Docket: IMM-6802-10
Citation: 2011 FC 921
Ottawa, Ontario, July 22, 2011
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
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ARTEM MKRTCHYTAN
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Respondent (the Minister) submits that the Applicant, a citizen of Armenia who would like to claim
refugee status in Canada, is inadmissible to Canada on grounds of organized criminality. The
problem for the Applicant is that he came to Canada with a criminal record acquired in the United States, as a result of a crime that
may have been a part of organized criminal activities.
[2]
In a
decision dated October 26, 2010, a panel of the Immigration Division of the
Immigration and Refugee Board [the ID] found that there were reasonable grounds
to establish that the Applicant “is described in both paragraph 37(1)(a) and
paragraph 37(1)(b) of the [Immigration and Refugee Protection Act, S.C.
2001, c.27] Act” and was, therefore, inadmissible to Canada. The
Applicant seeks to overturn the ID’s decision, raising the following issues:
1.
Did the ID
err by failing to give adequate notice to the Applicant that it would consider
the admissibility of the Applicant pursuant to: (a) that portion of s. 37(1)(a)
of the Immigration and Refugee Protection Act, S.C. 2001, c.27 [the Act]
that provides that a foreign national is inadmissible on grounds of organized
criminality for engaging in activity that is part of a pattern of criminal
activity commonly described as organized criminality (rather than being a
member of an organization that engages in such activity); or (b) s. 37(1)(b)
that provides for inadmissibility for engaging in transnational crime; and
2.
Was the
ID’s decision that the Applicant was inadmissible unreasonable?
[3]
For the
reasons that follow, I conclude that, while the Applicant had adequate notice
of the alleged grounds of inadmissibility, the decision should be quashed on the
basis that it is unreasonable.
Issue #1: Adequacy of Notice
[4]
The issue
of adequacy of notice raises a question that is reviewable on a standard of
correctness.
[5]
I begin
with the report [the s. 44 Report] under s. 44(1) of the Act. In the s. 44
Report, an immigration officer stated that he was of the opinion that the
Applicant was inadmissible to Canada pursuant to s. 37(1)(a) and s. 37(1)(b) of
the Act. Those provisions of the Act are as follows:
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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.
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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
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[6]
In the
context of this application it is important to note the two aspects of s.
37(1)(a). A foreign national may be found to be inadmissible for being a member
of an organization that is engaged in organized crime or for engaging in
activities related to organized crime. On the bifurcation of s. 37(1)(a),
Justice Evans in Thanaratnam v. Canada (Minister of Citizenship and
Immigration),
2005 FCA 122, [2006] 1 FCR 474, at paragraph 30, stated as follows:
The
structure of paragraph 37(1)(a) makes it clear that "membership" of a
gang and engaging in gang-related activities are discrete, but overlapping
grounds on which a person may be inadmissible for "organized
criminality". The "engaging in gang-related activities" ground
of "organized criminality" was added by the IRPA and did not
appear in its predecessor, paragraph 19(1)(c.2) of the Immigration Act,
R.S.C. 1985, c. I-2. In order to give meaning to the amendment to the previous
provision made by the IRPA, Parliament should be taken to have intended
it to extend to types of involvement with gangs that are not included (or not
clearly included) within "membership".
[7]
The s. 44
Report refers to all of s. 37(1)(a) and s. 37(1)(b). The narrative portion of
the s. 44 Report appears to focus on the Applicant as someone who “has been the
member of a criminal organizational group”. There is no reference in the
narrative portion of the s. 44 Report to “engaging in gang-related activities”
or to transnational crimes. However, the s. 44 Report is clear that all three
grounds were “on the table” for consideration by the ID.
[8]
As
provided for in s. 44(2) of the Act, the Minister referred the s. 44 Report to
the ID for an admissibility hearing to determine if the Applicant “is a person
described in paragraph(s) 37(1)(a)(b)”. In other words, the referral did not
limit the grounds.
[9]
A hearing
was held before the ID. At the beginning of the hearing, the ID referred to the
allegations of the s. 44 Report as being that the Applicant was inadmissible
(a) pursuant to s. 37(1)(a) for being a member of an organization engaged in
organized criminality; and (b) for being inadmissible under s. 37(1)(b) of the
Act. At this point, the ID did not explicitly refer to any allegation of
“engaging in gang-related activities”. Throughout the entirety of the
transcript, there is no further reference to the alleged grounds for
inadmissibility.
[10]
At the
conclusion of the hearing, the ID gave counsel time to submit written
submissions. The ID did not specify the issues to be addressed. In final
written submissions of the Minister, reference is made to all three grounds –
the two set out in s. 37(1)(a) and that of s. 37(1)(b). In conclusion, “the
Minister submits that he has not met the burden of establishing that Mr.
Mkrtchyan is inadmissible pursuant to 37(1)(a) and 37(1)(b)”.
[11]
The
Applicant relies on the decision in Butt v. Canada (Minister of Citizenship and
Immigration)
(1998), 145 F.T.R. 122, [1998] FCJ No 325 (QL) (FCTD) to support its allegation
that there was a denial of natural justice. In that case, the decision of the
Convention Refugee Determination Division of the Immigration and Refugee Board
was overturned because the Board failed to indicate that credibility was an
issue, resulting in a denial of natural justice. However, in Butt,
unlike the case before me, the Board had not, when asked by counsel, explicitly
listed credibility as an issue. In the case before me in this application, the
ID never stated that any of the grounds were not under consideration; in fact,
the only explicit statements made were to the opposite at the commencement of
the hearing. Moreover, the Minister’s written submissions made explicit
reference to all three grounds.
[12]
In my
view, while the ID could have been more explicit with respect to the fact that
it would consider all three grounds of inadmissibility, the record discloses
that there was adequate notice to the Applicant that it would do so. There was
no denial of natural justice.
Issue #2: Reasonableness of
the Decision
[13]
The second
issue raised by this application is whether the decision was reasonable. The
parties accept that the standard of review of the decision is that of
reasonableness. As taught by the Supreme Court of Canada, on a standard of
reasonableness, the Court
should not intervene where the decision 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).
[14]
The first point to
make is that the ID is under no obligation to defer to the opinion of the
Minister (see Alwan v. Canada (Minister of Citizenship and
Immigration), 2004 FC
807, [2004] FCJ No 982 (QL) at para 7). Parliament has vested the ID with the
sole and exclusive jurisdiction to hear and determine all questions of law and
fact, including questions of jurisdiction (the Act, s. 162(1)). It was the
ID’s mandated function to assess the inadmissibility of the Applicant and the
well-foundedness of the s. 44 Report (the Act, s. 44(2)). It is open to
the ID to choose not to accept the submission of the Minister, provided that it
does so with clear reasons and based on the evidence before it.
[15]
In this case, I
acknowledge the high degree of deference to be accorded to the ID and the fact
that the ID may reach a conclusion that does not agree with the Minister’s
conclusion. However, on the facts of this case, I cannot conclude that the
conclusion was reasonably supported by the evidence.
[16]
The essence of the
allegations against the Applicant is that he was engaged in activities
involving a criminal organization known as Global Human Services (GHS). As
reflected in a press
release of the Los Angeles Police Department (LAPD), the Applicant was one of
six individuals arrested by the LAPD on warrants connected with an
investigation into the activities of GHS. According to the press release, the
GHS was a registered non-profit charity which regularly sent humanitarian relief overseas in large
shipping containers while actually using this ‘charity’ as a front for
international car theft and fraud activities. The Applicant pleaded guilty to
and was convicted and sentenced in the State of California
for “grand theft auto”.
[17]
The
Applicant submits that the ID erred in finding that he had engaged in
activities associated with GHS’s pattern of criminal activity. I agree. The
only evidence linking the Applicant to the GHS was the LAPD press release,
which press release did not specify the Applicant’s connection to GHS. The
press release merely stated that the Applicant had been arrested in connection
with the police investigation of GHS. The Applicant testified before the ID
that he had never heard of GHS and did not know what it did nor whether it
existed, except insofar as it was mentioned to him during his criminal
proceedings in the United
States. The ID
found that the Applicant was not a member of GHS, and accepted his evidence
that he had not heard of it until he was charged. However, the ID concluded
that the Applicant was engaged in activities of the GHS, as contemplated by the
second ground of s. 37(1)(a).
[18]
The key
problem with the ID’s conclusion is that, beyond the LAPD press release, there
is nothing before the ID to support its conclusion in this regard. The Minister
was unsuccessful in obtaining any notes or details of the charges made against
the Applicant or of his plea agreements. Indeed, beyond the bare assertions in
the press release, there is nothing that supports a conclusion that the GHS is
a criminal organization. There is no documentary evidence in the Certified
Tribunal Record that describes the activities of the GHS. There was no evidence
regarding anyone who was a member of GHS, nor whether any of the people
arrested in connection with the investigation had been found to be members of
that organization.
[19]
It is very
clear that the Applicant was guilty of a crime; he did not deny that. However,
the ID’s conclusion is unsustainable unless there was evidence that: (a) the
GHS was a criminal organization within the contemplation of s. 37(1)(a); and
(b) the Applicant was engaged in activities linked to the GHS. The evidence is
that the Applicant pleaded guilty to insurance fraud and car theft. While it is
true that, as stated by the ID, those are the same activities in which the
press release stated the GHS engaged, there is no objective evidence
establishing that link. In the absence of such evidence, it was unreasonable
for the ID to find that the applicant was engaged in activities for GHS and,
therefore, had engaged in organized criminal activity.
[20]
I have a
similar concern with the ID’s conclusions on the Applicant’s role in
transnational crime (s. 37(1)(b)).
[21]
In sum,
the LAPD press release is woefully inadequate to support the ID’s findings on
either s. 37(1)(a) or 37(1)(b).
[22]
In
concluding that the ID’s decision is unreasonable, I am well aware of the low
standard of proof involved in a s. 37 inadmissibility decision. Section 33 of
the Act states that the facts that constitute inadmissibility include facts
arising from omissions and include facts that there are reasonable grounds to
believe:
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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.
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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
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[23]
In light
of s. 33, and the decisions of this Court affirming the reasonable grounds
standard for the proof of facts underlying section 37(1) in general, I conclude
that the ID correctly interpreted the standard of proof required for
demonstrating the existence of a criminal organization under section 37(1).
However, this does not excuse the ID from the obligation to find some
grounds to believe beyond a press release.
Conclusion
[24]
In its
decision, the ID carried out a careful and correct analysis of the law related
to its mandate. Moreover, the ID did not err by failing to give adequate notice
to the Applicant of the grounds upon which it was relying to determine
inadmissibility. However, the real problem – and the reviewable error – arises
due to the lack of an evidentiary record to support the ID’s conclusions. As a
result, the decision does not fall within
a range of possible, acceptable outcomes; it is not defensible in light of the
facts before the ID. It
will be set aside.
[25]
The
Applicant proposes a question for certification as to whether it is an error
for the ID to make a finding under both grounds of s. 37(1)(a) and 37(1)(b),
where the Minister has only alleged inadmissibility under one ground of s.
37(1)(a). The problem with such a question is that the Minister in his
submissions to the ID did refer to all three grounds, even though the primary
focus was on the grounds of membership in the GHS. The question does not arise
on the facts of this case. Moreover, even if the question does arise, the
answer is not necessarily determinative of the judicial review, since I have also
concluded that the decision was unreasonable.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
the
application for judicial review is allowed, the decision of the ID is quashed
and the matter is sent back to the ID for re-determination by a newly-constituted
panel of the ID; and
2.
no
question of general importance is certified.
“Judith
A. Snider”
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