IAD Decision (EN) - Calgary Herald · IAD.34 (October 2007) Disponible en français. IAD File No. /...

IAD File No. / No de dossier de la SAI : VA4-01093

Client ID no. / No ID client : 2866-6791

Reasons and Decision − Motifs et décision

REMOVAL ORDER

Appellant(s) Appelant(e)(s)Nghia Trong NGUYEN-TRAN

(ALSO KNOWN AS: TRAN TRONG NGHI NGUYEN)

Respondent THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Intimé(e)LE MINISTRE DE LA SÉCURITÉ PUBLIQUE ET DE LA PROTECTION CIVILE

Date(s) and Place of Date(s) et lieu deHearing 20 November 2008 l’audience

10 December 2008

Vancouver, BC

Videoconferencing held in Calgary, AB Fait par vidéoconférence à

Date of Decision 7 April 2009 Date de la décision

Panel Renee Miller Tribunal

Counsel for the Conseil(s) deAppellant(s) Ram Sankaran l’appelant(e) / des

Barrister and Solicitor appelant(e)(s)

Counsel for the Minister Dan Davidson Conseil du ministre

IAD.34 (October 2007)Disponible en français

IAD File No. / N° de dossier de la SAI : VA4-01093

Reasons for Decision

[1] These are my reasons and decision in the appeal of Nghia Trong NGUYEN-TRAN (also

known as: Tran Trong Nghi NGUYEN) (the “appellant”), from the removal order made against

him on April 20, 2004 by the Immigration Division of the Immigration and Refugee Board (the

“IRB”). The Immigration Division (the “ID”) issued the Removal Order on the ground that the

appellant is a person described in paragraph 36(1)(a) of the Immigration and Refugee Protection

Act (the “Act”);1 in particular that he is a permanent resident of Canada who has been convicted

in Canada of an offence punishable by a maximum term of imprisonment of ten years.2 The

appellant was convicted of two counts of trafficking in cocaine, both of which are punishable by

maximum terms of life in prison.

[2] This is the appellant’s second appeal regarding this Removal Order. His first appeal was

dismissed by another member of this Tribunal on January 10, 2008. The appellant successfully

applied for judicial review to the Federal Court of Canada. By order of the Federal Court of

September 4, 2008, the appeal was returned to this Tribunal for a new hearing by a differently

constituted panel. This appeal was heard over two days.

[3] I heard evidence from the appellant, his mother Laura Tran, and girlfriend Dawn Ngo.

As well I heard testimony from Sergeant Walker of the Calgary Police Services (the “CPS”). I

also reviewed the documentary materials submitted by both the appellant and the respondent (the

“Minister of Citizenship and Immigration”). The appellant’s materials, Exhibits A-1 through A-

4, included letters regarding the appellant’s employment from 2001 onward, his income tax

returns, banking records, medical records related to his mother, a psychological report from Dr.

Baillie dated November 14, 2008, the decision of the ID, as well as sentencing documents and a

judgement from the criminal court of Alberta. The respondent’s materials included a full copy of

the appellant’s criminal record, documents relating to the experience of their witness Sergeant

Walker, the criminal history of the appellant as alleged by the CPS, the visitor record from the

appellant’s most recent incarceration, the details of an investigation by the police involving the

1 Immigration and Refugee Protection Act (the “Act”), SOR/2002 – 227.2 36(1) A permanent resident or a foreign national is inadmissible on grounds of serious

criminality for(a) having been convicted in Canada of an offence under an Act of Parliament punishableby a maximum term of imprisonment of at least 10 years, or of an offence under an Act ofParliament for which a term of imprisonment of more than six months has been imposed.

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appellant on October 25, 2008 (shortly after his release from custody on October 17, 2008), and

the details of an incident involving the appellant while he was in custody.

ISSUE

[4] The appellant did not challenge the legal validity of the removal order and I find that the

removal order is valid in law. The appellant brings his appeal pursuant to subsection 63(3) and

section 67 of the Act3 and asks for discretionary relief. The onus is on the appellant to establish

that, taking into account the best interest of any child directly affected by the decision, sufficient

humanitarian and compassionate grounds exist to warrant special relief in light of all the

circumstances of the case.

PRELIMINARY MATTERS

[5] The respondent presented Sergeant Walker as an expert witness. His curriculum vitae

was filed with the Tribunal and a good portion of the testimony on the second day of hearing

covered the qualifications of this witness.

[6] Counsel for the appellant argued that Sergeant Walker should not be qualified as an

expert. Counsel questioned the witness at length regarding his educational experience, the nature

of his research into the topic of gangs and criminal organizations, and his knowledge of the

appellant and the specific organizations relevant to this appeal. Counsel argued that the witness

has no completed post-secondary education, no scholarly training on the issue of gangs, has

published no materials on gangs, and most of his reading was anecdotal accounts of biker gangs,

which admittedly differ from the two groups at issue in this appeal (the “FK [Fresh Killers]” and

“FOB [Fresh off the Boat]”). Counsel also noted that the witness had only been qualified as an

expert once before, at the IAD where no counsel opposed his qualification, and that the witness3 63(3) A permanent resident or a protected person may appeal to the Immigration Appeal

Division against a decision at an examination or admissibility hearing to make a removal orderagainst them.67(1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time thatthe appeal is disposed of,

(a) the decision appealed is wrong in law or fact or mixed law and fact;(b) a principle of natural justice has not been observed; or(c) other than in the case of an appeal by the Minister, taking into account the best interestsof a child directly affected by the decision, sufficient humanitarian and compassionateconsiderations warrant special relief in light of all the circumstances of the case.

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recently was not qualified in the Alberta criminal courts. Counsel for the appellant argued that

the witness was biased; that he is a member of law enforcement who has been investigating the

FOB and FK full-time since 2002 during which he has been monitoring and collecting evidence

against the appellant. The argument is that none of the charges against the appellant have

resulted in convictions in the past few years therefore the witness, who heads the gang task force,

has a theory about the appellant which is at odds with the findings of the criminal justice system.

Lastly, counsel for the appellant argues that much of the information of the witness is hearsay

and double hearsay and therefore is inherently unreliable and not-credible. For these reasons

counsel for the appellant asserts that Sergeant Walker should not be accepted as an expert

witness.

[7] Counsel for the respondent argues that Sergeant Walker ought to qualify as an expert

witness. He notes that the rules of evidence which apply to criminal justice proceedings do not

apply to this Tribunal and therefore the standard for evaluating the qualifications of an expert

may differ. He points out that on January 15, 2009 the decision of the criminal court declining to

qualify Sergeant Walker as an expert was overturned on appeal. He also notes that education

and research into a topic are not the only criteria by which an expert witness may be evaluated,

and Sergeant Walker has the personal employment experience to give testimony as an expert.

Counsel for the respondent referred me to other cases decided by the IAD, which while not

binding upon me, provide a reference point for the assessment of expert testimony.4 Those cases

are ones where the work experience of the expert was accepted as sufficient to establish expertise

on an issue, despite the absence of scholastic work. As evidence of the work experience of the

witness counsel for the respondent argued that the witness has worked full-time investigating and

learning about the FK and the FOB, he has also conducted extensive reading on gangs and their

general operations, and he has participated in professional development on this issue with other

criminal justice organizations. Counsel for the respondent argued that the level of detailed

knowledge about gang structures in general, the FK and FOB, the local, national and

international criteria for assessing gang activity, and the information gathering techniques of the

4 Zhang v. MCI (IAD VA4-00318) Hudon, January 4, 2005; Huang v. MCI (IAD V89-00937)Wlodyka, Gillanders, Singh, September 24, 1990.

3


gang task force are all indicative of this expertise. Lastly, with regard to the argument of bias,

counsel for the respondent notes that employment as a police officer does not equate to bias, nor

does the length of time the witness has spent in learning and observation of these groups result in

bias. For these reasons he asks that I qualify Sergeant Walker as an expert witness. Counsel for

the respondent did not specify the issue upon which the witness is to provide an opinion.

[8] On the matter of the qualification of Sergeant Walker as an expert witness, I agree with

counsel for the respondent. It is a long established principle of law that an expert witness is a

person possessed of special knowledge acquired through study or experience, which entitles him

to give an opinion on a topic of expertise which is likely outside the experience and knowledge

of the decision-maker.5 I acknowledge the point made by counsel for the appellant that Sergeant

Walker does not have expertise in the topic of criminal organizations in Calgary based on his

education. However, research and study of these groups is not the only criteria for evaluating

expertise. I agree with former Member Hudon that expertise with regard to criminal activity and

criminal organizations can come from those who are appointed by the authorities to monitor and

deal with such activity.6 In coming to my conclusion regarding the expertise of Sergeant Walker

I have considered his length of years working as a police officer in Calgary, in particular with an

emphasis on criminal organizations in that city, the nature of his professional development in the

area of criminal organizations, his educational research via literature on the topic of criminal

organizations, whether scholarly or otherwise. I was persuaded of the value and relevance of the

witness’ experiential evidence because of the level of detailed information he provided about

criminal organizations in general, in comparison to the FK and FOB, and his methodology for

gathering and confirming information. Sergeant Walker’s experience dealing with criminal

organizations in Calgary is sufficient to qualify his as an expert witness on this topic. In regard

to the allegation of bias, the mere fact of Sergeant Walker’s employment is not sufficient to

establish bias against the appellant. The fact that the task force collected evidence involving the

appellant, which led to charges but no conviction does not establish that the witness has a

‘theory’ regarding the appellant. This is particularly so given that the witness’ professional

obligation is to report circumstances and evidence to the criminal justice system, without control

over any subsequent resolution. There is no substantive or credible evidence of any bias on the

5 Rice v. Sockett (1912), 8 D.L.R., 84 (H.C.).6 Supra, Footnote 4.

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part of the witness. Lastly, as counsel for the respondent rightly points out an allegation of

hearsay does not mean the evidence presented is not credible or reliable, but affects the weight to

be given the evidence. Therefore, I accept Sergeant Walker as an expert on the question of

determining gang membership.

ANALYSIS

[9] By way of background the appellant is 26 years old, was born in Vietnam, and became a

permanent resident of Canada on January 28, 1993. He came to Canada as the dependent child

of his mother. The appellant has lived in Canada for over 13 years.

[10] The appellant asserts that there are sufficient humanitarian and compassionate

circumstances, including the depth of his relationship with his mother and younger sister, to

outweigh the seriousness of his criminal behaviour. The respondent asserts that the appellant is a

known member of a criminal organization in Canada, which is involved in a deadly feud with

another criminal gang, that he is at personal risk in Canada and his ongoing presence in Canada

creates a danger to the public and therefore he ought to be removed from Canada.

[11] The factors to be considered in a removal order appeal were established in the decision of

Ribic7 and are as follows:

a) the seriousness of the offence or offences leading to the removal order;

b) the possibility of rehabilitation or, alternatively, the circumstances surrounding the failureto meet the conditions of admission;

c) the length of time spent, and the degree to which the appellant is established in, Canada;

d) the family in Canada and the dislocation to the family that removal would cause;

e) the family and community support available to the appellant; and

f) the degree of hardship that would be caused to the appellant by the appellant’s return tohis or her country of nationality.

7 Ribic, Marida v. M.E.I. (I.A.B. 84-9623), D. Davey, Benedetti, Petryshyn, August 20, 1985.5


While these factors are not exhaustive they should be considered by me when exercising my

discretionary relief.

[12] The evidence before me establishes that the appellant has the following criminal record:

- a conviction as a youth offender for possession of a scheduled substancein July 2000;

- two convictions as a youth offender for failure to comply with the termsof a recognisance in December 2001;

- a conviction as an adult in February 2002 for failure to attend court;

- two convictions in March 2002 for trafficking in cocaine (theconvictions which led to the removal order);

- a conviction for assault with a weapon in March 2003 (this convictionwas also noted by the ID in its consideration of the removal order);

- a conviction in March 2003 for failure to attend court;

- a conviction for failure to comply with the terms of a recognisance inJuly 2005; and

- two convictions for failure to comply with the terms of a recognisance inOctober 2006.

[13] I will begin by looking at the seriousness of the offences which led to the deportation

order and the appellant’s prospects for rehabilitation. Drug offences are considered serious

offences in Canada. This is evidenced by the fact that Parliament has provided for a maximum

term of imprisonment of life for the act of trafficking in narcotics. The length of potential

sentence is indicative of the seriousness with which Canadian society views this offence.

Trafficking in narcotics is also internationally recognized by the United Nations as being a

serious threat to societies generally. The need to protect the safety of Canadian society is a

stated principle of the Act, and therefore the appellant’s actions in direct contradiction to the

safety of Canadian society is a serious matter and one which is not favourable to the appellant

when considering his circumstances.

[14] The seriousness of these offences is heightened by a number of aggravating factors.

First, the appellant began his history of criminal behaviour at a young age; his first conviction6


was while he was still a youth offender. Despite two convictions as a youth, the appellant did

not rehabilitate and went on to commit 8 further offences as an adult. Three of those were

serious enough to have led to the allegations of the respondent; that the appellant was criminally

inadmissible to Canada by virtue of his criminal acts. Five of those offences are ones which

display the appellant lack of compliance with his sentencing terms, or failure to abide by the

terms and conditions imposed by the criminal justice system. The appellant’s ongoing criminal

behaviour, throughout his adult life, is not a positive factor when considering this appeal. These

are all factors which aggravate the seriousness of his convictions.

[15] However, there is also evidence which mitigate the seriousness of the appellant’s

criminal behaviour. The appellant plead guilty to the two charges of trafficking in cocaine and

the one charge of assault with a weapon. His admission of culpability before the criminal justice

system is a factor in his favour. I note that the appellant has been charged with other serious

criminal activity in this time period, but not convicted of these charges and therefore he is

entitled to the benefit of belief that he was not guilty of the acts alleged. These are mitigating

factors when considering the seriousness of the appellant’s criminal history.

[16] When I consider the appellant’s prospects for rehabilitation I take note of the fact that he

has readily taken responsibility for the crimes he committed. Although he has amassed a record

of 11 convictions, there have been no new convictions since October 2006 (two plus years) and

the convictions between March 2003 and October 2006 involved problems complying with terms

and conditions as opposed to the commission of acts which endanger Canadian society. He

provided credible evidence of his full-time employment since 2001, and his responsibilities

within his family. Those are factors which indicate some ability and effort to rehabilitate and

therefore are in favour of the appellant.

[17] In addition, at the hearing the appellant expressed remorse for his behaviour. I could not

determine whether he was remorseful for the circumstances he now finds himself in – facing

deportation, or for his criminal acts. Therefore I did not find these indications of remorse to be

persuasive, either for or against allowing the appeal.

7


[18] However, the evidence which demonstrates the appellant’s efforts at rehabilitation is

contradicted by other evidence which indicates a failure on the part of the appellant to

rehabilitate. I note that although I give the appellant credit for the absence of evidence indicating

he is continuing to participate in serious criminal activities, his failure to comply with the terms

and conditions of his sentencing and bail is not a positive factor overall. Those are still criminal

acts, although more minor in nature. In addition, those convictions demonstrate the appellant’s

inability or unwillingness to fully comply with the terms and conditions placed upon him. Those

are not acts which demonstrate rehabilitation.

[19] More compelling, however, is the evidence that the appellant 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.

[20] The appellant told me that he knows the other men who are identified by Sergeant

Walker as being members of the FK and FOB gangs.8 He either attended secondary school with

them, or met them later in life through friends and associates.9 He has known many of them

since he arrived in Canada. He denied being a member of either gang.10 He said that he is

alleged to be a member because he knows and is friends with these people. He acknowledges

spending time with his friends and said that other men from the rival gang have some sort of

problem or conflict with his friends, although he denies having any knowledge of the nature of

that conflict. He admitted that as recently as the night before his appeal hearing he had dinner

with the parent of a member of the FK, and both members of the FK and their parents visited him

while he was in detention in 2008.11

[21] When questioned about his efforts to rehabilitate the appellant said that he has changed

his thinking and assessment of his own behaviour and now understands the effect of crime and

its harm to others. I believe the appellant meant to tell me that this is why he no longer

participates in the drug trafficking which lead to the removal order. I did not find the appellant’s

own evidence about the extent of the change in his thinking to be credible. In particular because

of other evidence which contradicted the truth of these statements. Almost immediately after the

8 Transcript: November 20, 2008, p. 30, lines 39-40.9 Transcript: November 20, 2008, pp. 32-34.10 Transcript: November 20, 2008, p. 31, lines 18-20.11 Transcript: November 20, 2008, pp. 67, 70.

8


appellant’s release from immigration detention, Alberta Child and Family Services came to his

mother’s home and apprehended the appellant’s step-sister; once with the mother’s consent and

9


once with a court order. According to the evidence before me, from the appellant, his mother

and Sergeant Walker, the threat to the sister was not from the appellant himself but due

exclusively to the collateral danger from the appellant’s presence in the mother’s home. The

appellant said he understood the reason for the removal, but downplayed the seriousness. He

told me that he thought his sister had been removed from the home to try and discredit him.12

The appellant’s lack of understanding of the process and evidence required to get a court order to

remove his sister from her mother’s care and his lack of insight into the danger he presents to

that child through his ongoing presence belies his earlier statements that he understands the harm

and effect of his actions. The appellant’s inability to understand and accept the effect his

ongoing association with gang members has on his family demonstrates the lack of credibility of

his statements regarding the extent of his rehabilitation and thinking.

[22] Similarly, despite telling me that he has realized the negative effect his previous

association has had on his life and his desire to distance himself from his friends and put his

family first, he has not done so.13 He said he first realized his need to make changes in his life

after he learned of his potential deportation in 200414 and again after receiving the respondent’s

disclosure materials in June 2008.15 Despite that realization of his need to distance himself, he

told me that he has continued his contact with these friends. He admitted that while incarcerated

in 2008 parents of identified gang members visited him in custody.16 He also had dinner the

night before he testified at this hearing with the mother of two friends, also identified gang

members who had been allegedly involved in a shooting 4 days earlier and who have been

charged in regard to that shooting incident.17 The appellant’s very recent contact with friends

and family members of identified gang members demonstrates his lack of distance from these

people, and therefore his lack of rehabilitation.

[23] Similarly, I did not accept other evidence presented by the appellant regarding his

rehabilitation as credible and reliable. The appellant, his mother and his girlfriend all told me

that the appellant has rehabilitated and is not a member or associate of either gang. However,

12 Transcript: November 20, 2008, p. 107.13 Transcript: November 20, 2008, p. 44.14 Transcript: November 20, 2008, p.49.15 Transcript: November 20, 2008, p. 110.16 Transcript: November 20, 2008, p.67.17 Transcript: November 20, 2008, p.70.

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their evidence on this point was not consistent. While the appellant told me that he continues to

see and remains friends with the people who are identified members of a gang, Dawn told me

that he does not; that he only sees these people once or twice per year at special events. His

mother has very limited knowledge of the appellant’s activities and friends. Perhaps the mother

and girlfriend are not fully informed of the level of the appellant’s interaction with these friends,

but in any event their evidence did not corroborate the appellant’s.

[24] In another example, the appellant denied having been present when an attempt was made

on his life at Dawn’s house. Yet, Dawn admitted to the shooting having occurred and to having

spoken to the police, although she had no specific recollection of her statement about the

incident. Other witnesses observed the appellant leaving the house as shots were fired and slugs

were retrieved from the scene. The appellant’s version of events is not consistent with this other

evidence and those inconsistencies undermine the credibility and reliability of his statements.

[25] Lastly, the appellant’s assertion that he has no association or membership with these

gangs is contradicted by his own behaviour. According to the evidence presented 13 of his

friends/associates have either been shot or stabbed in the past few years, 3 of them killed. Two

attempts have been made on the appellant’s life, one in the presence of Dawn. All of this activity

is much reported in the media in Calgary. In addition, because of the secondary danger to his

sister due to the risk that an attempt on the appellant’s life will be made while he is at home, his

9 year old sister has been apprehended from her mother’s care pursuant to a court order. These

are unusual circumstances for all but the rarest of people. Given those circumstances common

sense would indicate that if the appellant were truly not associated with these gangs he would

have voluntarily distanced himself from his friends for his own and his loved one’s safety. His

ongoing denial of the danger to himself and his loved ones, and his lack of distance from his

associates belies the credibility and reliability of his evidence that he is not associated with these

gangs.

[26] I also find that my conclusion is consistent with the evidence of Sergeant Walker about

the appellant’s friends and associates. According to this witness the appellant is a member of the

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FK. Initially the two gangs were one, but split into two factions. The appellant went to school

with several known and identified members, and was an admitted associate/friend of one of the

founders of the FK – Mr. Boychuck.18 According to Sergeant Walker both groups are involved

in crime,19 dial-a-dope activities, but the associations are more the result of friendship and loyalty

than the pursuit of money. He admitted that he does not know why the original group split or the

exact cause of their current feud. He said their organization is more horizontal than vertical, and

therefore it is difficult to know who exactly is a member and what, if any, degree of authority

they exercise within the organization. Sergeant Walker was able to identify a number of

members/associates who have been shot or killed in recent years. He also set out CPS and

national criteria for identifying gang membership and identified the appellant as a member of the

FK.

[27] After considering the evidence of Sergeant Walker I accept as credible and reliable the

conclusion that the appellant is an associate or member of the FK. I accept this evidence as

credible and reliable because the witness was able to clearly identify the criteria through which

membership is established by both the CPS and national standards.20 I note the criticism of the

CPS criteria as being broader than the national criteria, but I do not accept that criticism as being

persuasive. Those two criteria appear to be substantially the same, and even if the CPS criteria is

broader insufficient argument was presented to conclude that the appellant would not be

considered a member of the FK according to national criteria. According to the witness the

criteria are identical in substance; the national standard requires identification of membership

from any source, whereas the CPS requires gang membership from one of three types of sources.

According to either set of criteria membership in a gang is identified by participation in a crime

which involves a degree of organization, such as trafficking in narcotics, and inclusion in 2 of 7

other criteria. Whether that identification of information comes from anyone, or from one of

three identified sources, the criteria for membership remain substantially the same. As indicated

by Sergeant Walker the appellant was convicted of the crime of trafficking, when arrested he was

in the presence of another identified member of the FK, and has been identified as a member of

the FK by an unidentified source. This, according to Sergeant Walker, is sufficient to identify

18 Transcript: November 20, 2008, pp. 32, 40; Transcript: December 10, 2008, p. 47.19 Transcript: December 10, 2008, p. 50.20 Transcript: December 10, 2008, p. 52.

12


the appellant as a member of the FK according to both the CPS and national criteria. I accept

this evidence as credible and reliable.

[28] I also accept the evidence of Sergeant Walker that the appellant is a member of the FK,

because of the consistency between the witness’ evidence and the evidence of the appellant. The

appellant admitted that he has been friends with Mr. Boychuck, the alleged originator of this

gang, since high school. In addition, the appellant admitted to friendship with ten other men all

identified as associates or members of the FK. Many of them were high school friends of the

appellant, which is exactly how Sergeant Walker described this gang as having started. The

appellant admitted that he was with Mr. Boychuck when he was arrested for trafficking. He also

admitted that another identified member visited him while he was in custody, and the common-

law spouse of another member raised his bail money. Lastly, he acknowledged that the night

before his appeal hearing he had dinner with the mother of one of these identified gang members.

His contact with these people is clearly ongoing. Given the admissions of the appellant, in

combination with the evidence of Sergeant Walker regarding his assessment of membership I

conclude that the appellant is a member and associate of the FK.

[29] Sergeant Walker also gave evidence about the danger to society these gangs present. He

testified that one member of the FK has been convicted of manslaughter, arising out of an

incident several years ago. He also described a recent incident where members of both the FK

and FOB where shot and are presently charged with criminal offences. What was particularly

persuasive about this evidence was the fact that many of the shootings/stabbings described in the

testimony of both the appellant and Sergeant Walker took place in public: outside malls, in or

around nightclubs, at homes in residential areas, and between driving cars in public.21 These

facts are not in dispute. These circumstances give rise to an obvious risk to the public.

[30] My conclusion that the appellant is a member and associate of the FK is not a factor in

his favour. His ongoing association with the members of this gang is not demonstrative of

rehabilitation. It also undermines the credibility of the appellant and his witnesses’ evidence

regarding the genuineness of his effort to rehabilitate.

21 Transcript: December 10, 2008, pp. 52 & 54.13


[31] As part of the evaluation of the effect of the appellant’s ongoing association with the FK I

note that another section of the Act, section 121, specifically states that when considering

penalties under the Act the fact that an offence has been committed in association with a criminal

organization is an aggravating factor. I acknowledge that section 121 refers to aggravating

factors for the offences of human smuggling and trafficking. Therefore this is not a required

consideration for me. But, the fact that the Act 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 Medovarski22 that “the words of this statue, 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 Act 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 the crime of trafficking, in the presence of an identified member of the FK, and is

admittedly having an ongoing association with the members of the FK is an aggravating factor;

both when considering the seriousness of the appellant’s criminal acts and his efforts at

rehabilitation.

[32] My conclusions regarding the appellant’s membership in the FK and his incomplete

efforts at rehabilitation is at odds with the conclusion of Dr. Baillie. I note that the qualifications

of Dr. Baillie are not contested and I accept that he is well qualified to conduct the type of testing

and analysis contained in his report. I note that the background information as set out by Dr.

Baillie for the appellant’s history, schooling, parenting, and alcohol and drug use are consistent

with the evidence presented to me. I acknowledge the conclusions of Dr. Baillie regarding the

appellant’s risk to re-offend. Dr. Baillie writes that from an actuarial risk assessment perspective

there is limited potential that the appellant would engage in future violent acts. He draws this

conclusion because of the absence of various risk factors and the fact that much of the risk with

regard to the appellant comes from historical factors which no longer may be influential.23

Despite that statement I arrive at a different conclusion regarding the appellant’s risk to re-

offend. Even if the historical factors and influences on the appellant’s behaviour are removed, I

do not accept the appellant’s evidence regarding his lack of membership and involvement in the

22 Medovarski v. Canada (Minister of Citizenship and Immigration) [2005] 2 S.C.R. 539.23 Exhibit A-2, Report of Dr. Baillie, p.8.

14


FK as credible, and therefore the conclusions of Dr. Baillie are no longer applicable. Even Dr.

Baillie himself acknowledged that “if Mr. Nguyen is found to lack sufficient credibility and if a

determination is made, even in the face of multiple charges having been dismissed, that he is

affiliated with a particularly violent element of organized crime, then all evaluations offered here

are easily negated”. I acknowledge the point made by Dr. Baillie that the criminal justice system

has not found the appellant guilty of any criminal behaviour. I accept that as true. However, I

do not believe the criminal justice system was considering or determining whether the appellant

continues to be a member of or associated with an organized crime group. As this is one of the

specific issues before me, and on the basis of the evidence presented by both parties I conclude

that the appellant is a member and associate of the FK, the conclusions of Dr. Baillie are not as

persuasive. I continue to take into consideration the lack of historical risk factors, but I consider

the appellant’s ongoing association with the FK to be an acknowledged risk factor of recidivism.

Therefore I do not accept without amendment Dr. Baillie’s conclusion. In my view the risk of

re-offence for the appellant is higher than assessed in this report.

[33] In consideration of all the evidence related to the factor of rehabilitation I conclude that

the appellant has not sufficiently demonstrated his rehabilitation. He has made efforts through

an absence of ongoing serious criminal activity and expressions of remorse for the consequences

of his previous behaviour, but the appellant was not credible and persuasive in describing the

extent of his rehabilitation. Although he has begun the process of rehabilitation it is not

complete, nor as substantial as it might be.

[34] When considering the weight to attach to the appellant’s efforts at rehabilitation and the

seriousness of his criminal behaviour I must consider the comments of the Supreme Court of

Canada in Medovarski regarding the weight to be accorded to the principles of security. The

court notes that:

10. The objectives as expressed in the IRPA indicate an intent to prioritizesecurity. This objective is given effect by preventing the entry of applicants withcriminal records, by removing applicants with such records from Canada, and byemphasizing the obligation of permanent residents to behave lawfully while inCanada. … Viewed collectively, the objectives of the IRPA and its provisionsconcerning permanent residents, communicate a strong desire to treat criminalsand security threats less leniently than under the former Act.

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In my view this indicates that the Ribic factors which relate to issues of security have been

elevated in importance, relative to those related to the integration of the appellant to Canadian

society. The ‘non-security’ related Ribic factors must therefore be disproportionate to outweigh

evidence which indicates an ongoing security risk. Taking into account this direction from the

Supreme Court of Canada, the appellant’s ongoing association with the members of the FK is 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

effort 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.

[35] I note that the appellant has resided in Canada for more than 13 years, which is not an

insignificant amount of time. All of his adult years have been spent in Canada. However, the

significance of this factor is mitigated by the fact that the appellant spent more time living in

Vietnam than he has in Canada, and the majority of his time spent in Canada has involved

criminal behaviour. Therefore the evidence on this point is equivocal.

[36] Given the amount of time the appellant has lived in Canada I conclude that he is

relatively well established in Canada. He does not have significant assets, but that is not the only

indicia of establishment. He attended school in Canada, completing Grade 10 and continuing

part-way through Grade 11. Since leaving school he has worked fairly continuously. He

provided documentary evidence to demonstrate his full-time employment since 2001. A letter

from his previous employer describes him as a skilled glass-cutter. He has not worked for some

time, but I acknowledge that he spent almost the entire year of 2008 in custody and therefore

could not have been gainfully employed. He speaks English fluently and showed that he is well

integrated into Canadian society. These facts which indicate his degree of establishment in

Canada are positive factors when considering the appellant’s appeal.

[37] I have also considered the evidence of the effect of the appellant’s removal on his family

members in Canada. This is also a factor which weighs in favour of allowing the appeal. The

appellant has some extended family in Canada, but more significant is his relationship with his

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mother and 9 year old step-sister. The appellant lives with his mother and sister and the degree

of their dependence on the appellant is significant.

[38] The appellant’s mother, Laura, was injured in a work accident in 1995 and remains

disabled from employment due to her chronic pain condition. The nature of her injury limits her

ability to move her right arm and she has chronic pain for which she must take strong

medication. This prevents her from working, as well as limits her ability to perform physical

functions around the household, such as cleaning and lifting. She also does not speak English or

drive. These limitations in the household are areas where the appellant has stepped into the role

of provider. The household survives on a combination of the appellant’s income and the

mother’s disability payments. All activities in the household which require manual effort are

performed by the appellant. In addition, it is the appellant who acts as an English language

conduit for his mother in her daily affairs, dealings with the Alberta worker’s compensation

system, and frequent medical visits. The loss of his financial, emotional, physical, and language

support would be very significant for Laura Tran. There was minimal evidence to suggest a

support network for Laura Tran outside of the appellant. The dependence of this disabled mother

on her son is a significant factor which weighs in favour of the appellant.

[39] The appellant also has a relationship with his girlfriend Dawn Ngo. This is a relationship

of many years and the girlfriend testified that she supports the appellant in his efforts to

rehabilitate himself and establish a life in Canada. Dawn provided testimony, not only regarding

the appellant’s rehabilitation, but the responsibilities the appellant carries in the family home. I

acknowledge the length of this relationship and its significance to the appellant, but the evidence

with regard to Ms. Ngo was not completely positive. Firstly, although hard for her I do not

believe that the removal of the appellant from Canada would be as devastating to Ms. Ngo as to

Laura Tran. Dawn Ngo lives at home with her entire family. She is currently enrolled in full-

time studies and has future plans for a career which are unrelated to Mr. Tran. She has a life and

support network in Canada unrelated to the appellant. In addition, given the evidence I noted

above regarding the appellant’s membership or association with the FK gang, there is some

danger to Dawn Ngo and her family in their support of the appellant. I note in particular the

incident described in the testimony of Sergeant Walker and in the documentary materials

provided by the respondent, wherein unknown assailants attempted to shoot the appellant as he

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was leaving Ms. Ngo’s family home. The appellant’s presence at that home put the witness and

her family at risk of physical injury. Whether or not Ms. Ngo or the appellant are involved in

any gang activities becomes irrelevant when considering this factor. The fact remains that the

people who threaten the appellant were prepared to attack him while he was at Dawn’s family

home, thereby secondarily threatening Ms. Ngo and her family. Therefore, despite the evidence

demonstrating a significant relationship between the appellant and Dawn Ngo, I conclude that

she would not be overwhelmingly adversely affected by the removal of the appellant from

Canada. That is not a factor in his favour.

[40] When I look at the best interest of a child affected by my decision I must consider the

evidence of the appellant’s step-sister. The appellant, his mother, and Ms. Ngo all corroborated

the large role the appellant plays in the life of his sister. He is the only one in the household,

besides the nine year old girl, who speaks English. Hence he does all the communication with

her teachers and school. He goes to all her medical appointments to communicate with doctors.

He drives her to and from school. He provides financial support to her, via the mother, but also

takes her to movies, to McDonalds, to the park and Zoo and buys gifts for her. He was described

to me as her lifeline to English speaking society. What was described to me was that the

appellant is the de facto parent to this child in many respects. That is a significant factor in his

favour when considering all the circumstances of his appeal.

[41] However, the evidence regarding the best interest of this child is not completely in the

appellant’s favour. Due to his physical presence in the home, and the risk that someone will

attempt to take the appellant’s life while he is at home, this child has been apprehended from the

care of her mother and brother. According to the information before me she has not been living

at home with her mother since the appellant returned home in November 2008. That is a

significant adverse effect on this child from the appellant’s presence.

[42] The appellant attempted to downplay the risk to his sister, suggesting that it was a

manoeuvre of the CPS and the respondent to make him look bad; to make him look more

dangerous than he really is. As I noted above, the appellant’s lack of insight into the evidence

and effort required to obtain a court order to remove this young girl from her mother’s care, and

the appellant’s downplaying of the danger to himself and his loved ones is not a factor in his

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favour. The evidence before me is that two attempts have been made on the appellant’s life

already, one of which was at Dawn’s family home in a residential neighbourhood. In addition,

according to Sergeant Walker many of the shootings between the FK and FOB take place in

public: in front of houses, outside malls, and between cars on the streets. Given those

circumstances the danger to the appellant’s sister seems genuine. Lastly, even the appellant’s

mother agreed that the child was safer in protective services than living at home with the

appellant. Therefore, although I acknowledge the significant and important role the appellant

plays in his sister’s life, he also brings danger to her which mitigates the positive effect of his

efforts to care for her.

[43] I am prepared to accept that removal of the appellant from Canada to Vietnam would

cause some degree of difficulty for the appellant, given that he has lived in Canada for several

years, has adjusted to life in Canada, and has family and work in Canada. He also has significant

relationships with people in Canada. There was minimal evidence to suggest any relatives in

Vietnam who would be able to provide the appellant with financial support in Vietnam.

However, it is also clear from the evidence before me that the appellant is in danger in Canada,

he speaks Vietnamese and has job skills which might assist him to adjust to life in that country.

Therefore the evidence of the hardship to the appellant in removal to Vietnam is equivocal.

[44] Overall, the most compelling factors in favour of allowing the appellant’s appeal are the

effect of his removal on his mother and sister. I acknowledge the credibility and reliability of the

evidence which suggests that the effect on the mother and sister will be severe. Clearly it is in

their best interest to have the appellant remain in Canada. He provides financial, emotional,

language and physical support to them. I found this factor to be very significant because, despite

the secondary danger to his sister, the appellant is her life-line to Canadian society. The

appellant was able to provide me with spontaneous and detailed evidence of his involvement in

his sister’s life, the efforts he takes to care for his sister and help her integrate with Society.

According to the evidence the mother is not capable of doing so. Without her brother this 9 year

old girl is left in a situation of some degree of isolation from the world, because of the physical,

financial and language limitations of her mother. That is a significant positive factor for the

appellant.

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[45] However, the benefit to the mother and sister in having the appellant remain in Canada

must be weighed against the danger to the public, the seriousness of his crimes and the degree of

his rehabilitation. Although the appellant, himself, is not a danger to the public as there is no

evidence that he has continued his serious criminal activities which are dangerous to the public,

his mere presence in Canada creates a secondary danger. There is a risk that another attempt will

be made on his life, while in public, creating a risk to other innocent people. The respondent

suggests that this risk cannot be managed if the appellant remains in Canada. The appellant

suggest that there is no risk, but in the alternative suggest a place of residence in Vancouver. Yet

residence in Vancouver would not allow the appellant to continue to provide the physical,

emotional and language support for his mother and sister which were factors in his favour.

There is no resolution of these contradictory factors by allowing the appellant to remain in

Canada, but in another province.

[46] Similarly, although I acknowledge that the appellant has started down the road to

rehabilitation his efforts are not yet complete. I acknowledge his lack of recent criminal activity

and the lack of historical risk factors noted by Dr. Baillie. The appellant demonstrated more than

a mere possibility of rehabilitation; he has voluntarily undertaken responsibilities at home and

has expressed his remorse. However, by his ongoing association with the FK he continues to

demonstrate his lack of rehabilitation. Full rehabilitation is not required in order to let the

appellant remain in Canada. But when balanced against the principles of protecting the security

of Canadian society, as set out in the Act, the failure of the appellant to more fully rehabilitate

must be seen in combination with the seriousness of his criminal acts, and the serious effect of

his ongoing association with the FK.

[47] To the extent that there are strong factors which weigh in favour of the appellant, the

severe effect on his family members from his removal, the interests of his mother and sister and

not so disproportionate as to outweigh the negative security interests which weigh against

allowing the appeal. The appellant has made a conscious decision, as an adult, to continue his

association and membership with the FK. That decision aggravates the seriousness of his

criminal convictions and puts his ongoing residence in Canada at risk. That decision undermines

his efforts at rehabilitation and results in an ongoing danger to the Canadian public. The other

Ribic factors such as the length of time he has spent in Canada, his establishment in Canada, and

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the hardship on the appellant in return to Vietnam are not sufficiently strong to outweigh the

security interests which require the appellant’s removal from Canada. As such, I find that the

removal order is valid in law and the appellant has not demonstrated sufficient humanitarian and

compassionate considerations, taking into account the best interest of any child directly affected

by my order, to warrant the granting of special discretionary relief. I dismiss his appeal.

NOTICE OF DECISION

The appeal is dismissed.

(signed) “Renee Miller”

Renee Miller

7 April 2009Date (day/month/year)

Judicial review – Under section 72 of the Immigration and Refugee Protection Act, you may make an application to the Federal Court for judicialreview of this decision, with leave of that Court. You may wish to get advice from counsel as soon as possible, since there are time limits for thisapplication.

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IAD Decision (EN) - Calgary Herald · IAD.34 (October 2007) Disponible en français. IAD File No. /...

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Transcript of IAD Decision (EN) - Calgary Herald · IAD.34 (October 2007) Disponible en français. IAD File No. /...