Date: 19980731
Docket: IMM-2842-97
BETWEEN:
CHUN WAI LAM,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
REED, J.
[1] This is an application for judicial review of the decision and order of William A. Sheppit, the Minister's Delegate of the Case Management Branch, Department of Citizenship and Immigration (the "Tribunal"), dated June 23, 1997, wherein the Minister's delegate formed the opinion that the applicant constituted a danger to the public in Canada pursuant to s. 77(3.01)(b) of the Immigration Act (the "Act").
[2] The applicant, Chun Wai Lam, is a 40 year old Hong Kong citizen, sponsored from within Canada by his wife, a Canadian citizen. The applicant has two Canadian born children. His inland application for permanent residence was provisionally approved. He disclosed in his application that he had been convicted of two offences in Hong Kong, one in 1974, one in 1988.
[3] The first conviction, in February 1974, was for membership in a triad society, the "Wo Hop To". He received a fine of HK$250.00 (approximately $50.00 Cdn) and was placed on probation for 12 months. At the time of this conviction, the applicant was 17 years of age and did not obtain any legal advice before pleading guilty. The applicant's evidence was that he had been rounded up with about 100 others and subsequently coerced by the police into pleading guilty. The coercion took the form of physical abuse and he was led to believe that he was pleading guilty to a minor matter. He maintains that he was not, at the time, and never has been a member of a triad society. The only material available relating to this event is the record of the conviction; the rest of the file has been destroyed.
[4] The second conviction, also in Hong Kong, was in 1988, for blackmail. The applicant was fined HK$2,000.00 (approximately $400.00 Cdn) and given a suspended sentence (9 months suspended for two years). This conviction arose out of events surrounding an altercation with a film crew outside a store in the village where the applicant lived. The transcript of the trial reveals that the applicant and three friends had been drinking beer outside the store, one of them was the son of the store owner. There was discontent on the part of a number of members of the village because the film crew kept blocking a foot path, preventing access to it. There were also electrical wires lying around on the ground. The applicant together with others protested and there was a request for the payment of money made to the director. There was pushing and shoving and altercation with the film crew. The director complained to the police that a group of villagers was interfering with his filming. There is nothing to indicate that the applicant's offence was in any way related to triad activities.
[5] The applicant's application for landing was refused on January 5, 1994 on the ground that he was inadmissible as a result of these criminal convictions. The applicant's wife, filed an appeal with the Immigration Appeal Division ("Appeal Division") from this decision. She obtained an extension of time to do so from the Immigration Appeal Division on December 22, 1994. This appeal was first postponed to June 25, 1997 and then January 22, 1998.
[6] Prior to the appeal being filed, the applicant had been brought to an inquiry and on November 3, 1994, had been ordered deported from Canada because he was found by the adjudicator to be a person described in paragraph 27(2)(a) by subparagraph 19(1)(c.1)(i) and paragraph 27(2)(a) subparagraph 19(1)(c.2) of the Act. In coming to this conclusion, the adjudicator determined that the conviction for blackmail in Hong Kong was equivalent to extortion under subparagraph 346(1) of the Criminal Code. She also held that there were reasonable grounds to believe that the applicant was a member of a criminal organization because of his criminal conviction in 1974.
[7] By letter dated March 25, 1997, the local CIC Office advised Mrs. Lam of the possible issuance of a Minister's opinion pursuant to s. 77(3.01)(b) of the Act which would take away her right to appeal to the Appeal Division. Attached to the letter was the evidence to be considered by the Minister's delegate in forming an opinion as to whether or not the applicant constituted a danger to the public in Canada. Submissions were made in response. These included extensive representations from friends and family, two psychological assessments from Hong Kong psychiatrists, a letter of support from Mr. and Mrs. Lam's parish priest in Vancouver, and the transcript of the trial leading to the 1988 conviction.
[8] As noted, on June 23, 1997, the Minister's delegate issued an opinion that the applicant constituted a danger to the public in Canada. As is usual in these cases no reasons were given for that decision. The decision followed the recommendation set out in the Ministerial Opinion Report, dated May 7, 1997, to which approval was given by a manager on May 8, 1997, and which was followed by a Reviewing Officer Report dated June 20, 1997.
[9] The Ministerial Opinion Report refers to the 1974 and 1988 convictions. It refers to the adjudicator's decision of November 3, 1994, quoting therefrom:
| "'... You were duly convicted in 1974 under the justice system of Hong Kong of a particular unlawful activity, namely membership in a triad. The Hong Kong courts must be presumed knowledgeable and competent to deal with such matters. There is no evidence before me to show that it would have been impossible for you to obtain a fair trial.'". |
[10] While the report states that Mr. Lam asserted that the 1974 conviction was coerced, it does not mention the details of his explanation. As noted, he alleged that the police physically intimidated him. There was never an allegation that he could not get a fair trial. Indeed, since he pled guilty it was unlikely that there was a trial. Thus, the report quotes facts that were never in issue, ignores others, and does not mention that the Hong Kong file relating to this offence was not available because it had been destroyed.
[11] The report refers to the evidence that had been before the adjudicator with respect to the organized criminal activities in which triads engage. It refers to the evidence of Mr. Bosco Lee:
| "In giving oral testimony at Mr. Lam's Immigration inquiry, Mr. Bosco Lee from the Coordinated Law Enforcement Unit stated 'Yes, Wo Hop To have been recognized as one of the triad societies in Hong Kong.' Their criminal activities include '... heroin trafficking, prostitution, illegal gambling, extortion, gang fights, loan sharking and other street level kind of crimes.'". |
[12] The report does not mention Mr. Lee's evidence that he did not know of Mr. Lam personally as being a triad member and that, in Mr. Lee's opinion, the Wo Hop To did not operate in the Vancouver area.
[13] The report describes in general terms the obtaining of membership in a triad and the nefarious activities of those organizations:
| "With respect to membership in a triad society, Detective Chu stated '... Once they pledge allegiance to it, it's no different than joining a mason group or freemason group or some sort of organization in which you pledge your total commitment to that organization. And usually within the 36 oaths, if you should violate that, it could result in death or bodily harm to you or your family. |
| When questioned about Detective Chu's experience in Vancouver with Asian crimes and triad and if triad's pose a danger to the Canadian society, he replied the following '... I'd take it a little further, your Honour, that triads pose a problem to society all over the world. They are an international presence; their history dates back many centuries, their formation has turned to criminal endeavours or enterprises'. |
| In a Time Magazine article called 'Global Gangsters' dated 01 February 1993, the author stated the following 'Hong Kong triads prey on businessmen, so, if their targets are moving overseas, they will follow their prey, especially to Canada.". |
[14] While the report refers to triad activities generally, there is no linkage of the application to the Wo Hop To, apart from the 1974 conviction, and there is virtually no evidence that the Wo Hop To operates in Vancouver.
[15] The report refers to a Triad Renunciation scheme that was operated by the Hong Kong government between December 8, 1988 and April 1, 1991. It notes that Mr. Lam had not renounced his membership at that time. The report does not note that most of the individuals who took advantage of this renunciation scheme, at the time of the renunciations, were incarcerated in jails in Hong Kong. It does not note that, if Mr. Lam's assertion that he had never been a member of a triad is true, there would have been no reason for him to avail himself of the renunciation scheme. Also, the renunciation scheme had ended before Mr. Lam knew that he was running into problems with Canadian immigration as a result of the 1974 conviction.
[16] The report then talks of the activities of the Wo Hop To in the San Francisco Bay area, the struggle for power between it and another triad in that area, and the criminal activities in which the triad traditionally becomes involved. It talks of criminal activities in the Vancouver area by triads generally and concludes by saying that:
| "Mr. Lam is a known member of a triad society, the Wo Hop To and his membership is a life long commitment. Any person being a member of any triad society can be called upon at any time to participate in criminal activity anywhere in the world. If such crimes are committed, then any person involved in such activities, being a member of a triad society, should be a danger to the Canadian public.". |
The report concludes:
| "In the submission provided by legal counsel, there is no evidence to suggest that Mr. Lam is not a member of a triad society, specifically; the Wo Hop To. In addition, there is no evidence to disprove the criminal convictions against Mr. Lam. Evidence has been provided to support the notion that membership in a triad society is a life long commitment. Defaulting on any of the 36 oaths that were taken by members can result in serious injury or death for the member or his or her family." (underlining added). |
[17] It is not accurate to say there was "no evidence" that Mr. Lam was not a member of a triad society. His own evidence was that he was not. Also, he never tried to disprove the criminal convictions: the reference that there is no evidence disproving the criminal convictions makes it appear as though he attempted to do so.
[18] There is no mention in the Report of the circumstances surrounding the two offences. Indeed it would appear that the author and writer of the report simply did not read the transcript of the trial relating to the second offence. There is no mention of the very light sentences the applicant received on both occasions.
[19] Subsequent to the preparation of the report, a reviewing officer's report is prepared. This is dated June 20, 1997 and reads in part:
| "DANGER PROFILE |
| - 18.08.88 - Blackmail (Hong Kong) - HK$2000 fine, nine months imprisonment and two years suspended sentence. |
| - 04.02.74 - Membership in the Triad Society - bound over HK$200 for 12 |
| - according to information submitted by immigration officials, subject did not renounce his membership into the Wo Hop To Triad Society during and amnesty period (see the affidavit of Garry William Gordon CLEMENT). |
| REVIEWING OFFICER'S COMMENTS" |
| [attesting to the fact that all the documents being forwarded with the request for an Opinion have been provided to the applicant]. |
These documents together with the whole file were then sent to the Minister's delegate for decision, which decision, as noted, was rendered on June 23, 1997.
[20] Counsel for the applicant challenges the decision by the Minister's delegate on a number of grounds. First, he states that there was a breach of natural justice in not providing a copy of the Opinion Report and the Reviewing Officer's Report to the applicant before they were acted upon by the Minister's delegate so that the applicant could respond to it. This was especially unfair given the selective and one-sided presentation of the evidence put forward in them. Second, he argues that there were internal communications between the writer of the report and other immigration officers regarding whether or not an opinion from the Minister's delegate should be sought that should have been disclosed to the applicant. These indicate that the decision to seek an opinion was based, in part, on the officers' belief that the 1988 conviction was related to triad activities. Counsel argues that this should have been disclosed to the applicant to allow him to respond to that supposition. Thirdly, counsel argues that the Minister's decision was perverse. That it could only have been made by ignoring evidence and that the Opinion Report indicates that this was in fact what occurred.
[21] Counsel for the respondent argues that the Minister's delegate is entitled to adopt a policy of finding anyone who is a member of a triad to be a danger to the public in Canada. She argues that there need not be evidence that the individual is a physically violent person or that he has been convicted of serious criminal activity. She argues that these decisions are totally discretionary, as described by Mr. Justice Strayer in Williams v. Canada (Minister of Citizenship and Immigration) (1997), 212 N.R. 63 (F.C.A.), and that a reviewing court must assume that the Minister's delegate reviewed all the material on the file, and this would include the transcript of the trial that led to the 1988 conviction. She further argues that there is sufficient material on the record to support the decision that was made.
[22] I do not propose to make extensive reference to the jurisprudence. It is well known. Reviewing courts do not substitute their decisions for that of the Minister's delegate. The decision in question is highly discretionary, as explained by Mr. Justice Strayer. Decisions are to be set aside, however, when based on an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before the decision maker. In addition the jurisprudence is clear that in these cases convictions alone do not justify a danger opinion. There must be support for a finding that the individual constitutes a present or future danger. Also, I consider it to be the height of fantasy to assume that the Minister's delegate, in normal circumstances, goes beyond the Opinion Report when making a decision. I share the view of Mr. Justice Gibson expressed in Davis v. Canada (Minister of Employment and Immigration) [1997], F.C.J. No. 1621, that there can be no other reason for its preparation than to limit the degree to which the Minister's delegate finds it necessary to review the material in detail.
[23] In any event, in this case, in the absence of reasons, the decision on its face must be characterized as perverse. It will accordingly be set aside.
(Sgd.) "B. Reed"
Judge
Vancouver, British Columbia
31 July, 1998
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-2842-97
STYLE OF CAUSE: Chun Wai Lam
| v. |
| The Minister of Citizenship and Immigration |
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: July 28, 1998
REASONS FOR ORDER OF THE COURT BY: REED, J.
DATED: July 31, 1998
APPEARANCES:
| Andrew Wlodyka for Applicant |
| Leigh Taylor for Respondent |
SOLICITORS OF RECORD:
| Andrew Wlodyka for Applicant |
Wong & Associates
| Morris Rosenberg for Respondent |
Deputy Attorney General of Canada