Docket: IMM-4841-15
Citation:
2016 FC 760
Ottawa, Ontario, July 6, 2016
PRESENT: The
Honourable Mr. Justice LeBlanc
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BETWEEN:
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Applicant
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and
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ANH LE TRAN
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review of a decision
of the Immigration Appeal Division of the Immigration and Refugee Board of
Canada (IAD), dated October 8, 2015, which dismissed the Minister’s appeal of
the Immigration Division’s (ID) finding that the Respondent is not inadmissible
on the ground of membership in organized crime pursuant to paragraph 37(1)(a)
of the Immigration and Refugee Protection Act, SC 2001, c 27 (the Act).
II.
Background
[2]
The Respondent is a 36 year old citizen of Vietnam. He became a permanent resident of Canada in 1994 when he was 15 years old.
[3]
Since 1999, the Respondent has been charged and
convicted of several offences including possession of an unregistered
restricted weapon in January 1999 and failure to comply with recognizance in
June 1999, May 2003 and July 2003.
[4]
Notably, in September 1999, the Respondent was
arrested after a long-term investigation into the “Trang
Gang” led by the Royal Canadian Mounted Police (RCMP) and called “Project Kachou”. Charges laid against the Respondent
in relation to this arrest were eventually stayed.
[5]
On August 19, 2011, the Respondent was convicted
of production and possession of a controlled substance for the purpose of
trafficking contrary to subsections 5(2) and 7(1) of the Controlled Drugs
and Substances Act, SC 1996, c 19 because of his involvement in a marijuana
grow operation. As a result of this conviction, the Respondent was sentenced to
a 12 month conditional sentence.
[6]
On November 16, 2012, a Canada Border Services
Agency (CBSA) Officer reported the Respondent inadmissible on the ground of
serious criminality pursuant to paragraph 36(1)(a) of the Act due to the 2011
conviction of production and possession of a controlled substance.
[7]
The CBSA also reported the Respondent for
inadmissibility based on membership in organized crime pursuant to paragraph 37(1)(a)
of the Act. In this respect, the CBSA alleged that the Respondent was a member
of the Trang Gang in Edmonton. The CBSA alleged that this gang was engaged in
criminal activity, namely, the traffic of narcotics.
[8]
On February 5, 2014, the ID found the
Respondent inadmissible pursuant to paragraph 36(1)(a) of the Act and issued a
deportation order. However, the ID found that the Respondent was not a person
described in paragraph 37(1)(a) of the Act.
[9]
On appeal, the IAD upheld the ID’s finding that
the Respondent was not a person described in paragraph 37(1)(a) of the Act.
[10]
The IAD found that on the whole of the evidence
before it, there was insufficient credible and trustworthy evidence to provide
reasonable grounds to believe that the Respondent was a member of the Trang
Gang or that he engaged in activities part of such a pattern. The IAD found
that while the Respondent was one of the persons arrested in Project Kachou,
the charge laid against the Respondent in this regard was stayed.
[11]
Moreover, since much of the police information
about the gang had been purged or is no longer available, the Applicant’s
evidence was mostly based on the testimony of Inspector Brezinski from the Edmonton
Police. Mr. Brezinski testified that much of his knowledge of the Respondent’s
activities in relation to his alleged involvement with the Trang Gang came
largely through conversations with Corporal Willisko, the RCMP’s Project Kachou
coordinator, from reading intelligence reports and from speaking to police
officers who had obtained information from confidential sources.
[12]
The IAD gave little weight to the testimony
provided by Mr. Brezinski for the following reasons:
- Mr. Brezinski was
unable to explain on what facts he concluded that the Respondent was a
mid-level drug distributor for the Trang Gang;
- Mr. Brezinski’s
testimony regarding an intercepted conversation between the Respondent
and another person where the Respondent discussed AK47 and 357 firearms is
non-determinative since there is no transcript or summary of the
intercepted conversation. This prevented the IAD from determining whether
the conversation provided evidence that the Respondent was a member of an
organized gang;
- Mr. Brezinski’s
testimony that the Respondent was in phone contact with Binh Trang, a
second-tier leader of the Trang Gang, was given little weight since the
IAD was not provided with evidence of the calls, their frequency and what
was discussed;
- Mr. Brezinski’s
testimony that an apartment associated with the Respondent was searched
during the Project Kachou arrests was given little weight since no incriminating
evidence was found at the apartment; and
- Mr. Brezinski’s
testimony to the effect that the Respondent was a hit-man for the Trang
Gang was given little weight since this information was not included in his
“will-say” and only came out in
cross-examination. Moreover, no credible information was put forward to
demonstrate that the Respondent was a hit-man.
[13]
The IAD also gave little weight to the
Respondent’s conviction for possession of an unregistered restricted weapon in
1999. Since no information was provided on the particulars of the Respondent’s
conviction, the IAD was unable to determine whether the Respondent was carrying
the unregistered firearm as a member of a criminal organization or not. The IAD
also gave little weight to six other convictions against the Respondent for
offences having occurred between 1999 and 2003. Since no particulars
were provided, the IAD could not discern if these convictions were
evidence of the Respondent’s membership in a criminal organization. The IAD
also gave little weight to the Respondent’s arrest in July 2003. In this
instance, the Respondent was arrested while in a vehicle with someone who had
been a member of the Trang Gang. While he was charged with possession of a
restricted weapon and other related offences, the charges were eventually dismissed.
The IAD gave this evidence limited weight since the charges were dismissed and
since the events post-dated the demise of the Trang Gang by four years.
[14]
The IAD also found that the Applicant provided
little evidence that the Respondent’s dragon tattoo bears the distinctive
hallmarks of the tattoos worn by some members of the Trang Gang.
[15]
Regarding the allegation that the Respondent is
inadmissible for organizing a marijuana grow operation with his wife and
cousin, the IAD found that if paragraph 37(1)(a) of the Act were to be
interpreted in this way it “would cover virtually any
indictable offence committed by two or more parties”. The IAD found that
section 36 of the Act provides for the removal of people who have committed
indictable offences and that section 37 of the Act is intended to raise the bar
even further for those who are members of a criminal organization.
[16]
The Applicant submits that “reasonable grounds to believe” is a low threshold and
that the IAD failed to make any findings that Mr. Brezinski’s evidence was not
credible. Instead, the IAD applied too high an evidentiary burden and threshold
in expecting direct evidence in support of each of the allegations and
statements made by Mr. Brezinski and evidence relating to Mr. Tran’s criminal
activities. In this regard, the Applicant argues that the IAD erred by
failing to take into consideration the cumulative aspect of all of the evidence
to demonstrate a pattern of behaviour and indicia of membership in a criminal
organization.
[17]
The Respondent also appealed the ID’s paragraph
36(1)(a) inadmissibility finding and deportation order. However, that appeal
was held in abeyance by the IAD pending the outcome of the organized
criminality appeal.
III.
Issue and Standard of Review
[18]
The issue to be determined in this case is
whether the IAD committed a reviewable error as contemplated by subsection
18.1(4) of the Federal Courts Act, RSC, 1985 c F-7.
[19]
Since the question of whether there is
sufficient evidence to constitute “reasonable grounds
to believe” that a permanent resident is “a
member” of a criminal organization or engages “in
activity that is a part of such a pattern” is a question of mixed fact
and law, the applicable standard of review is that of reasonableness (Thanaratnam
v Canada (Minister of Citizenship and Immigration), 2005 FCA 122, at paras
26-27; Castelly v Canada (Minister of Citizenship and Immigration), 2008
FC 788, at paras 10-12, 329 FTR 311[Castelly]; Toussaint v Canada
(Public Safety and Emergency Preparedness), 2009 FC 688, at paras 21-22 [Toussaint]).
[20]
Findings made by the IAD in this respect are
therefore given a high level of deference and the Court will not intervene so
long as the decision falls within a “range of possible,
acceptable outcomes which are defensible in respect of the facts and law”
(Dunsmuir v New Brunswick, 2009 SCC 9, at para 47, [2008] 1 SCR
190).
IV.
Analysis
[21]
As is well-established, it is not necessary
under sections 33 and 37 of the Act to show that the person concerned is a
member of a criminal organization but rather that there are reasonable grounds
to believe that he or she is a member of such an organization or has engaged
in activity that is a part of such a pattern of criminal activity (Castelly,
at para 26; He v Canada (Minister of Public Safety and Emergency
Preparedness), 2010 FC 391, at paras 28-29, 367 FTR 28; Toussaint,
at para 38).
[22]
As noted by the Applicant, the “reasonable grounds to believe” standard of proof is a
low threshold to meet. It requires something more than mere suspicion, but less
than the standard applicable in civil matters of proof (Sivakumar v Canada
(Minister of Employment and Immigration), [1994] 1 FC 433 (CA), at p 445,
44 ACWS (3d) 563; Chiau v Canada (Minister of Citizenship and Immigration),
[2001] 2 FC 297 (CA), at para 60; Mugesera v Canada (Minister of Citizenship
and Immigration), 2005 SCC 40, at para 114, [2005] 2 S.C.R. 100 [Mugasera];
Moreno v Canada (Minister of Employment and Immigration), [1994] 1 FC
298 (CA), at p 311, 107 DLR (4th) 424). In Mugasera, the Supreme Court
of Canada stated that reasonable grounds will exist “where there is an objective basis for the belief which is
based on compelling and credible information” (at para 114; see also Sabour
v Canada (Minister of Citizenship and Immigration), 195 FTR 69, 100 ACWS
(3d) 642).
[23]
However, as I indicated previously, my role in
these proceedings is not to determine whether there are reasonable grounds to
believe that the Respondent was a member of a criminal organization
within the meaning of paragraph 37(1)(a) of the Act. It is rather to decide
whether the IAD’s finding that no such grounds exist in this case falls within a
range of possible acceptable outcomes.
[24]
It is not contested that most of the Applicant’s
evidence both before the ID and the IAD consisted of Mr. Brezinski’s
testimony. In my view, it was entirely open for the IAD to give this testimony
little weight. As indicated by the Respondent, Mr. Brezinski’s involvement with
Project Kachou was peripheral and brief. During the 3 week period between
August 30, 1999 when he commenced with the Gang Activity Suppression Team, and
September 25, 1999 when Mr. Tran was arrested and subsequently detained, Mr. Brezinski
had no contact or knowledge of Mr. Tran. He did not even participate in the
Project Kachou investigation, which ended on September 25, 1999, and had no
particular expertise on the Trang Gang.
[25]
Moreover, it was entirely open for the IAD to
find that Mr. Brezinski’s testimony was vague in that he could not provide any
particulars for most of the paragraph 37(1)(a) allegations against the
Respondent. Mr. Brezinski’s testimony itself was in large part
based on hearsay evidence. He was unable to explain on what facts he concluded
that the Respondent was a mid-level distributor for the Trang Gang. He was
unable to provide any particulars on the wiretapped conversation or any particulars
regarding the phone calls shared between the Respondent and Binh Trang, an
alleged member of the Trang Gang. Mr. Brezinski was also unable to provide any credible
evidence demonstrating that the Respondent was a hit-man for the Trang Gang.
[26]
Mr. Brezinski’s evidence was given in a context where
much of the police information about the Trang Gang had been purged and is no
longer available. In other words, there was not much to support Mr. Brezinski’s
testimony and some caution regarding its probative value could reasonably be
expected.
[27]
In sum, I find that the IAD completed a thorough
assessment of the evidence before it and reasonably found that the Applicant did
not establish reasonable grounds to believe that the Respondent was a
member of the Trang Gang or was engaged in activities that are part of such a
pattern. In my view, while the Applicant frames the issue in terms of a
misapplication of the evidentiary standard on the part of the IAD, the
Applicant is actually requesting the Court to reweigh the evidence and
substitute its own findings to those of the IAD. However, as is
well-established, this is not the function of this Court (Kuar v Canada (Minister of Citizenship and Immigration), 2005 FC 1491, at para 20; Thavarathinam v Canada (Minister of Citizenship and Immigration), 2013 FC 1469, at para 10, 127 ACWS (3d)
967).
[28]
With respect to the IAD’s finding regarding the
Respondent’s marijuana grow operation, I am also of the opinion that the IAD
reasonably found that the commission of this offence does not constitute
membership in a criminal organization within the meaning of paragraph 37(1)(a)
of the Act. The persons involved in the grow operation were the Respondent, his
wife and his wife’s cousin.
[29]
The IAD found in this respect that if the
Respondent were to fall under the ambit of paragraph 37(1)(a) of the Act for the
marijuana grow operation offences, this provision would cover “virtually any indictable offence committed by two or more
parties” and that this interpretation of paragraph 37(1)(a) would be
inconsistent with the object of the Act and intention of Parliament, which
already provides for the removal of persons who have committed indictable
offences at section 36 of the Act.
[30]
This interpretation of paragraph 37(1)(a), a
provision in the IAD’s home statute, seems entirely reasonable in that it falls
within a arrange of acceptable outcomes (see Alberta (Information and
Privacy Commissioner) v Alberta Teachers' Association, 2011 SCC 61, at para
34, [2011] 3 S.C.R. 654; Public Service Alliance of Canada v Canadian Federal
Pilots Association and Attorney General of Canada, 2009 FCA 223, at para 36,
50).
[31]
I see no reason to interfere with the IAD’s
decision. As a result, the Applicant’s judicial review application is
dismissed. No question of general
importance has been proposed by the parties. None will be certified.
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