Docket: IMM-8866-23
Citation: 2025 FC 158
Ottawa, Ontario, January 24, 2025
PRESENT: The Honourable Mr. Justice Favel
BETWEEN: |
MOSTAFA ASKARI |
Applicant |
and |
MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] Mostafa Askari [the Applicant] seeks judicial review of a June 23, 2023 Immigration Division [ID] decision [Decision]. Upon finding the Applicant to be a member of a group involved in criminality, and therefore inadmissible pursuant to section 37(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], the ID issued a deportation order against him.
[2] This application for judicial review is dismissed.
II. Background
[3] The Applicant is a permanent resident of Canada and a citizen of Afghanistan. He landed in Canada on January 26, 2004, as a permanent resident and Convention refugee.
[4] The Applicant is the subject of a report written pursuant to IRPA section 44(1), dated November 25, 2022. This report was submitted to the ID accompanied by an admissibility hearing referral signed by the delegate to the Minister of Public Safety and Emergency Preparedness [Minister] on April 30, 2021. The report alleges the Applicant is a person described under IRPA section 37(1)(a), as follows:
Organized criminality
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
…
[5] The section 44(1) report arises from a series of illegal drug charges laid on the Applicant and various co-accused on or about April 23, 2020. The offences stem from events occurring between March 3 and April 23, 2020.
[6] On May 18, 2022, the Ontario Superior Court of Justice stayed all charges against the Applicant, as proceeding would have compromised a confidential source.
III. Decision
[7] On June 23, 2023, the ID released its Decision finding the Applicant inadmissible under IRPA section 37(1)(a). The ID assessed both whether the Applicant is a member of a criminal organization and whether he engaged in activity that is part of a criminal pattern (Thanaratnam v Canada (Minister of Citizenship and Immigration), 2005 FCA 122 at para 30).
[8] The organization at issue, Vinogradsky Group, was investigated as part of “Project Platinum”
in response to turf wars between rival towing companies. The Applicant is allegedly a member of a smaller subset within the organization, the Jassem Drug Trafficking Group.
[9] The ID’s findings are summarized below.
A. Criminal Organization
[10] There are reasonable grounds to believe the Vinogradsky Group and Jassem Drug Trafficking Group are criminal organizations. The evidence included police synopsis of wiretap audio, a record of seized contraband, visual surveillance notes, and testimonies by the Applicant and a Staff Sergeant.
[11] The ID assessed the Applicant’s arguments, including: the reliability and veracity of the wiretap summaries; difficulties identifying a speaker based only on their voice; and the Staff Sergeant incorrectly identifying the Applicant as speaking Arabic rather than Farsi at the hearing. The Staff Sergeant testified to the process of identifying the speaker to obtain authorization for a wiretap, and explained the Applicant’s phone number was the specific target line in several event summaries. The ID found there are reasonable grounds to believe the identified speaker is the Applicant.
[12] The ID acknowledged the hearsay format of the wiretap summaries, limiting their potential weight. However, the summaries also identified evidence such as target phone numbers, speakers of the targeted lines, quotations, and verbatim excerpts from text messages. Therefore, the ID found these portions of the summaries relevant to determining the actors, size of the group, and general subject matter indicating a criminal purpose.
[13] The ID recognized this Court’s finding in Canada (Public Safety and Emergency Preparedness) v Korasak, 2021 FC 1047 [Korasak] that, although wiretap evidence may not provide a sufficient basis to establish membership in an organization, in some circumstances a targeted selection of wiretap evidence is sufficient to establish certain facts (at para 39). The ID found the facts established by the targeted selection of wiretap evidence, corroborated by authorized police surveillance and warrant seizures, meets the reasonable grounds to believe standard, allowing the ID to place some weight on the summaries. Additional evidence, including police surveillance notes and records of seized contraband, is also sufficiently probative to meet the reasonable grounds standard.
[14] Events #1, #2 and #5 occurred in March 2020. Police surveillance notes show the Applicant and individuals associated with the Jassem Drug Trafficking Group engaged in the following activities:
· meetings at a hotel;
a phone call between the Applicant and Salloum Jassem [Mr. Jassem];
retrieval of a large bag;
a meeting between the Applicant and Mr. Jassem;
the Applicant and another individual driving to London, Ontario, and then Sarnia, Ontario; and,
unidentified persons entering the vehicle for short periods of time in each of these locations.
[15] Police raided the subject hotel on March 14, 2020, seizing fentanyl and cocaine, and $5,790 in cash. The ID found the activities listed in Events #1, #2 and #5 are indicative of drug transactions.
[16] Event #7 occurred on March 15, 2020. Toronto Police and Fire responded to a fire at a site affiliated with Prime Towing. The wiretap summary of March 14 and 15, 2020 noted discussions between the Applicant and Mr. Jassem, one of which centered on the police search warrants at the hotel. The Applicant asked if he should deal with “the thing”
and Mr. Jassem replied it was up to the Applicant, but he should be safe. Another conversation discussed “Prime”
, stating the Applicant was given an incorrect address as no trucks were there. The address texted to the Applicant is directly beside the Prime Towing arson site. The Applicant later texted, “you should have seen it bro, thick thick [sic]”
.
[17] Police allege the video surveillance shows a car arriving at Prime Towing, a front passenger exits with a red gas can, lights a fire, and returns to the vehicle. The ID found the photographs are not clear and were therefore not reliable to ascertain the identities of those present at the time of arson. The ID placed little weight on the conversation summaries, as they are not verbatim. The text messages, however, are verbatim. When viewed cumulatively with the other events in question, this evidence weighed toward finding the Applicant inadmissible.
[18] The wiretap summaries indicate the Applicant received a call on April 18, 2020, from an unknown individual wanting to purchase a kilogram of cocaine. The caller inquired about quality and quantity. The Applicant stated the price was “50”
, which investigators believe meant $50,000. The Applicant then called Mr. Jassem, stated he had a question to ask, and disconnected the line. Investigators believe the subjects disconnected the line to make use of an alternate form of communication. The ID acknowledged the same hearsay evidentiary issues in this summary. Though insufficient on its own, cumulatively it contributed to finding the Applicant inadmissible.
[19] In its reasons, the ID noted additional similar wiretap communications regarding a criminal purpose but elected not address each of them. The evidence included in the summaries established a hierarchal structure, more than three individuals, and their actions toward a criminal purpose. The ID found this evidence supported the Minister’s allegations.
[20] The ID placed significant weight on Event #11, occurring on April 23, 2020. Police intercepted conversations between the Applicant and a second associated individual [individual B]. The Applicant was informed a third individual [individual C] would pick him up, they would attend an address where they would pick up “2”
(interpreted by police as two kilograms of a controlled substance), and then travel to Hamilton where friends would pick up everything. Police surveillance observed the Applicant enter the vehicle [vehicle one] with individuals B and C. They drove to the address, the Applicant exited vehicle one and entered a different vehicle [vehicle two]. Minutes later the Applicant exited vehicle two with a shopping bag and returned to vehicle one. Police followed vehicle one, stopped it, and arrested the Applicant, and individuals B and C. The shopping bag contained 1010.46 grams of Crystal Methamphetamine and 742.64 grams of Purple Fentanyl.
[21] The Applicant testified the target line phone number is not his and was not known to him. The Applicant also denied his participation in Event #11, described above. The Applicant states he was unaware of the contents of the shopping bag until his court appearance. At the time of arrest, the Applicant remembered being in vehicle one when they were attacked, and he lost consciousness.
[22] The ID found the police evidence highly probative, even excluding the wiretap summary. The ID also found the police evidence more reliable than the Applicant’s testimony, which appeared self-serving and lacking credibility.
[23] After extensive review of the evidence, the ID determined the Vinogradsky Group meets the definition of a “criminal organization”
for the purposes of the Criminal Code. The ID also found the Jassem Drug Trafficking Group, subset of the Vinogradsky Group, also meets the definition of a criminal organization as they are comprised of more than three individuals whose actions and intentions in drug trafficking are well established by the evidence.
B. Membership in Criminal Organization
[24] The ID ultimately determined the Applicant is a member of the Vinogradsky criminal organization by way of membership in the Jassem Drug Trafficking Group, which itself is an organization falling under the purview of IRPA section 37(1)(a).
[25] The ID noted its previous finding, that the Applicant’s denial of membership in the Jassem Drug Trafficking Group is not credible. The ‘Project Platinum’ report described the Applicant’s active and willing participation in criminal events - picking-up and dropping-off contraband drugs at multiple locations (Event #1, #2, #5); arson (Event #7); and trafficking in drugs (Event #11).
[26] The ID found the purpose of the Applicant’s participation in these events was to forward the drug trafficking aims of the organization. The April 23, 2020 drug trafficking (Event #11) evidence is significant to this finding. While not a leader in the group, the Applicant’s participation was frequent, as evidenced throughout the surveillance period.
[27] The ID found the arson (Event #7) evidence is not conclusive of membership. The evidence does not firmly place any of the individuals from the relevant intercepted phone call at the scene. However, Events #1, #2, #5 and #11 are sufficient to find that the Applicant is a member on the reasonable grounds to believe standard.
C. Engagement in Activity that is a Part of a Pattern of Criminal Activity
[28] The ID was further satisfied there are reasonable grounds to believe the Applicant has participated in activity that is part of a pattern of criminal activity, credibly subsuming him under the second branch of IRPA section 37(1)(a).
[29] On the same factual analysis, the ID found reasonable grounds to believe the Applicant knowingly engaged in criminal activity by the coordination of buying and selling of drugs through his conversations with Mr. Jassem. The ID again placed significant weight on the April 23, 2020 drug trafficking (Event #11) evidence.
IV. Issues and Standard of Review
[30] The only issue in this matter is whether the Decision is reasonable.
[31] Both parties agree this Decision is reviewable on the reasonableness standard (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]). I agree. This case does not engage one of the exceptions set out by the Supreme Court of Canada in Vavilov. Therefore, the presumption of reasonableness is not rebutted (Vavilov at paras 16-17).
V. Relevant Provisions
[32] The following section is relevant in assessing the reasonableness of the Decision:
Proceedings
173 The Immigration Division, in any proceeding before it,
(a) must, where practicable, hold a hearing;
(b) must give notice of the proceeding to the Minister and to the person who is the subject of the proceeding and hear the matter without delay;
(c) is not bound by any legal or technical rules of evidence; and
(d) may receive and base a decision on evidence adduced in the proceedings that it considers credible or trustworthy in the circumstances.
[emphasis added.]
VI. Analysis
A. Applicant’s Position
[33] The Applicant notes, though the record is voluminous, most of it is irrelevant. The main evidence is contained in summaries created by police officers, described above. The real issue is the ID’s unreasonable findings based on this evidence.
[34] The Applicant does not challenge the ID findings on the Vinogradsky Group. Instead, the Applicant challenges the ID findings that he is a member of a criminal organization engaged in activity that is part of a criminal pattern.
[35] The ID correctly identified the Minister’s burden of proof to establish the Applicant as inadmissible. The ID also correctly identified the standard of proof as “reasonable grounds to believe”
. In Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 [Mugesera], the Supreme Court of Canada explained what this standard requires:
114 … The FCA has found, and we agree, that the “reasonable grounds to believe” standard requires something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities. In essence, reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information. [citations omitted]
[36] The ID is not bound by legal or technical rules of evidence. Therefore, it may receive, and base its decision, on evidence adduced in the proceedings that it considers credible or trustworthy in the circumstances (IRPA, s 173(d)). However, the ID does not have discretion over what evidence is required support a finding of admissibility. An admissibility decision must be based on something more than mere suspicion. There must be an objective basis for the belief, founded on compelling and credible evidence (Mugesera at para 114; Demaria v Canada (Minister of Citizenship and Immigration), 2019 FC 489 at paras 66-67, 121-124).
[37] The majority of the evidence is contained in a 347-page document, together with the oral testimony of the Applicant and the police Sergeant. However, the ID only relied on a portion of this evidence, the Substantive Events Summary [SES], to determine the Applicant is a person as described in IRPA section 37(1)(a). The Applicant has two concerns about the SES: (i) the reliability of the Applicant’s identification, and (ii) the hearsay nature of the evidence.
[38] The Sergeant testified the SES, based on wiretapped telephone conversations, were prepared by the Toronto Police Service and given to the Canada Border Services Agency for the Applicant’s hearing. Caller identification is based on the telephone number used. Positive identity confirmations are “…based on the investigators who are in the room and their history of intercepting [the Applicant] in prior sessions, based on listening to him in other calls on his tone, cadence, pitch, of his voice…”
, even when the caller does not speak English. There is no record showing which translators were used, or how many. Additionally, the Sergeant gave no direct evidence showing the target telephone number actually belonged to the Applicant.
[39] The Sergeant did not author the SES. Rather, he supervised the officers who did. The Sergeant listened to the majority of the wiretaps, but not all of them. The Sergeant conceded the officers listened to the wiretaps, and prepared a summarized product which includes their personal comments. There is no way to identify how many officers prepared each summary, nor how many revisions were made. The SES does not include details of how the surveillance was performed, from what distance, or for what length of time. Nor does the SES show why the Applicant was selected for surveillance.
[40] The ID repeatedly referenced the SES’s inherent untrustworthiness, lack of credibility, and unreliability, yet still relied on the SES as part of the totality of evidence. Based on the SES, the ID found the Applicant owns the target phone number, and was involved in Events #1, #2, #5, #7, and #11. In two instances the ID found evidentiary deficiencies rendering the Events insufficient to establish reasonable grounds on their own. Nevertheless, the ID found the deficient Events cumulatively contributed to the inadmissibility finding.
[41] The facts of this matter are similar to Stojkova v Canada (Citizenship and Immigration), 2021 FC 368 [Stojkova]. In Stojkova, this Court set aside the ID’s decision for failure to assess the reliability and trustworthiness of the video surveillance recordings (at paras 17-18). The actual surveillance footage was not tendered in evidence to permit the ID to assess the reliability of the Applicant’s identification (at para 18).
[42] The ID failed to explain why the SES allegations were preferred over the Applicant’s testimony. The Applicant denied participating in any events outlined in the SES. The ID dismissed the Applicant’s denials due to his personal interest in minimizing or denying involvement. The ID reasons repeat this credibility finding with no additional analysis. The Applicant’s personal interest is an insufficient basis to ground a credibility finding.
[43] The most fundamental issue, verification of the Applicant’s identity, was delegated to the authors of the SES. The ID did not conduct an independent assessment of the credibility and trustworthiness of the SES evidence. Therefore, the Decision is unreasonable.
B. Respondent’s Position
[44] IRPA Section 37(1)(a) does not require actual membership in a criminal organization. An applicant will be found inadmissible where there are reasonable grounds to believe they have “…engaged in activity that is a part of such a pattern of criminal activity…”
(Canada (Citizenship and Immigration) v Tran, 2016 FC 760 at para 21). The reasonable grounds to believe standard applies only to questions of fact and may be found to exist “where there is an objective basis for the belief which is based on compelling and credible information”
(Mugesera at paras 114, 116).
[45] The ID is uniquely situated to assess the credibility of evidence. Its determination of fact, and mixed fact and law, is entitled to a high level of deference from the Court (Wang v Canada (Public Safety and Emergency Preparedness), 2021 FC 226 at para 37 [Wang]). The evidentiary flexibility under IRPA section 173 allows the ID to consider evidence from sources that may not be acceptable in a court. This facilitates discretion in credibility and trustworthiness determinations, as long as the discretion is exercised reasonably (Pascal v Canada (Citizenship and Immigration), 2020 FC 751 at para 15 [Pascal]). The ID is free to assign weight to evidence it considers credible (Sittampalam v Canada (Minister of Citizenship and Immigration), 2006 FCA 326 at para 49). This Court recognizes that societal interests in safety are properly reflected by the latitude in the source and type of evidence the ID can consider (Canada (Minister of Citizenship and Immigration) v Thanabalasingham, 2003 FC 1225 at para 145).
[46] In Pascal, the ID erred by relying only on the opinions expressed in police reports, newspaper articles, or on the mere fact the applicants had been charged, without turning its mind to the specific facts contained therein. The present matter is distinguishable from Pascal. The ID did turn its mind to the facts contained therein, reasonably preferring them to the Applicant’s blanket denials. The ID member noted where wiretap transcripts are incomplete or in summary form. The ID is entitled to scrutinize whether to apply weight to police evidence (Abbas v Canada (Citizenship and Immigration), 2019 FC 12 at para 42).
[47] The ID relied on the Court’s statement in Korasak (at para 39):
“I accept that, in some cases, it can be unreasonable to reject good evidence on the basis that it only represents a small portion of the overall evidentiary record. There are times when a very targeted and limited selection of the evidence is all that is required to establish a particular fact or question of mixed fact and law”.
[48] In this case, the ID had “good evidence”
in the form of the Applicant’s April 23, 2020 drug bust where the Applicant was literally “holding the bag”
.
[49] The ID’s Decision is reasonably based on compelling and credible evidence that included the intercept summaries, police synopsis, record of seized drugs, and visual surveillance. The ID correctly identified the reasonable grounds to believe standard of proof required. The evidentiary burden on the Minister is low. The ID reasonably assessed the evidence of cumulative interactions between the Applicant and the criminal organization to determine the burden is met.
C. Conclusion
[50] The Decision is reasonable.
[51] As acknowledged by counsel, the dispute is narrow. The Applicant takes issue with the ID’s treatment of evidence in finding reasonable grounds to believe the Applicant is a member of a criminal organization and engaged in activity that is part of a criminal pattern. This matter essentially distills to the compelling and credible nature of evidence forming the basis of the ID’s reasonable grounds to believe.
[52] Jurisprudence confirms the term “member”
must be given an unrestricted and broad interpretation. Membership may include “belonging to”
an organization and need not require formalities (Pascal at para 13). The Supreme Court of Canada explains “the ‘reasonable grounds to believe’ standard requires something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities”
(Mugesera at para 114). Reasonable grounds exist where there is an objective basis for the belief which is based on compelling and credible information (Mugesera at para 114). IRPA section 33 governs the interpretation of section 37:
“…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.”
[53] IRPA section 173 further provides the ID with flexibility and discretion in considering and assessing evidence, including evidence from sources that may not be acceptable in Court (Pascal at para 15).
[54] The Applicant misconstrues the ID’s credibility finding as simply dismissing the Applicant’s testimony on the basis of his personal interest. The ID cited the British Columbia Court of Appeal’s guidance on assessing credibility:
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried the conviction of truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.
(Faryna v Chorny, 1951 CanLII 252 (BCCA) at 357).
[55] The ID then summarized the denials in the Applicant’s testimony: knowledge of the target telephone number; knowledge of many, but not all, of the co-accused or other associates with the criminal organization; and involvement in the SES documented events. The ID noted the Applicant’s version of events on April 23, 2020 (Event #11). In particular, the Applicant denied any recollection of the alleged conversations. At the time of arrest, the Applicant remembers being in the subject car when they were attacked and he lost consciousness. The Applicant’s next stated memory is being by the roadside with a broken nose and police around him.
[56] The ID recognized the Applicant has an interest in the outcome, but the ID did not end its analysis there. The ID considered the Applicant’s testimony on the April 23, 2020 events and found them implausible. Even excluding the wiretap information, the ID found police surveillance described the Applicant’s actions in detail: the Applicant entered a second vehicle for minutes, exited carrying a shopping bag, and upon arrest, that bag contained large quantities of contraband drugs. The ID found the police surveillance information reliable and accurate. It included a detailed timeline, licence plate numbers of the vehicles, and pictures of the seized drugs. Accordingly, the ID subjected the Applicant’s testimony to a consideration of the conflicting evidence and found the police’s evidence highly probative and more reliable.
[57] The ID is uniquely situated to assess credibility of evidence and is owed a high level of deference from the Court (Wang at para 83). After considering the record, I find the Applicant has not shown the ID erred in its credibility finding.
[58] Furthermore, the ID is not bound by legal or technical rules of evidence and may base a decision on evidence adduced in the proceeding that it considers credible or trustworthy in the circumstances (IRPA, s 173). The Applicant submits the ID relied on the SES despite its alleged unreliability and hearsay evidence and did not conduct its own independent assessment of the evidence, including on the issue of identification.
[59] The Applicant is correct, the ID referenced SES limitations. Much of the SES summarizes conversations and includes officers’ opinions, which the ID correctly identified as hearsay. However, the authorized police surveillance and warrant seizures corroborated the SES allegations. The ID noted additional evidence that is sufficiently probative to meet the reasonable grounds to believe standard, including police surveillance notes and records of seized contraband material. The ID’s Decision is based on the totality of evidence, not the SES summaries alone.
[60] The ID also reviewed identification issues and discussed the Sergeant incorrectly identifying the Applicant as an Arabic speaker, rather than Farsi. The ID assessed this error by reviewing the evidence in the Sergeant’s testimony, specifically: an interpreter contracted by the police translated all foreign language communications; the Sergeant was not the interpreter; the Sergeant did not listen to all the wiretaps; and, the police team that did listen to all the wiretaps identified when an interpreter was required. The ID noted error may speak to knowledge, however the Sergeant testified he had not recently reviewed the wiretaps. There is no indication the police obtained the wrong interpreter, nor reason to doubt the accuracy of translations.
[61] Similarly, the ID reviewed concerns of the Applicant’s identification in the wiretaps. The ID noted the Sergeant’s testimony on the required process for target line identification. When a new party becomes identifiable through contacting a targeted line, the police apply for authorization to target that new party’s specific phone number based on criteria set out in the Criminal Code. While the ID acknowledged mistakes may happen, it found reasonable grounds to believe the person identified is, more likely than not, the Applicant.
[62] The ID recognized it must conduct an independent examination of the evidence. Based on a review of the record, it did so. I find the ID reasonably relied on the portions of SES evidence it corroborated through additional evidence. This is most notably demonstrated through the significant weight placed on the events of April 23, 2020, in finding the Applicant is both a member of a criminal organization and that he engaged in activity that is part of a pattern of criminal activity. Additionally, the ID placed weight on the wiretap process requirements of identifying the speaker to obtain authorization, and limited the weight it placed on events, such as the arson incident, where the Applicant could not be sufficiently identified.
[63] The ID is entitled to rely on evidence it considers credible or trustworthy. In my view, the ID undertook a reasonable and independent assessment of the evidence it relied on in finding reasonable grounds to believe the Applicant is a person described under IRPA section 37(1)(a).
VII. Conclusion
[64] This application for judicial review is dismissed. The Applicant has not demonstrated a reviewable error in the ID’s assessment of the credibility and reliability of evidence.
[65] The parties do not propose a question for certification and I agree that none arises.
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