Date: 20011204
Docket: IMM-4038-00
Neutral citation: 2001 FCT 1335
BETWEEN:
CHOR SHAN CHONG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicant seeks judicial review of a decision of the visa officer dated April 12, 2000, wherein the officer denied the applicant's application for permanent residence as an entrepreneur because he had reasonable grounds to believe the applicant is or was a member of a criminal organization and therefore inadmissible to Canada pursuant to subsection 19(1)(c.2) of the Immigration Act.
[2] The primary issue is whether the visa officer erred in determining that the applicant was inadmissible pursuant to subsection 19(1)(c.2) of the Immigration Act. The subissues are: 1) whether the visa officer had reasonable grounds to believe that the applicant was a member of a criminal organization and 2) whether the organization was a criminal organization that engaged in criminal activity that is contrary to 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 an offence. There is also an issue as to whether the visa officer breached the principles of fairness in failing to provide the applicant with a timely decision and failing to provide a summary of confidential information to the applicant.
[3] The applicant submits that the visa officer did not have reasonable grounds to believe the applicant was a member of a criminal organization within the meaning of paragraph 19(1)(c.2). The standard is set out in Sabour v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1615 (T.D.) where Lutfy A.C.J. stated the law by referring to several decisions where the matter was considered. Sopinka J. stated in R. v. Zeolkowski [1989] 1 S.C.R. 1378 that:
... there is an objective basis for the reasonable grounds on which the peace officer acted
Lutfy A.C.J. stated at paragraph 14:
As did Justice Lemieux in Qu, I accept the formulation of the standard of proof as stated by Justice Dubé in Chiau v. Canada (Minister of Citizenship and Immigration), [1998] 2 F.C. 642 (T.D.), at paragraph 27:
The standard of proof required to establish "reasonable grounds" is more than a flimsy suspicion, but less than the civil test of balance of probabilities. And, of course, a much lower threshold than the criminal standard of "beyond a reasonable doubt". It is a bona fide belief in a serious possibility based on credible evidence.
He also referred to the respondent's guidelines for the interpretation of "reasonable grounds to believe" which read as follows:
... The words "reasonable grounds to believe" import a standard of proof which lies between mere suspicion and the balance of probabilities. Balance of probabilities is lower than the criminal standard of beyond reasonable doubt. The reasonable grounds standard means that there needs to be an objective basis for the belief and that the Immigration officer must be able to satisfy a third party such as an adjudicator or a court that there are indeed reasons to support the belief. The information on which the belief is based should be compelling, credible and corroborated.
Lutfy A.C.J. then stated:
The requirement, in the department's view, that the information be "compelling, credible and corroborated" is at least as demanding as Justice Dubé's standard of "serious possibility based on credible evidence".
[4] The visa officer in his refusal letter dated April 12, 2000, stated that notwithstanding that the applicant denied in his interview that he was ever a member of a criminal organization and after reviewing the submissions made by his lawyers and consultants over the years since this process began in 1994, he concluded that he was a member of the inadmissible class described in paragraph 19(1)(c.2). At page 2 the officer stated:
You have advised in effect that you maintained a close business relationship with a company which you were aware had been closely associated with criminal intimidation tactics and charging extortionate prices for services within a wholesale vegetable market. I have noted that your description of the criminal activities of this group is consistent with what is generally known about the nature of triad society activities in local markets. On the basis of review of information provided to me by your consultants, and by you at interview, I have determined that you believed that this company had been "blacklisted" from operating in new market premises due to its reputation for using strong arm tactics and suspicions of its triad society links. I asked you if you believed persons involved in this company in the old market location were triad members, and you advised me that you believed that they were. You nonetheless collaborated with this company to provide them with access to the new market using your business name. Your description of your business relationship with this company, as provided at interview, indicates to me that your business was little more than a "front" for the activities of the "blacklisted" company. I have noted that you advised that you felt pressured by this company's tactics to assist them, but I am not satisfied on review of the evidence available that you were personally coerced into collaborating with them to the extent you did. I have noted from police statements, which you provided, that you were arrested for criminal intimidation along with three other members of this company, but that you were not formally charged or convicted as a result of that investigation. I have nonetheless determined that there are reasonable grounds to believe that for all practical purposes you were a member of a criminal organization on the basis of your knowing collusion and complicity with a triad controlled business.
[5] The applicant submits that he was associated with the criminal group but did not belong to the criminal group. The applicant sets out that the visa officer did not have reasonable grounds for believing that the applicant was a member of a criminal organization as defined in paragraph 19(1)(c.2) of the Act because:
a) the applicant has never been convicted of a criminal offence in Hong Kong;
b) the applicant gave voluntarily statements to the police and was co-operative with the police;
c) the applicant appeared before the Independent Commission Against Corruption in Hong Kong and gave evidence of corruption in the vegetable markets;
d) the applicant denied being a member of a criminal organization;
e) the visa officer did not determine equivalency;
f) the visa officer misconstrued the information relating to the applicant's involvement with the Hong Kong police in 1994;
g) the visa officer improperly assumed that the applicant was "guilty by association";
h) there is no information pertaining to the applicant ever possessing a membership card in a criminal organization, swearing an oath to such organization, paying dues or displaying the symbols of such organization in his personal and commercial behaviour;
i) failed to give effect to the presumption of innocence;
j) did not consider all of the criteria rendering a person inadmissible under paragraph 19(1)(c.2) of the Act because he failed to address the issue whether the applicant had satisfied the Minister that his admission would not be detrimental to the national interest;
k) the information relating to the fact that Ming Kee has associated with or acted as a "front" for a criminal organization (Triad gang) is vague and tenuous;
l) there was a genuine business purpose in the applicant's association with Ming Kee because: i) he could carry on business more effectively with electronic trolleys he rented from Ming Kee; ii) he needed fewer employee when he used the rented trolleys; iii) he had a genuine need for 5 additional employees;
m) he supervised and provided direction to the Ming Kee employees;
n) there is no information to suggest that the applicant paid his employees anything but a reasonable wage or that any part of the wages were applied for any unlawful purpose;
o) there is no information to suggest that the monies paid for the rent of the electronic trolleys was excessive;
p) Cheun Kee approved all invoices administered by Ming Kee;
q) there is no information to suggest that the services the applicant obtained from Ming Kee were illegal, not business related or were excessive;
r) the Vegetable Wholesaler Association approved the business relationship with Ming Kee;
s) the applicant did not receive income from a criminal activity;
t) the applicant did not invest any income in any criminal activity;
u) the applicant did not participate directly or indirectly in the conduct of an organization involved in a pattern of criminal activity.
[6] It is instructive to note Evans J.A.'s remarks in Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297 (C.A.) where he states at paragraph 57:
It is not, therefore, either necessary, or helpful, to say much more about the meaning of the term "members" for the purpose of paragraph 19(1)(c.2). However, by equating being a "member" with "belonging to" a criminal organization, the Trial Division Judge correctly concluded that, in this context, the term should be broadly understood.
He went on to say at paragraphs 58 and 59:
First, in my view, paragraph 19(1)(c.2) of the Act is broad enough to enable Canada to protect its national security by excluding, not only those intending to commit crimes here, but also those whose presence in Canada may be used to strengthen a criminal organization or to advance its purposes.
Second, it will not always be possible to draw a bright line between the legitimate business activities of a criminal organization and its criminal activities. The former may be used to launder the proceeds of the latter, while the organization's criminal activities may in turn be financed by profits made from a successful legitimate business that it controls. Hence, a person's participation in a legitimate business, knowing that it is controlled by a criminal organization, in some circumstances may support a reasonable belief that the person is a member of the criminal organization itself.
He then quotes the law with respect to the standard for "reasonable grounds" as set out above.
[7] I also note Nadon J.'s comments in Au v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 435 (T.D.), another case involving paragraph 19(1)(c.2). At paragraph 43 he states:
... It is not up to this Court to decide whether or not the applicant is a member of a triad; the issue is whether there were reasonable grounds for the visa officer to believe that the applicant should be denied entry pursuant to s. 19(1)(c.2) of the Act. I am satisfied that the totality of the record, including the confidential affidavits, supports Officer Schultz's conclusions. It should not be forgotten that Officer Schultz had considerable experience and knowledge with respect to the activities of triads in Hong Kong.
[8] Likewise, I am satisfied here and do not even have to rely on the confidential affidavits to support the visa officer's conclusions. I also note that the applicant's allegation in c) above that he reported Ming Kee's activities to ICAC is not corroborated. In any event, the visa officer carefully considered the applicant's evidence that he was initially harassed by the group and was fearful of them. However, on a review of the totality of the evidence he provided at the interview, he was not satisfied that the applicant acted out of coercion and fear for his family's safety or that the applicant's relationship with Ming Kee was innocuous and tenuous.
[9] Furthermore, the applicant did not give "evidence of corruption in the vegetable market" as he never followed through on his alleged report. I also note that membership is sufficient to bring the applicant within the provisions of paragraph 19(1)(c.2) of the Immigration Act since Triad organizations have a single brutal purpose, that is the commission of crime for financial gain. There is no requirement that the applicant be linked to specific crimes as the actual perpetrator.
[10] The applicant also advised the visa officer that members of the Ming Kee were involved in using extortion, intimidation protection ratchets and assault against wholesalers in both the old and new markets. The applicant's co-accused was convicted of blackmail, theft, criminal danger and claiming to be members of Triad society. It was open to the visa officer to find on the basis of these criminal offences committed outside of Canada by Ming Kee, whom the applicant described as members of a "black society", that there were reasonable grounds to believe that the organization was engaged in the commission of offences that if committed in Canada would constitute offences under the Criminal Code or Controlled Drugs and Substances Act that may be punishable by way of indictment.
[11] I also note that possession of a membership card is not necessarily indicative of whether a person belongs to a Triad society. Furthermore, Triad members actively deny membership and refrain from disclosing membership and adherence to the 36 oaths of Triad loyalty.
[12] There was no need for the visa officer to address the exemption provision referred to in j) of the applicant's reasons for not being considered to be a member of a criminal group because the applicant expressly denied being a member of a criminal organization. Also, the applicant's information about Ming Kee's Triad connections were not vague and tenuous since the applicant told the visa officer that Ming Kee are members of a "black society" and described their strong arm tactics in both the old and new markets, i.e. beating people, chaining a gate, extortionate prices for transport and intimidation. Contrary to the applicant's submission that there was no information that he obtained illegal services from Ming Kee, income from criminal activity, or that he invested in criminal activity and did not participate in the conduct of Ming Kee, the applicant admitted he knew that Ming Kee were members of a "black society" and that while he was responsible for fixing a price with Ming Kee, Ming Kee controlled the collection of the fees charged for transportation services. There were no checks done at the point of collection by the applicant or his company.
[13] In my view, the officer had reasonable grounds to believe that the applicant was a member of a criminal organization within the meaning of paragraph 19(1)(c.2).
[14] I will now address whether the visa officer breached the principle of fairness. There was certainly delay in this matter since the case started in 1994 and the applicant was requested by a previous immigration officer, on January 16, 1996, to provide certain documents and information and no decision was made for four years subsequent to that request. While there was certainly a delay in assigning a visa officer with experience in conducting background checks with respect to suspected Triad members, it was necessary to complete the background checks and it does not constitute unreasonable delay.
[15] In Singh v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1742 (T.D.), Simpson J. stated:
In my view, fairness requires that an applicant receive a timely Decision. What that means will vary with the circumstances of each case. I have no doubt, however, that a 2 year delay between an interview and notification to the applicant of the Decision is unacceptable where there are no special circumstances which account for the delay.
The case before me is distinguishable from the Singh case, because in that case, the officer had applied irrelevant considerations with respect to certain evidence. Further, in this case there are special circumstances. Background checks involving the use of intelligence information and informants necessarily take some time, and in my view the delay in obtaining these checks constitute the type of special circumstances to which Justice Simpson referred in Singh.
[16] The applicant also submits that the applicant was denied fairness by the respondent failing to disclose confidential information. I decided on the subsection 82.1(1) motion to prohibit the disclosure of information on grounds of national security or public interest. In Chiau, Evans J.A. stated there was no need to provide a summary of information to a potential immigrant. He referred to subsection 39(6) of the Immigration Act which imposes a duty on the Security and Intelligence Review Committee to provide a person about whom a report is made a summary of security intelligence reports so the person concerned can be fully informed, if possible, about the circumstances giving rise to the report. He goes on to say at paragraph 54:
However, this statutory requirement does not necessarily indicate that the duty of fairness requires the production of a similar summary before a person is refused a visa on national security grounds. This is because section 39 of the Act applies to the deportation of permanent residents of Canada: deportation normally has a more serious impact on the individual concerned, and on his or her family, than the refusal of a visa to a person seeking admission to Canada as an independent immigrant, and thus attracts greater procedural safeguards. When another decision, such as the refusal of a visa, has a less serious impact on individual interests, there is less justification for requiring a degree of disclosure that might result in damage to national security, and the factors determining the content of the duty of fairness must be rebalanced.
[17] In my view, the fact that section 40.1 of the Immigration Act was not referred to in that decision does not make the decision less binding. I agree that in section 40.1 a summary of information is provided. Furthermore, in this case, the applicant has been given as much disclosure as possible and only a very small portion of record has been excised.
[18] The application for judicial review is dismissed. Since this case is based on the facts of the case, there is no question of general importance.
"W.P. McKeown"
JUDGE
OTTAWA, ONTARIO
December 4, 2001