Respondent had “a bona fide belief” that Tang was or had been a
member of a triad, the Respondent had that belief since 1997 and yet continued
to permit Tang to enter Canada on a regular basis. The Respondent’s
actions and acquiescence belie its stated belief.
[25]
Thirdly,
there is a certain element of disingenuousness in the manner in which officials
relied on the conviction as if the 1995 admissions were never made. An inquiry
into the real reasons for the belief that Tang was a member of a triad shows
that the 1995 interview was critical. Tang’s admissions as to involvement, all
of which are inculpatory, colour the rationale for the ultimate conclusion. Yet
the Respondent makes no reference to the admissions and uses a more convenient
pretext of a conviction to ground the admissibility decision.
[26]
In
view of the inconsistency between what the Respondent has said, done, and
relied upon for its decision, the decision is not reasonable.
C. Procedural
Fairness
[27]
The
concept of procedural fairness has been said to be “eminently variable and its
content is to be decided in the specific context of each case” (Knight
v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653 at
682).
[28]
It
was unfair for the Respondent to allow the 1995 interview to colour its
decision without addressing the unease which its own internal records show
about both the procedure and the substance of the interview. There were
concerns about inferences drawn and credibility conclusions reached. However,
Tang was never given an opportunity to confront these issues in spite of the
tentative acceptance of the ultimate conclusion by the Officer.
[29]
The
fact that Tang has had 24 years with no apparent connection to a triad and the
absence of any police or security report against him (other than the recorded
conviction) may be more relevant to the exercise of the Minister’s discretion
to authorize admissibility than to the issue of fairness. They may also be
relevant to a “bona fide belief” in membership. Those issues are for
another day.
[30]
In
these unusual circumstances, it was unfair to make this decision without
according Tang an interview with the deciding officer and an opportunity to know
the real reasons for the inadmissibility decision.
[31]
The
Applicant alleges unfairness due to delay and failure to advise that there was
an exemption procedure.
[32]
While
the delay is shocking and must be an embarrassment, the Applicants share some
responsibility. It is not appropriate to enjoy the benefits of the easy access
Tang had to Canada, to let the
application languish without making demands for relief or seeking mandamus and
to now cry “foul”. Nothing prevented Tang from taking steps to enforce his
right to a decision within a reasonable time.
[33]
Further,
there is no general duty imposed on the officials to advise the Applicants of
the exemption process. This is particularly the case where they were
represented by counsel albeit different from counsel who has had carriage of
this litigation.
IV. CONCLUSION
[34]
For
these reasons, this judicial review will be granted, the decision quashed, and
the matter remitted back to the Respondent for a proper determination. To avoid
a repeat of delays, the Court will stay seized of the matter. A new decision is
to be made on proper grounds within three (3) months, unless the Respondent can
show that such a deadline is not sustainable. The parties may seek such orders
and directions as may facilitate this process.
[35]
The
Applicants have asked for costs. Absent the Applicants’ own inaction, costs may
have been in order. However, for the reasons above, the Applicants’ own
failures did nothing to expedite the matter and therefore no costs will be
awarded.
[36]
These
reasons are being released in advance of a final order to permit the parties to
make submissions as to a question of certification within 14 days. It is the
Court’s tentative view that there are no such questions.
“Michael
L. Phelan”
Ottawa, Ontario
March
19, 2009
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