Date: 20100413
Docket: IMM-3823-09
Citation: 2010 FC 391
Ottawa, Ontario, April 13, 2010
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
QUN
ZHU HE
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of the
Immigration Division of the Immigration and Refugee Board of Canada dated June
10, 2009 wherein it was found that the applicant was a person described under
paragraph 37(1)(a) of the IRPA.
[2]
As
such, the applicant was issued a deportation order pursuant to paragraph 45(d)
of the Act and paragraph 229(1)(e) of the Regulations.
[3]
The
applicant waived her right to a Pre-Removal Risk Assessment and was deported to
China in November
2009. However, both parties have requested that the Court issue a decision in
this matter. There is authority, at subsection 52(2) of the IRPA, for the
proposition that the applicant would be entitled to return at the Minister's
expense if the inadmissibility decision was overturned. In that sense, there
continues to be a live controversy between the parties.
[4]
These
are my reasons for dismissing the application.
Background
[5]
Ms.
He, the applicant, is a citizen of China. She arrived in Canada on or about
January 15, 2008, and soon thereafter claimed refugee protection. Her refugee
claim is currently suspended pending the outcome of this proceeding.
[6]
On
September 11, 2008, the applicant and others were arrested and charged with a
number of criminal offences in connection with their involvement in an illegal
marijuana grow operation at 366 Pine Valley Drive in Kitchener, Ontario.
[7]
The
applicant was charged with 7 Controlled Drug Substance Act (CDSA) and Criminal
Code (CC) offences relating to the production, possession and trafficking
of over 3 kg of cannabis marijuana, in addition to conspiracy to commit an
indictable offence, theft of electricity or gas, and obstruction/resisting
peace officer.
[8]
On
March 6, 2009, the applicant plead guilty and was convicted of the offences of:
production of marijuana, possession of marijuana for the purpose of trafficking,
and theft of electricity. The sentencing court, taking into consideration177
days of pre-sentence custody, sentenced her to an additional 3 months
imprisonment.
[9]
On
March 27, 2009, the Minister issued a Report under section 44 of the IRPA that
the applicant was inadmissible to Canada on the grounds of organized
criminality under paragraph 37(1)(a). The Report was referred to the
Immigration Division for an Admissibility Hearing. Ms. He’s pending refugee
claim was suspended in light of the Report.
[10]
The
applicant was held on an immigration warrant as of May 6, 2009.
[11]
The
Immigration Division proceeded with the Admissibility Hearing on five dates (April
14, 30, May 8, 20 and 27). On June 10, 2009, the Immigration Division issued
its decision, finding that the applicant was a person described by paragraph
37(1)(a) of the IRPA and thus inadmissible to Canada.
[12]
Ms.
He’s detention reviews occurred on May 8, 14, June 11 and July 9, 2009. The
applicant was denied release and was held at the Vanier Centre for Women on an
immigration hold as of August 28, 2009.
[13]
Having
waived her right to a Pre-Removal Risk Assessment, the applicant was deported
to China in November
2009.
Decision Under Review
[14]
The
member noted at the beginning of his reasons that paragraphs 173(c) and (d) of
the IRPA state that “the Immigration Division, in any proceeding before it, (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.”
[15]
Having
considered the evidence at this admissibility hearing, along with the
submissions by the parties and the documents contained in Exhibits #1 – 5, the
member found that the applicant is a person described in paragraph 37(1)(a) of
the IRPA.
[16]
The
member determined that the documentary evidence contained in Exhibit #1, in
conjunction with the totality of the testimony provided by the applicant,
particularly regarding what she did in the house and the activities of the
other persons that she identified who worked with her, established that she was
engaged in activity that was part of a pattern of criminal activity planned and
organized by a number of persons acting together for the benefit of the
continued success of this marijuana growth operation.
[17]
The
member was satisfied that the activities of the applicant and her co-workers
constituted the furtherance of the commission of an offence punishable under an
Act of Parliament by way of indictment given that the applicant and her
co-workers were all charged with indictable offences.
[18]
The
member also found the applicant’s defence that she did not know what the plants
were and that her actions were contributing to criminal activity were not
credible in light of the convictions. The member did not question that the
applicant’s role was a small one relative to that of the others that were
involved in the set up and maintenance of the operation. However, it was found
that the applicant did have a role and that role assisted in the furtherance of
this criminal activity.
[19]
Although
the evidence did not establish a clearly identifiable group in the conventional
sense, the member found that it did establish, on a balance of probabilities, that
there was a loosely formed group that acted together under the leadership and
instruction of a person by the name of “Uncle.” Therefore, the member was
satisfied that Ms. He acted as part of a criminal organization.
[20]
The
member concluded that there are reasonable grounds to believe that Ms. He is a
person as described in paragraph 37(1)(a) of the IRPA.
[21]
Accordingly,
the member issued a Deportation Order against the applicant in accordance with
paragraph 45(d) of the Act and 229(1)(e) of the Regulations.
Issues
[22]
The
sole issue is whether the Immigration Division member erred when she found that
the applicant is a person described in paragraph 37(1)(a) of the IRPA – namely
that she is a member of a criminal organization.
Analysis
[23]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008]
S.C.J. No. 9, the Supreme Court of Canada abandoned the patent
unreasonableness standard leaving only two standards of review, correctness and
reasonableness. The Supreme Court also held that a standard of review analysis
need not be conducted in every instance. Where the standard of review applicable
to the particular question before the court is well-settled by past
jurisprudence, the reviewing court may adopt that standard of review.
[24]
As
Justice Phelan found in Tang v. Canada (Minister of
Citizenship and Immigration), 2009 FC 292, [2009] F.C.J. No. 671, at
para. 17, I am also of the view that the determination of membership in a
criminal organization is a fact-driven exercise and as such the standard of
review is reasonableness:
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. (…)
[25]
The
Immigration Division’s analysis is central to its role as a trier of fact. As
such, the Division’s findings are to be given significant deference by the
reviewing Court. The Division’s findings should stand unless its reasoning
process was flawed and the resulting decision falls outside the range of
possible, acceptable outcomes which are defensible in respect of the facts and
the law: Dunsmuir, above, at para. 47.
[26]
In
a case such as this one, there might be more than one reasonable outcome.
However, as long as the process adopted by the Immigration Division and its
outcome fits comfortably with the principles of justification, transparency and
intelligibility, it is not open to a reviewing court to substitute its own view
of a preferable outcome: Canada (Citizenship and Immigration) v. Khosa,
2009 SCC 12, [2009] S.C.J. No. 12, at para. 59.
[27]
No
deference is due if the Court determines that an administrative decision-maker
has failed to adhere to the principles of procedural fairness: Canadian
Union of Public Employees v. Ontario (Minister of Labour), [2003] 1
S.C.R. 539, [2003] S.C.J. No. 28, at para. 100. Such matters continue to fall
within the supervising function of the Court on judicial review: Dunsmuir,
above, at paras. 129 and 151. Accordingly, the issue of procedural fairness in
this case will be subject to the standard of correctness: Tang, above,
at para. 18.
[28]
In
this case, I am of the view that the member’s finding that there were
reasonable grounds to believe that Ms. He was a member of an organization
involved in criminal activity was reasonable and supported by the evidence: Castelly
v. Canada (Minister of Citizenship and Immigration), 2008 FC 788, [2008]
F.C.J. No. 999, at para. 27.
[29]
As
Justice Martineau noted in Castelly, above, at para. 26, I agree that
the case law has clearly established that it is not necessary to demonstrate
that the person concerned is a member of an organization, but rather that there
are reasonable grounds to believe that he or she is a member: paragraph 37(1)(a)
and section 33 of the IRPA.
[30]
I
agree with the respondent that based on the “unrestricted and broad”
interpretation to be given to the terms “member” and “organization”, and given
the evidence that was before the Immigration Division, it was reasonably open
to the member to find that the applicant was, as described at paragraph
37(1)(a) of the IRPA, a member of an organization that is believed on
reasonable grounds to engage in a pattern of organized criminal activity: Sittampalam
v. Canada (Minister of Citizenship and Immigration), 2006 FCA 326, [2006]
F.C.J. No. 1512, at para. 55; Poshteh v. Canada (Minister of
Citizenship and Immigration), 2005 FCA 85, [2005] F.C.J. No. 381, at
para. 32.
[31]
I
emphasize that in Sittampalam, above, the Federal Court of Appeal
determined that the Board must be given flexibility to evaluate all of the
evidence in the light of the legislative purpose of IRPA to prioritize security
in deciding whether a group is an organization for the purpose of paragraph
37(1)(a): Sittampalam, above, at para. 55.
[32]
I
am somewhat sympathetic to the applicant’s argument that to find that the
applicant was a member of a criminal organization was overreaching, given that
there were not many of the normal indicia of such status present in this
case. However, I am unable to overturn the member’s decision on that basis as I
accept that there was sufficient “reasonable grounds to believe” that a
criminal organization existed and the applicant was a member of it on the
evidence before the tribunal.
[33]
Accordingly,
I am of the view that it was not clearly irrational for the member to conclude
that there were reasonable grounds to believe that Ms. He was engaging in
activity that was part of a
pattern of organized criminal activity: Thanaratnam
v. Canada (Minister of
Citizenship and Immigration), 2005 FCA 122, [2005] F.C.J. No. 587, at
para. 33.
[34]
However,
I take the opportunity to note, as obiter, that I do not think it was
necessary in this case for the member to rely on paragraph 37(1)(a) of the
IRPA, “organized criminality”. In my view, paragraph 36(2)(a) of the IRPA, respecting
“criminality”, would have been the more appropriate route to take as the
applicant was convicted of an indictable offence. Paragraph 36(2)(a) also
provides inadmissibility grounds, similar to paragraph 37(1)(a), and would not have
required the member to search for the indicia to establish that the
applicant was a member of a criminal organization.
[35]
As
the Federal Court of Appeal stated in Sittampalam, above, at para. 37,
“paragraph 37(1)(a) appears to be an attempt to tackle organized crime, in
recognition of the fact that non-citizen members of criminal organizations are
as grave a threat as individuals who are convicted of serious criminal
offences. It enables deportation of members of criminal organizations who avoid
convictions as individuals but may nevertheless be dangerous.”
[36]
This
case does not fall within the circumstances described by the Court of Appeal.
It does not appear to have been necessary to treat this case as a matter of
organized criminality simply because there was a group of individuals involved
all of whom would be liable, under the partyship provisions of the Criminal
Code, for the commission of the criminal acts. It is doubtful that Parliament
intended paragraph 37(1)(a) to be used for this purpose. To do so is to risk
trivializing or banalizing the significance of the concept of “organized
crime”.
[37]
The
member's errors in finding that the applicant gave a false identity, that a
total of four people were involved in the house and that there was improper
speculation on the applicant’s continued involvement are not, in my view, material
or an indication that the member has not adequately assessed the evidence: Jouzichin
v. Canada (Minister of
Citizenship and Immigration), (1994), 52 A.C.W.S. (3d) 157, [1994]
F.C.J. No. 1886, at para. 4.
[38]
I
am unable to find that there was a breach of procedural fairness in this case. I
note that there were five sittings in this matter in which three adjournments
permitted the applicant to retain counsel and to prepare for the case, that the
applicant was detained and that the Immigration Division has an obligation
under IRPA to conduct hearings expeditiously. I am not persuaded that, in all
of the circumstances, the denial of the adjournment requested by the applicant in
the course of her examination was prejudicial to her. Counsel was unable to
explain to my satisfaction how the adjournment would have made any difference
in the conduct or outcome of the hearing. It would not have assisted her
client, for example, for counsel to have determined whether the applicant was
involved in organized criminal activity in China prior to coming to Canada. The case
was about her actions in the few months since she came here and claimed refugee
status.
[39]
Regarding
the applicant’s argument that the additional disclosure received on May 21st,
2009 was late and constituted a breach of fairness, I am unable to find that
disclosure received six days prior to the hearing of May 27th amounts to
unfairness. Pursuant to subsection 162(2) of the IRPA, the Immigration Division
must handle proceedings before it expeditiously. Also, pursuant to section 173
of the IRPA, the Immigration Division is not bound by any legal or technical
rules of evidence. Lastly, pursuant to rule 26 of the Immigration Division
Rules, I find that the disclosure of
the additional documents to the applicant
satisfied the requirement of “at least five days before the hearing.”
[40]
I
agree with the respondent that as the applicant’s counsel had an extra seven
days (after the fourth sitting on May 20th and before the fifth sitting on May
27th) to obtain documents, to prepare the cross-examination and to make
submissions, the applicant was provided with sufficient additional time to
prepare and respond, and as such there is no breach of fairness: Jouzichin,
above, at para. 3.
[41]
Recognizing
that the Immigration Division is entitled to control its own procedure and that
it is mandated to assess claims as expeditiously as possible, this Court of
review is unable to criticize the member in her decision to allow the
disclosure of the additional document or to deny a request for a fourth
adjournment, as it is not clear that in the circumstances of this case that a
breach of natural justice or fairness has resulted from the decision: Vairamuthu
v. Canada (Minister of Employment and Immigration) (F.C.A.), (1993), 161
N.R. 131, [1993] F.C.J. No. 772, at para. 2.
[42]
The
member’s finding that the applicant was a person described under paragraph
37(1)(a) of the IRPA should stand as I accept that there were reasonable
grounds to believe that Ms. He was engaging in activity that was part of a
pattern of organized criminal activity. The resulting decision in this case falls
within the range of possible, acceptable outcomes which are defensible in
respect of the facts and the law: Dunsmuir, above, at para. 47.
[43]
As
I have found that the outcome in this case is reasonable, it is not open to
this Court to intervene: Khosa, above, at para. 59.
[44]
Accordingly,
this application must be dismissed.
[45]
Counsel
for the applicant proposed that I certify the same question as in Castelly,
above, at para. 43:
“For the purposes of paragraph 37(1)(a) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, what is the general definition of
"member", and what test must one apply to determine whether a person
is or was a "member" of an "organization" described in that
paragraph?”
[46]
Counsel
for the applicant also proposed that I certify the following question regarding
the scope of membership:
“If an organization is found to exist
under paragraph 37(1)(a) of the IRPA, is membership to include any and all
persons who had involvement with the said organization regardless of degree of
significance?”
[47]
Counsel
for the respondent is opposed to the proposed questions of the applicant but
would want to make further submissions on remedy and the questions if I was to
decide to grant the application. That will not be the case.
[48]
In Zazai
v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 89, [2004] F.C.J. No. 368, the
threshold for certification was articulated by the Federal Court of Appeal as:
"is there a serious question of general importance which would be dispositive
of an appeal" (paragraph 11).
[49]
In Kunkel
v. Canada (Minister of
Citizenship and Immigration), 2009 FCA 347, [2009] F.C.J. No. 170, at para.
8, citing its 2006 decision
in Boni v. Canada (Minister of Citizenship and
Immigration), 2006 FCA
68, [2006] F.C.J. No. 275, at para.10, the Federal Court of Appeal determined
that a certified question must lend itself to a generic approach leading to an
answer of general application. That is, the question must transcend the
particular context in which it arose.
[50]
In Boni,
above, the Federal Court of Appeal stated that “it would not be appropriate for
the Court to answer the certified question because the answer would not do
anything for the outcome of the case (Canada (Minister of Citizenship and Immigration) v.
Liyanagamage, [1994] F.C.J. No. 1637, (1994) 176 N.R. 4).”
[51]
I am of the view, in
light of the particular facts in this case, that the certification of the
questions proposed by the applicant would not meet the test articulated in Kunkel
and Boni and would not be dispositive of an appeal. Such questions would not lend
themselves to a generic approach leading to an answer of general application.
[52]
I
am not convinced that either question proposed by the applicant should be
certified.
JUDGMENT
IT IS THE JUDGEMENT OF
THIS COURT that the application is dismissed. There are no questions
to certify.
“Richard
G. Mosley”
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