Date: 20100420
Docket: IMM-4511-09
Citation: 2010 FC 428
Ottawa, Ontario, April 20, 2010
PRESENT: The Honourable Mr. Justice Shore
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. Introductory Background
[1]
In
order to arrive at a decision, the specific jurisprudential background to this
case must be read to understand in what context the one issue before the Court
exists.
[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.
(As told by Justice Judith Snider in Nguyen-Tran
v. Canada (Minister of
Citizenship and Immigration), 2010 FC 93, [2010] F.C.J. No. 106 (QL)).
[2]
In
the case of Sittampalam v. Canada (Minister of Citizenship and Immigration),
2006 FCA 326, [2007] 3 F.C.R. 198, decided by the Federal Court of Appeal and
penned by Justice Allen M. Linden, key factors in regard to inadmissibility in
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) are
considered:
[15] This requires the Court to assess the proper
interpretation of the language in paragraph 37(1)(a) of the IRPA.
The interpretation of statutes is generally considered to be a question of law;
therefore, the standard of review to be applied on this appeal of the case is
correctness: Housen v. Nikolaisen, [2002] 2 S.C.R. 235 at para.
8.
[16] The Federal Court Judge held that paragraph 37(1)(a)
includes a person who was a member of a criminal organization before the
inadmissibility report. For the following reasons, I agree.
[17] First, this meaning is consistent with the wording of
the former Act. Paragraph 19(1)(c.2) of the former Act specifically referred to
those who "are or were members ". It read:
|
Inadmissible
persons
19. (1) No person shall
be granted admission who is a member of any of the following classes:
[…]
(c.2) persons who there are reasonable grounds to believe are or
were members of an organization that there are reasonable grounds to believe
is or was 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 any offence under the Criminal Code or Controlled
Drugs and Substances Act that may be punishable by way of indictment or
in the commission outside Canada of an act or omission that, if committed in
Canada, would constitute such an offence, except persons who have satisfied
the Minister that their admission would not be detrimental to the national
interest;
|
Personnes non admissibles
19. (1) Les personnes suivantes appartiennent à une catégorie
non admissible:
[…]
(c.2) celles 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 au Code criminel ou à la Loi réglementant certaines
drogues et autres substances qui peut être punissable par mise en
accusation ou a commis à l’étranger un fait – acte ou omission – qui, s’il
avait été commis au Canada, constituerait une telle infraction, sauf si elles
convainquent le ministre que leur admission ne serait nullement préjudiciable
à l’intérêt national;
|
[18] One of Parliament’s objectives when enacting the IRPA was
to simplify the former Act. Section 33 does just that: it reduces the necessary
repetition of the phrases denoting past, present and future membership in the
former Act by establishing a "rule of interpretation" that permits a
decision-maker to consider past, present and future facts when making a determination
as to inadmissibility.
[19] If one were to interpret paragraph 37(1)(a) as
including only present membership in an organization, it would, in effect,
render section 33 redundant. The Board said (at page 49), and I concur, that
consideration of evidence of a person’s history and future plans would be
relevant to the question of whether a person is currently a member of an
organization described in section 37, even without codification to such effect
in legislation.
[20] In my view, Parliament must have intended section 33 to
have some meaning. The language of section 33 is clear that a present finding
of inadmissibility, which is a legal determination, may be based on a
conclusion of fact as to an individual’s past membership in an organization. In
other words, the appellant’s past membership in the A.K. Kannan gang, a factual
determination, can be the basis for a legal inadmissibility finding in the
present.
[21] Second, this interpretation is consistent with the
purpose of the inadmissibly provisions and the IRPA as a whole. The
inadmissibility provisions have, as one of their objectives, the protection of
the safety of Canadian society. They facilitate the
removal of permanent residents who constitute a risk to Canadian society on the
basis of their conduct, whether it be criminality, organized criminality, human
or international rights violations, or terrorism. If one were to
interpret "being a member" as including only present membership in an
organization described in paragraph 37(1)(a), this would have a contrary
effect, by narrowing the scope of persons who are declared inadmissible,
thereby increasing the potential risk to Canadian safety.
[22] Third, if the Court were to interpret "being a
member" as including only current members, it would lead to absurd results
that could not have be intended by Parliament. This would mean that sections 34
(terrorism/security), 35 (crimes against humanity), and 37 (organized
criminality) of the IRPA, all of which use the wording "being a
member" or "being a prescribed senior official", would only
refer to current circumstances.
II. Judicial Procedure
[3]
This
is an application for judicial review of a September 1, 2009 decision of the
Immigration Division of the Immigration and Refugee Board (ID) finding the
Applicant, Mr. Nghia Trong Nguyen-Tran, inadmissible due to organized
criminality pursuant to paragraph 37(1)(a) of the IRPA.
III. Facts
[4]
The
Applicant has a long history with Canadian law enforcement and immigration
officials as a result of his alleged links to the Fresh Killers gang (FK) in Calgary, Alberta. On April
20, 2004, a deportation order was issued to the Applicant on the basis of his
criminal record. On January 28, 2010, the Federal Court dismissed a judicial
review of the deportation order in decision 2010 FC 93, above.
[5]
On
March 2, 2010 the Applicant appeared for removal from Canada; he was confirmed
as arriving in Vietnam on March 4, 2010.
IV. Decision under Review
[6]
The
ID took as evidence of the FK being a criminal organization the fact that they
are engaged in a violent rivalry with the Fresh off the Boat (FOB) gang. Sgt. Eric
G. Walker of the Calgary Police Service, who was recognized as an expert
witness by the ID, estimated that there had been 21 homicides in the City of Calgary related to
this rivalry since 2001. The ID also noted that the Applicant was the intended
target of a shooting in February 2005 and that this shooting was linked, by the
testimony of the Applicant’s girlfriend, to a longstanding grudge (Applicant’s
Record (AR) at p. 10). It was also relevant that the Calgary police have
recently given the Applicant a “duty to warn”. These warnings are issued when
the Calgary police
receive credible information to the effect that a person’s life is at risk. The
ID cited evidence showing that many of the Applicant’s friends have been
murdered as a result of the rivalry with the FOB (AR at p. 11).
[7]
The
ID laid out several criteria of criminal organizations and applied them to the
Applicant’s case. The ID noted: the Applicant associates with members of the FK;
the police have linked the Applicant to the FK since August 2002; the Applicant
was convicted and has subsequently been charged with selling narcotics in the
manner preferred by the FK, dial-a-dope schemes; and, he has been the target of
gang violence (AR at pp. 17-18). The ID concluded that the cumulative effect of
the evidence is such that there are reasonable grounds to believe that the
Applicant is or was a member of the FK (AR at p. 19).
V. Issue
[8]
Is
this judicial review application moot?
VI. Analysis
[9]
The
Applicant’s deportation makes the current application moot. Even if this Court
were to quash the current decision it would make no difference to the
Applicant, as he has already been deported due to serious criminality. Section
229 of the Immigration and Refugee Protection Regulations, SOR/2002-227,
provides that a deportation order is issued for inadmissibility under both
sections 36 and 37. Regardless of the current finding regarding the section 37
inadmissibility, the Applicant cannot return to Canada without ministerial
authorization.
[10]
The
Court determines that the current application is moot as per the test in the
case of Borowski v. Canada (Attorney General), [1989] 1
S.C.R. 342, wherein the Supreme Court of Canada outlined the doctrine of
mootness:
The doctrine of mootness is
an aspect of a general policy or practice that a court may decline to decide a
case which raises merely a hypothetical or abstract question. The general
principle applies when the decision of the court will not have the effect of
resolving some controversy which affects or may affect the rights of the
parties. If the decision of the court will have no practical effect on
such rights, the court will decline to decide the case. This essential
ingredient must be present not only when the action or proceeding is commenced
but at the time when the court is called upon to reach a decision. Accordingly
if, subsequent to the initiation of the action or proceeding, events occur
which affect the relationship of the parties so that no present live
controversy exists which affects the rights of the parties, the case is said to
be moot. The general policy or practice is enforced in moot cases unless the
court exercises its discretion to depart from its policy or practice. The
relevant factors relating to the exercise of the court's discretion are
discussed hereinafter.
The approach in recent cases
involves a two-step analysis. First it is necessary to determine whether the
required tangible and concrete dispute has disappeared and the issues have
become academic. Second, if the response to the first question is
affirmative, it is necessary to decide if the court should exercise its
discretion to hear the case. The cases do not always make it clear whether the
term "moot" applies to cases that do not present a concrete
controversy or whether the term applies only to such of those cases as the
court declines to hear. In the interest of clarity, I consider that a case
is moot if it fails to meet the "live controversy" test. A court
may nonetheless elect to address a moot issue if the circumstances warrant.
(Emphasis added).
VII. Conclusion
[11]
It
is clear from the circumstances of the Applicant’s deportation that a decision
of this Court will not have any practical effect on the rights of Mr.
Nguyen-Tran. The Applicant has been deported and may not return without special
ministerial authorization. To send this decision back for redetermination would
be without consequence due to the specific background outlined above.
[12]
For
all of the above reasons, the application for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS that
1.
The
application for judicial review be dismissed;
2.
No
serious question of general importance be certified.
“Michel M.J. Shore”
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