Canada (Minister of Citizenship and Immigration) v. Thanaratnam, 2005 FCA 122

Date: 20050408

Docket: A-229-04

Citation: 2005 FCA 122

CORAM:        NOËL J.A.

SEXTON J.A.

EVANS J.A.

BETWEEN:

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                            Appellant

                                                                           and

                                                    SHARONE THANARATNAM

                                                                                                                                        Respondent

                                           Heard at Toronto, Ontario, on March 7, 2005.

                                   Judgment delivered at Ottawa, Ontario, on April 8, 2005.

REASONS FOR JUDGMENT BY:                                                                                 EVANS J.A.

CONCURRED IN BY:                                                                                                       NOËL J.A.

                                                                                                                                     SEXTON J.A.

Date: 20050408

Docket: A-229-04

Citation: 2005 FCA 122

CORAM:        NOËL J.A.

SEXTON J.A.

EVANS J.A.

BETWEEN:

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                            Appellant

                                                                           and

                                                    SHARONE THANARATNAM

                                                                                                                                        Respondent

                                                    REASONS FOR JUDGMENT

EVANS J.A.

A.        INTRODUCTION

[1]                Sharone Thanaratnam is a 27 year-old citizen of Sri Lanka and has been a permanent resident of Canada since June 1993. In a decision rendered in September 2002, a Member of the Immigration Division of the Immigration and Refugee Board ("the Board") found him inadmissible, and thus liable to be deported.

[2]                The Board noted that, while the proceeding was initiated by a report issued under the Immigration Act, R.S.C. 1985, c. I-2, it concluded under the Immigration and Refugee Protection Act, S.C. 2001, c.27 ("IRPA"), which came into effect during the hearing. It is not disputed that, to the extent that the two statutes differ, the IRPA applies: IRPA, section 190.

[3]                The Board based its decision on two grounds. First, having been convicted in Canada of offences punishable by terms of imprisonment of ten years or more, he is inadmissible under paragraph 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"). He was sentenced to five months' imprisonment for these offences. At the inquiry before the Board he conceded that he is liable to be deported on this ground.

[4]                Second, to put it broadly, there are reasonable grounds to believe that he has been involved with gangs engaged in criminal activities and is thus inadmissible pursuant to the IRPA, paragraph 37(1)(a). The Board's finding that Mr. Thanaratnam is inadmissible under paragraph 37(1)(a) deprives him of a right of appeal to the Immigration Appeal Division of the Board against his deportation: IRPA, subsection 64(1).

[5]                Mr. Thanaratnam applied for judicial review of the Board's decision. A Judge of the Federal Court quashed the decision that he was inadmissible under paragraph 37(1)(a), holding that there was no evidence on which the Board could rationally conclude that Mr. Thanaratnam was a "member" of a criminal organization: Thanaratnam v. Canada (Minister of Citizenship and Immigration), 2004 FC 349.

[6]                The Judge certified the following question for appeal pursuant to paragraph 74(d) of the IRPA:

In order to prove membership in a criminal organization under s.37(l)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, is evidence of involvement in the organization's activities sufficient or must there be indicia of actual membership?

[7]                I would allow the Minister's appeal. In my respectful view, the Judge erred in law by considering only whether Mr. Thanaratnam was a "member" of a gang. Having found that he was not, the Judge ought to have asked whether Mr. Thanratnam was nonetheless inadmissible by virtue of the last phrase of paragraph 37(1)(a), for "engaging in activity that is part of ... a pattern" of organized criminal activity.

[8]                Since, in my opinion, it is not necessary on the facts of this case to determine whether Mr. Thanaratnam was a member of a criminal organization, I do not propose to answer the certified question. The appeal boils down to one largely factual issue: was there sufficient evidence before the Board to enable it to decide that there were reasonable grounds to believe that Mr. Thanaratnam was engaging in activity that was part of a gang-related pattern of criminal activity, and, hence, inadmissible under paragraph 37(l)(a).

B.        LEGISLATIVE FRAMEWORK

[9]                These are the statutory provisions immediately relevant to the disposition of this appeal.

                                         Immigration Act

                      Immigration and Refugee Protection Act

C.        DECISION OF THE MEMBER OF THE IMMIGRATION DIVISION

[10]            During a hearing that lasted 13 days, the Board considered substantial documentary evidence and oral testimony, much of it from police officers knowledgeable about the nature and activities of Tamil gangs in Toronto. The evidence relevant to this case concerned two rival Tamil gangs operating in Greater Toronto, the V.V.T., with which Mr. Thanaratnam was alleged to be associated, and the A.K. Kannan.

[11]            A police officer testified that approximately 100 people were involved with these gangs and that they engaged in turf war to protect their "territory", which they use to support criminal activities. The crimes in which these Tamil gangs are said to have been involved include: murder, attempted murder, serious assaults, extortion, kidnapping, credit card fraud, false passports, people smuggling, and drug and weapons offences. Most of their victims are Tamils.

[12]            Using criteria of gang membership developed by Criminal Intelligence Service Canada, the Toronto police in 2001 launched "Project 1050", which involved the preparation of "investigative/enforcement files" to determine if individuals were members of either gang. As a result, a large number of arrests were made of persons believed to be gang members against whom immigration sanctions could be imposed. Mr. Thanaratnam was arrested in October 2001 as part of Project 1050, and remained in detention until his release in September 2003. The evidence was that, as a result of Project 1050, the level of Tamil gang activity subsided considerably.

[13]            The Board summarized (at para. 13) its findings on the two gangs, findings which have not been challenged.

a) The groups or "gangs" known as V.V.T. and A.K. Kannan are organizations that exist, and that operate primarily in the Toronto area. They have a structure with both leaders and followers.

b) There are reasonable grounds to believe these two groups are engaged in criminal activity including assaults, drug offences; kidnappings, weapons offences etc. This activity is contrary to either the Criminal Code or the Controlled Drugs and Substances Act.

c) The criminal activity is planned and organized by a number of persons acting in concert - planned in particular by the group leaders primarily and put into effect by the members.

[14]            Much more controversial was whether there were reasonable grounds to connect

Mr. Thanaratnam to these gang-related criminal activities so as to bring him within paragraph 37(1)(a) as a member of the V.V.T., or as one who engaged in activity that was part of a pattern of criminal activity planned and organized by the V.V.T. in furtherance of the commission of criminal offences.

[15]            While the evidence before the Board concerning Mr. Thanaratnam's connections with the criminal activities of the V.V.T. can be divided into the principal categories indicated below, it is important not to lose sight of its totality.

[16]            First, starting in 1995, and increasing after 1999, Mr. Thanaratnam had more than 20 "interactions" with the police, in which he was arrested for, under suspicion of, or charged with various offences, including assaults, swarming, attempted murder, and conspiracy to murder. All involved other persons of Sri Lankan origin, including some who were believed to be members of the V.V.T. None of the charges came to trial.

[17]            There were details before the Board of the circumstances leading to some of these "interactions". In one instance, for example, the police went to investigate what they thought was a gun shot in a park and came across a group of men of Sri Lankan origin, including Mr. Thanaratnam, with machetes and a hatchet. In another, Mr. Thanaratnam, and others, were charged with attempted murder with a car; the charge was dropped against Mr. Thanaratnam when it was discovered that the car involved did not to belong to him. This incident occurred the day after Mr. Thanaratnam had been severely beaten with an iron bar.

[18]            There was also evidence that the police had wire-tapped a telephone call made by Mr. Thanaratnam to the leader of the V.V.T, who was apparently not at home. On another occasion, Mr. Thanaratnam had been seen with a group of arguing V.V.T. and A.K. Kannan members.

[19]            Second, in 1995 and 1999 attempts were made on Mr. Thanaratnam's life by drive-by shooters, while he was riding in vehicles with other persons of Sri Lankan origin. In addition, as noted above, in 2000 he was attacked with an iron bar, and severely injured, by persons who were also believed to be of Sri Lankan origin. Mr. Thanaratnam initially told the police that his injuries had been caused by a fall, but later said that he had been attacked because he had testified at the trial of persons charged with murdering his friend. The police regarded this attack as "gang related" and probably retaliation by members of a rival gang. In 2001, he was one of two victims of a "swarming" by a group of assailants.

[20]            After considering the various criteria relevant for determining whether a person is a "member" of a criminal organization, the evidence outlined above, and Mr. Thanaratnam's testimony that church activities in the community consumed most of his time, the Board concluded (at para. 24) as follows:

What emerges from an examination of the events through the testimony and documents in relation to these events is a picture of a young man who consistently has found himself "in the middle of things" since early 1995.

[21]            Having found that Mr. Thanaratnam's denial of any knowledge of Tamil gangs and of his involvement in their activities was not credible, the Board continued (at para. 33):

I have not found Mr. Thanaratnam's evidence as to non-involvement in criminal activity or the V.V.T. to be persuasive. I believe the evidence places him on many occasions in the company of persons also alleged to be involved in criminal/gang activities. In my estimation a reasonable person viewing all the evidence put together at this hearing would conclude he was part of this gang activity. In the final analysis of the overall evidence therefore, I am satisfied the test of "reasonable grounds to believe" he is a member of the V.V.T. or engages in activities undertaken by this group has been met.

C.        DECISION OF THE FEDERAL COURT

[22]            The Judge made two evidential points about "reasonable grounds to believe". First, decision-makers can have "reasonable grounds to believe" on the basis of evidence that would not be admissible in a trial (at para. 13). However, the standard, "reasonable grounds to believe", demands "more than mere suspicion. It connotes a degree of probability based on credible evidence," although it "is certainly less than a balance of probabilities". Second, the Judge stated (at para. 19) that, in the context of paragraph 37(1)(a), the fact that a person had been charged with an offence "may be relevant to the issue of membership" in a criminal organization.

[23]            Turning to whether Mr. Thanaratnam was a "member of an organization" pursuing criminal activities, the Judge was satisfied that the evidence before the Board was sufficient for it to conclude that the V.V.T. was an "organization" within the meaning of paragraph 37(1)(a).

[24]            However, he concluded (at para. 39) that, although there was evidence that Mr. Thanaratnam "was involved in gang-related events and that he was occasionally seen associating with gang members", a finding of membership in a gang required more: for example an acknowledgement of gang membership by the person concerned, identification as a gang member by physical evidence or reliable sources of information, or previous court findings.

[25]            In the absence of any such evidence, the Judge held (at para. 41) that there was no basis for the Board's

finding that there were reasonable grounds believe that Mr. Thanaratnam was a member of an organization devoted to criminal activities in the sense that he actually belonged to such a group [emphasis added].

D.        ISSUES AND ANALYSIS

Issue 1: Standard of Review

[26]            On questions of fact and factual inferences, the Board's decisions are reviewable on a standard of patent unreasonableness, pursuant to the Federal Courts Act, R.S.C 1985, c. F-7, paragraph 18.1(4)(d). In contrast, deference may not be afforded to the Board's interpretation of particular provisions of its enabling statute: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, 2002 SCC 3">2002 SCC 3.

[27]            There are two questions to be decided in this appeal. First, did the Applications Judge err in law by failing to consider whether Mr. Thanaratnam was "engaging in activity that is part of" a pattern of criminal activity within the meaning of paragraph 37(1)(a)? Second, did the Board err in concluding that the evidence before it was sufficient to constitute "reasonable grounds to believe". This is a question of mixed fact and law. However, in this case, it is so largely factual that the Board's finding should be set aside only if patently unreasonable.

Issue 2: Was the Judge's analysis of the issues erroneous?

[28]            It is implicit in the Board's reasons that it concluded that Mr. Thanaratnam was inadmissible under both parts of paragraph 37(1)(a), that is, as a "member" of _.a criminal organization and as a person engaged in gang-related activities. Although it devoted most of its analysis of Mr. Thanaratnam's conduct to the membership issue, the Board did not differentiate between the two. For example, it stated towards the end of its reasons (at para. 33):

In the final analysis of the overall evidence therefore, I am satisfied that the test of "reasonable grounds to believe" he is a member of the V.V.T. or engages in activities undertaken by this group has been met.

See also the similar references at paras. 14 and 22 of the Board's reasons.

[29]            Having concluded that the Board had erred in finding that Mr. Thanaratnam was a "member" of the V.V.T., the Applications Judge did not go on to consider whether the evidence that he was "involved in gang related events" (the first criterion used by the police in identifying gang members) was sufficient to support a finding that he was inadmissible for engaging in activities that were part of the V.V.T.'s pattern of criminal activities, even if he did not "belong" to the gang.

[30]            In my opinion, this was an error of law. 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".

[31]            In the absence of a finding by the Judge on whether the Board's decision could be upheld on the basis that there was sufficient evidence before the Board to enable it to conclude that there were reasonable grounds to believe that Mr. Thanaratnam was engaging in activities that were part of the V.V.T.'s pattern of criminal activity, I turn now to that question.

Issue 3: Was the Board's conclusion patently unreasonable?

[32]            The question to be decided is whether there was any evidence rationally capable of supporting the Board's finding that there were reasonable grounds to believe that

Mr. Thanaratnam was "engaging 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...".

[33]            It is important to reiterate that the Court is not sitting in the same place as the Board. Our function is not to decide whether, on the evidence before the Board, there were "reasonable grounds to believe", but only whether it was obviously irrational for the Board to conclude that there were. In the absence of an allegation that the Board erred in law, or that its procedure was unfair, it is difficult to establish that the Board's conclusion that "reasonable grounds to believe" existed was patently unreasonable. And, despite her able advocacy, Ms. Jackman, Mr. Thanaratnam's counsel, did not succeed.

[34]            A conclusion is not patently unreasonable merely because inferences different from the Board's could reasonably be drawn from the evidence. While no single piece of evidence in this case may be determinative, when the evidence is considered cumulatively, it was, in my opinion, sufficient to ensure that the Board's decision could not be characterized as patently unreasonable.

[35]            For example, the fact that three attempts were made on Mr. Thanaratnam's life, two by drive-by shooters and one by a group of assailants armed with an iron bar, in the circumstances described above, suggest that these were part of the ongoing turf war between the rival gangs in which Mr. Thanaratnam was involved. A similar inference may be drawn from the fact of his being found in the park with others, in possession of machetes, and from his participation in a group brawl outside a night club. Finally, although the charge against Mr. Thanaratnam of attempted murder by motor vehicle was dropped, this offence may be regarded as retaliation for the beating with an iron bar that he had suffered the day before and, thus, indicative of his involvement in gang-related activities.

[36]            The reasonableness of this inference is supported by one of the police officers involved in Project 1050, who testified before the Board that the fact that a person was the victim of a gang kidnapping could be regarded as indicating that the person was involved in gang-related crime. On the basis of the attacks on Mr. Thanaratnam, the frequency of his recorded "interactions" with the police and the fact that others involved in them were believed to be gang members, the officer was of the view that most of the incidents in question involving Mr. Thanaratnam related to gang activities.

[37]            It is possible, of course, as his counsel said, that Mr. Thanaratnam merely "hung out" with V.V.T. members and was simply unlucky enough to be in the wrong place at the wrong time. However, as I have already indicated, the fact that a more benign explanation may exist does not render the opposite conclusion patently unreasonable, particularly when account is taken of the large number of "interactions" between the police and Mr. Thanaratnam before his detention in 2001.

E.        CONCLUSIONS

[38]            For these reasons, I would allow the appeal, dismiss the application for judicial review, and restore the decision of the Member of the Immigration Division of the Immigration and Refugee Board.

                                                                                   "John M. Evans"             

"I agree                                                                                           J.A.                     

     Marc Noël J.A."

"I agree

     J. Edgar Sexton J.A."

                          FEDERAL COURT OF APPEAL

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                       A-229-04

APPEAL FROM AN ORDER OF THE FEDERAL COURT DATED APRIL 13, 2004, FEDERAL COURT FILE NO. IMM-4621-02.

STYLE OF CAUSE;                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION v. SHARONE THANARATNAM

PLACE OF HEARING:                                 TORONTO, ONTARIO

DATE OF HEARING:                                   MARCH 7, 2005

REASONS FOR JUDGMENT BY: EVANS J.A.

CONCURRED IN BY:                                  NOËL J.A.

SEXTON J.A.

DATED:                                                          APRIL 8, 2005

APPEARANCES BY:

Mr. Greg George                                               FOR THE APPELLANT

Ms. Barbara Jackman                                        FOR THE RESPONDENT

SOLICITORS OF RECORD:

John H. Sims, Q.C.

Deputy Attorney General of Canada                  FOR THE APPELLANT

Barbara Jackman

Barrister & Solicitor

Toronto, Ontario                                               FOR THE RESPONDENT