Ottawa, Ontario, February 20, 2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Federal Court of Appeal in Thanaratnam v. Canada (Minister of Citizenship and Immigration), [2006] 1 F.C.R. 474 (F.C.A.), determined that the Board may properly find a person to be inadmissible under paragraph 37(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 17 (IRPA) for being a gang member or because he was engaging in gang related activities or for associating with members of the gang in furtherance of the gang’s criminal activities:
[30] ... The structure of paragraph 37(1)(a) makes it clear that "membership" of a gang and engaging in gang-related activities are discrete, but overlapping grounds on which a person may be inadmissible for "organized criminality". The "engaging in gang-related activities" ground of "organized criminality" was added by the IRPA and did not appear in its predecessor, paragraph 19(1)(c.2) of the Immigration Act, R.S.C. 1985, c. I-2. In order to give meaning to the amendment to the previous provision made by the IRPA, Parliament should be taken to have intended it to extend to types of involvement with gangs that are not included (or not clearly included) within "membership".
[31] In the absence of a finding by the Judge on whether the Board's decision could be upheld on the basis that there was sufficient evidence before the Board to enable it to conclude that there were reasonable grounds to believe that Mr. Thanaratnam was engaging in activities that were part of the V.V.T.'s pattern of criminal activity, I turn now to that question.
[2] The question to be decided is whether there is any evidence capable of supporting the Board’s finding that there were reasonable grounds to believe that Mr. Thaneswaran was engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence and punishable under an Act of Parliament by way of indictment.
[3] The evidence before the Board was to the effect that the V.V.T. (named after a town in northern Sri Lanka, Valvettuthurai), is “involved in criminal acts, including murders, attempted murders, serious assaults, extortions, kidnapping, frauds, drugs and weapons offences.” Thus, the Board determined that the V.V.T. is a criminal organization for the purposes of paragraph 37(1)(a) of the IRPA. (Reference is made to: Thanaratnam (Trial Division), above, at paragraph 23).
[4] Furthermore, the Board did not assume that every charge or conviction faced by Mr. Thaneswaran was gang-related; rather, the Board considered the evidence regarding the individual instances of observed gang-related activities as well as the totality of the evidence, as it is entitled to do.
[5] Cumulatively, the evidence clearly supports the Board’s conclusion that there were reasonable grounds to believe that Mr. Thaneswaran was “engaging in activity that is part of a gang-related pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment”. The totality of the evidence, including the record of twenty-three separate gang-related incidents, the lack of credibility of the Applicant, his relationships with V.V.T. associates and members and the Applicant’s ten year weapons prohibition supports the Board’s finding.
JUDICIAL PROCEDURE
[6] This is an application for judicial review of a decision of the Immigration Division of the Immigration and Refugee Board (Board) dated February 13, 2006, wherein it was determined that the Applicant was inadmissible under section 36 and subsection 37(1)(a) of the IRPA.
BACKGROUND
[7] The Applicant, Mr. Sinnarajah Thaneswaran, is a 34 year old citizen of Sri Lanka. He was landed in Canada as a permanent resident on May 12, 1994.
[8] The Applicant was reported by the police on September 21, 2001, under paragraphs 27(1)(a) and 19(1)(c.2) of the previous Immigration Act, R.S.C. 1985, c. I-2, as a person for whom there are reasonable grounds to believe is or was a member of a criminal organization known as the V.V.T. gang and/or that there are reasonable grounds to believe is or was engaged in activity planned and organized by a number of persons acting in concert in furtherance of the commission of any offence under the Criminal Code of Canada, R.S., c. C-34, s.1 (Criminal Code) and Part III or IV of the Food and Drugs Act, R.S., c. F-27, s.1, that may be punishable by way of indictment or in the commission outside of Canada of an act or omission that, if committed in Canada, would constitute such an offence.
[9] Subsequently, on January 10, 2003, Mr. Thaneswaran was reported by the police under subsection 36(1)(a) of the IRPA because he was convicted on March 7, 2002, of the indictable offence of assault, causing bodily harm under section 267 of the Criminal Code.
DECISION UNDER REVIEW
[10] In its decision rendered on February 8, 2006, the Board found Mr. Thaneswaran inadmissible, and thus liable to be deported.
[11] The Board based its decision on two grounds. First, of a conviction in Canada of an offence punishable by a term of imprisonment of ten years, Mr. Thaneswaran is inadmissible under paragraph 36(1)(a) of the IRPA. The Applicant does not challenge this finding and concedes that he may be deported pursuant to paragraph 36(1)(a) of the IRPA.
[12] Second, having found that the V.V.T. gang is a criminal organization, “involved in criminal acts including murders, attempted murders, serious assaults, extortions, kidnappings, frauds, drugs and weapons offences. In the majority of offences, the perpetrators as well as the victims are Tamil” and that there were reasonable grounds to believe that Mr. Thaneswaran was involved in gang-related criminal activities, the Board determined the Applicant to be inadmissible pursuant to paragraph 37(1)(a) of the IRPA. This finding resulted in Mr. Thaneswaran losing his right to appeal the finding of the Immigration Appeal Division on humanitarian grounds under subsection 64(1) of the IRPA. It is this decision by the Board that constitutes the basis of this judicial review.
ISSUES
[13] 1) Did the Board err by not explicitly addressing in its reasons the Applicant’s objections to the admissibility of certain pieces of evidence before it?
2) Did the Board err in concluding that the Applicant was engaged in gang-related activities?
STATUTORY SCHEME
[14] Section 33 and paragraph 37(1) of the IRPA state the following:
STANDARD OF REVIEW
[15] The question as to whether there was sufficient evidence for the Board to conclude that there were “reasonable grounds to believe” the grounds of paragraph 37(1)(a) of the IRPA exist, is a question of mixed fact and law; however, the evidence considered was so largely factual that the Board’s finding should be set aside only if it is patently unreasonable. (Thanaratnam, above, (F.C.A.), at paragraphs 26-27).
ANALYSIS
1) Did the Board err by not explicitly addressing in its reasons the Applicant’s objections to the admissibility of certain pieces of evidence before it?
[16] In his written submissions to the Board, Mr. Thaneswaran raised concerns as to the admissibility of two pieces of evidence (a printout of the Weather Network on April 11, 2004 and the Toronto Police Service Criminal Investigations Manual) (TPS Manual). Mr. Thaneswaran asserts that the Board exceeded its jurisdiction by failing to deal with his motion relating to the admissibility of the aforementioned pieces of evidence because the Board did not specifically refer to the objections in its reasons.
[17] The Board has great flexibility in terms of the evidence which it may consider. In fact, it is not bound by any legal or technical rules of evidence and may rely on any evidence it considers credible or trustworthy in the circumstances. (IRPA, subsection 173(c) and (d), Thanaratham v. Canada (Minister of Citizenship and Immigration), [2004] 1 F.C.R. 474 (T.D.), at paragraph 7).
[18] Further, as long as evidence is not material to the case before it, the Board’s decision not to admit evidence or to refer to each and every piece of evidence does not amount to a reviewable error. (Yushchuk v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1324 (QL), at paragraph 17).
[19] Given that the rules of evidence are flexible in what regards proceedings before the Board, the Board had no obligation to rely or make reference to the two documents submitted by the Applicant, as there is no indication that either document was material to the case.
[20] In other words, while it was open to the Board to accept evidence about weather conditions on April 11, 2004, such evidence was unnecessary to conclude that Mr. Thaneswaran’s version of the incident in question was not credible. The Applicant’s explanation that he and his friends just happened to be carrying a gun, knives, baseball bats and dog repellent when they were intercepted by police officers investigating reports of a gang fight at a public park, was found to be not credible, especially since an eye-witness reported that a man with a gun got into a car of identical make and colour as the one Mr. Thaneswaran was in and that a gun wrapped in a blue toque was found in this vehicle.
[21] In any case, as the Board noted, the twenty-three gang-related incidents observed by the police could not be explained as “unfortunate coincidences”.
[22] With respect to the TPS Manual, Mr. Thaneswaran acknowledges that the document could only be admitted if the Minister established the relevance of the document. As the relevance of this document was never established, the Board did not rely on that TPS Manual.
NO MATERIAL ERRORS MADE BY THE BOARD
[23] The Board had numerous credibility concerns which are specifically identified in its reasons. The Board did not rely on the objected evidence pertaining to the weather conditions for its negative credibility determinations. Clearly, the Board did not consider this evidence to be material to the outcome of the case. Thus, even if Mr. Thaneswaran can establish that the Board committed an error in not making a specific ruling on the admissibility of this evidence, this error itself is immaterial to the ultimate findings in this case. Moreover, even if the Board had erroneously made a negative credibility finding based on an inconsistent weather report, which it did not, this in itself would not and cannot carry sufficient weight to displace otherwise sound credibility findings treating the particular incident of April 11, 2004, or Mr. Thaneswaran’s credibility, generally. While the Board did indeed, state that this incident was of particular concern, it did not on the basis of any weather inconsistencies in evidence – instead, the Board found this incident of particular concern for different reasons, it specifically noted:
Of particular concern is the incident of April 11, 2004, where Mr. Thaneswaran was in a 2004 Chev Yukon Gold that contained a loaded pistol, ready to be fired, and a knife…
[24] In order for evidence to be material to the case, it has to meet a much less stringent, broader definition of relevance. In other words, the relevance test is much easier to meet than the materiality test. On the basis of relevance, Mr. Thaneswaran objected to the admitting in evidence of the “amended Toronto Police Service Criminal Investigations Manual”, tendered by the Respondent as “a background document which illustrates the evolution of the criteria and methods utilized by the Toronto Police to identify gang activity and/or gang members in Toronto…” Mr. Thaneswaran, while taking the position that the document should not have been admitted on the basis of relevance, also, at cross purposes argues that it “was a foundation to the Minister’s case. It is shocking, unfair and not in the interest of justice, that the ID overlooks the serious attack levied against the Applicant”; however, simple logic dictates that something irrelevant to the case cannot be at the same time material to the outcome of the case. Thus, if an error was made by the Board on this point due to the irrelevance of the evidence, it does not assist Mr. Thaneswaran to argue that the same evidence was material to the outcome of the case. Mr. Thaneswaran has not alleged that the introduction of this document was in any way prejudicial to him.
[25] It is now trite principle of law that even where there is a clear breach of procedural fairness and/or natural justice, a decision should not be sent back for redetermination where the claim is bound to fail.
[26] When faced with a decision containing a reviewable error, a court may choose to exercise its discretion, not to grant the relief sought under certain circumstances. The reviewable error may be an error of law or a breach of natural justice or of procedural fairness. Where reconsideration of the impugned decision would be futile, it is justifiable to disregard the reviewable error where the deficiencies of the claim are such that it would in any case be hopeless. (Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, at p. 228; Cartier v. Canada (Attorney General), 2002 FCA 384, [2002] F.C.J. No. 1386 (C.A.) (QL), at paras. 30-36; Vézina v. Canada (Ministry of National Revenue – M.N.R.), 2003 FCA 67, [2003] F.C.J. No. 201 (C.A.) (QL), at para. 7; Yassine v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 949 (F.C.A.) (QL), at paras. 9-10; Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306, [1992] F.C.J. No. 109 (C.A.) (QL), at para. 32; Canadian Cable Television Assn v. American College Sports Collective of Canada, Inc., [1991] 3 F.C. 626, [1991] F.C.J. No. 502 (C.A.) (QL), at para. 41; Soares v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 312 (F.C.A.) (QL); Yorulmaz v. Canada (Minister of Citizenship and Immigration), 2004 FC 128, [2004] F.C.J. No. 193 (QL), at para. 6; Brovina v. Canada (Minister of Citizenship and Immigration), 2004 FC 635, [2004] F.C.J. No. 771 (QL); Nyathi v. Canada (Minister of Citizenship and Immigration), 2003 FC 1119, [2003] F.C.J. No. 1409 (QL), at paras. 23-24).
[27] The relief which may be available by judicial review is inherently discretionary. The use of permissive, as opposed to mandatory, language in subsection 18.1(3) of the Federal Courts Act, 1985, c. F-7, preserves the traditionally discretionary nature of judicial review. (Cartier, above, at paras. 30-31; Canadian Cable Television Assn, above, at para. 41).
[28] This is consistent with the findings that the terms of paragraph 18.1(4)(d) of the Act imply that the ultimate decision need only be rationally supported by certain material before the tribunal. Thus, even where one finding of fact is reviewable, so long as there are other facts upon which a tribunal “could reasonably base its ultimate conclusion”, the conclusion will be upheld. (Stelco Inc. v. British Steel Canada Inc., [2000] 3 F.C. 282, [2000] F.C.J. No. 286 (C.A.) (QL), at para. 22).
[29] The Court has also repeatedly dismissed attempts to turn a “relatively minor” factual error into a signal error. (Duodu v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 447 (F.C.A.) (QL), at para. 1).
[30] In Mersini v. Canada (Minister of Citizenship and Immigration), 2004 FC 1088, [2004] F.C.J. No. 1364 (QL), the Refugee Division dealt with the ground of political opinion in its decision and failed to address the ground of membership in a social group (family). When completing his application and PIF, the Applicant identified on his form both political opinion and membership in a social group. The Board never indicated that it rejected or accepted the ground of social group. It also did not explicitly reject the assertions regarding the Applicant’s family’s involvement in the Democratic Party. Justice Judith Snider, at paragraph 10 of the decision, indicated that the Board did not err because there was no evidentiary basis upon which the Board could have concluded that the Applicant was linked to the persecution that was suffered by his family members. Thus, the failure to address this ground was not fatal to the decision, although it would have been preferable for the Board to mention it.
[31] In Bhatti v. Canada (Minister of Citizenship and Immigration), (10 March 2004, IMM-1966-03 (T.D.)), this was the Applicant’s third claim for refugee protection, but first claim under the consolidated grounds under the IRPA. The claim was heard, and the panel rejected the Applicant’s claim. In so doing, it applied the doctrine of res judicata but also found the Applicant was not a person in need of protection. The matter was heard before Justice Johanne Gauthier who dismissed the application for judicial review. Justice Gauthier determined that the Board did not err in applying the doctrine of res judicata to the Applicant’s claim under s. 96 of the IRPA; however, that res judicata could not apply to the claim under s. 97 as this was a new ground not previously reviewed. “But, I am satisfied that his error is not determinative, because the RPD also said that the documentary evidence produced did not support a finding that he faces more than a mere possibility of persecution, particularly in view of the fact that he was unable to adduce satisfactory evidence of his involvement in the MQM…”
[32] Finally, in Soboyejo v. Canada (Minister of Citizenship and Immigration), 2003 FC 1355, [2003] F.C.J. No. 1740 (QL), Justice Yvon Pinard found the finding on internal flight alternative to be determinative. Justice Pinard reviewed the evidence on which the IFA finding was based and found it to be reasonable. Given the reasonableness of the finding, Justice Pinard determined that the other errors alleged by the Applicant would not be material and the Panel’s decision still stands. On that basis, Justice Pinard dismissed the application for judicial review without certifying any question.
[33] Ultimately, the Board did not err by not explicitly addressing in its reasons the objections raised by Mr. Thaneswaran relating to the admissibility of certain pieces of evidence.
2) Did the Board err in concluding that the Applicant was engaged in gang-related activities?
[34] Mr. Thaneswaran argues that the Board did not identify a pattern of criminal activity, as required under paragraph 37(1)(a) of the IRPA when it found that the V.V.T. was a criminal organization and that the Applicant was engaging in activities that were part of the V.V.T.’s pattern of criminal activity.
[35] In Thanaratnam (Appeal Division), above, the Court of Appeal determined that the Board may properly find a person to be inadmissible under paragraph 37(1)(a) of the IRPA for being a gang member or because he was engaging in gang related activities or for associating with members of the gang in furtherance of the gang’s criminal activities:
[30] In my opinion, this was an error of law. The structure of paragraph 37(1)(a) makes it clear that "membership" of a gang and engaging in gang-related activities are discrete, but overlapping grounds on which a person may be inadmissible for "organized criminality". The "engaging in gang-related activities" ground of "organized criminality" was added by the IRPA and did not appear in its predecessor, paragraph 19(1)(c.2) of the Immigration Act, R.S.C. 1985, c. I-2. In order to give meaning to the amendment to the previous provision made by the IRPA, Parliament should be taken to have intended it to extend to types of involvement with gangs that are not included (or not clearly included) within "membership".
[31] In the absence of a finding by the Judge on whether the Board's decision could be upheld on the basis that there was sufficient evidence before the Board to enable it to conclude that there were reasonable grounds to believe that Mr. Thanaratnam was engaging in activities that were part of the V.V.T.'s pattern of criminal activity, I turn now to that question.
[36] Hence, the question to be decided is whether there is any evidence capable of supporting the Board’s finding that there were reasonable grounds to believe that Mr. Thaneswaran was engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence and punishable under an Act of Parliament by way of indictment.
[37] The Board first determined that the V.V.T. is a criminal organization defined by paragraph 37(1)(a) of the IRPA. In Sittampalam v. Canada (Minister of Citizenship and Immigration), 2006 FCA 326, [2006] F.C.J. No. 1512 (QL), the Court of Appeal identified certain factors to consider when attempting to define the term “organization” under paragraph 37(1)(a) of the IRPA:
[37] Paragraph 37(1)(a) appears to be an attempt to tackle organized crime, in recognition of the fact that non-citizen members of criminal organizations are as grave a threat as individuals who are convicted of serious criminal offences. It enables deportation of members of criminal organizations who avoid convictions as individuals but may nevertheless be dangerous.
[38] Recent jurisprudence supports this interpretation. In Thanaratnam v. Canada (Minister of Citizenship and Immigration), [2004] 3 F.C.R. 301 (T.D.), reversed on other grounds, [2006] 1 F.C.R. 474 (C.A.), O'Reilly J. took into account various factors when he concluded that two Tamil gangs (one of which was the A.K. Kannan gang at issue here) were "organizations" within the meaning of paragraph 37(1)(a) of the IRPA. In his opinion, the two Tamil groups had "some characteristics of an organization", namely "identity, leadership, a loose hierarchy and a basic organizational structure" (para. 30). The factors listed in Thanaratnam, supra, as well as other factors, such as an occupied territory or regular meeting locations, both factors considered by the Board, are helpful when making a determination under paragraph 37(1)(a), but no one of them is essential.
[39] These criminal organizations do not usually have formal structures like corporations or associations that have charters, bylaws or constitutions. They are usually rather loosely and informally structured, which structures vary dramatically. Looseness and informality in the structure of a group should not thwart the purpose of IRPA. It is, therefore, necessary to adopt a rather flexible approach in assessing whether the attributes of a particular group meet the requirements of the IRPA given their varied, changing and clandestine character. It is, therefore, important to evaluate the various factors applied by O'Reilly J. and other similar factors that may assist to determine whether the essential attributes of an organization are present in the circumstances. Such an interpretation of "organization" allows the Board some flexibility in determining whether, in light of the evidence and facts before it, a group may be properly characterized as such for the purposes of paragraph 37(1)(a).
[40] With respect to the appellant's argument that criminal jurisprudence and international instruments should inform the meaning of a criminal "organization", I disagree. Although these materials can be helpful as interpretive aides, they are not directly applicable in the immigration context. Parliament deliberately chose not to adopt the definition of "criminal organization" as it appears in section 467.1 of the Criminal Code, R.S. 1985, c. C-46. Nor did it adopt the definition of "organized criminal group" in the United Nations Convention against Transnational Organized Crime (the "Convention"). The wording in paragraph 37(1)(a) is different, because its purpose is different.
[38] The evidence before the Board was to the effect that the V.V.T. is “involved in criminal acts, including murders, attempted murders, serious assaults, extortions, kidnapping, frauds, drugs and weapons offences.” Thus, the Board determined that the V.V.T. is a criminal organization for the purposes of paragraph 37(1)(a) of the IRPA. (Reference is made to: Thanaratnam (Trial Division), above, at para. 23).
[39] In other words, the Board found that the V.V.T. represented a “number of persons acting in concert” and who are “engaged in activity that is part of a pattern of criminal activity.” Moreover, the offences committed by the group and its associates include offences that may be prosecuted by way of indictment.
[40] Contrary to the Applicant’s arguments, after determining that the V.V.T. was a criminal organization under paragraph 37(1)(a) of the IRPA, the only remaining question for the Board was whether there were reasonable grounds to believe that Mr. Thaneswaran was either a member of the group or was “engaging in activity” that was part of the V.V.T.’s pattern of criminal activity.
[41] The case law is clear that the Board need not only consider the charges against the Applicant that resulted in actual convictions. The language of paragraph 37(1)(a) of the IRPA is unambiguous as it only requires that there are reasonable grounds to believe that an offence punishable under an Act of Parliament by way of indictment was committed. The evidence in this case clearly established that the V.V.T. was responsible for crimes that are so punishable. (Thanaratnam (Trial Division), above, at paragraphs 14-20).
[42] It is important to note that Lee v. Canada (Minister of Employment and Immigration), [1980] 1 F.C. 374 cited by the Applicant is no longer valid case law. As stated by the Federal Court in Ladbon v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 706 (QL):
[5] Thus the reasoning in the Lee case is no longer applicable because of the change of wording in section 19 and which now provides that as long as the offence may be punishable by way of indictment a summary conviction is sufficient to bring the Applicant within the section. Accordingly there is no serious issue as to whether the Respondent erred in its decision of issuing a deportation order dated June 16, 1994. The application for a stay is denied.
(Reference is made to: R. v. Mohammed, [2001] O.J. No. 5759 (QL), at para. 16).
[43] Furthermore, the Board did not assume that every charge or conviction faced by Mr. Thaneswaran was gang-related. Rather, the Board considered the evidence regarding the individual instances of observed gang-related activities as well as the totality of the evidence, as it is entitled to do.
[44] On the basis of this evaluation, the Board determined that there were reasonable grounds to believe that the Applicant was engaged in organized criminal activity as described in paragraph 37(1)(a) of the IRPA. The evidence relied upon by the Board includes:
(1) that Mr. Thaneswaran associated with a number of V.V.T. members and associates;
(2) that Mr. Thaneswaran’s good friend and co-accused, Mr. Sharone Thanratnam, was found inadmissible for organized criminality, a decision that was upheld by the Federal Court of Appeal;
(3) Mr. Thaneswaran’s testimony that he was not associated with members of the V.V.T. gang was not found to be credible;
(4) Mr. Thaneswaran is currently under a weapons prohibition until June 24, 2012;
(5) Mr. Thaneswaran was involved in twenty-three separate incidents of gang-related activity observed by the police between 1997 and 2004, which cannot be explained by either “bad luck” or “being at the wrong place at the wrong time”.
[45] Moreover, it is to be noted that of those twenty-three separate incidents, the Board found four incidents that provided evidence of Mr. Thaneswaran’s involvement in gang-related activities, namely the following occurrences:
(1) On December 7, 1997, Mr. Thaneswaran was stopped by police with Sharone Thanaratnam after police heard what they thought was a gunshot in the area. Contrary to the Applicant’s written submissions, there was evidence before the Board that the police found a machete and hatchet at Mr. Thaneswaran’s feet in the car in which he was riding.
(2) On May 31, 1998, Mr. Thaneswaran was involved in a swarming. The Applicant was a passenger in a vehicle operated by Mr. Sureshkumar Kanagalingam, aka “Koli”, an individual believed by Toronto Police Services to be a leader of the V.V.T. After this incident, Mr. Kanagalingam was convicted of the dangerous operation of a motor vehicle causing bodily harm.
Contrary to Mr. Thaneswaran’s assertions, the Board need not confine itself to incidents where one criminal organization attacks another criminal organization for the specific purposes of territoriality, revenge or intimidation. Furthermore, it is to be noted that Mr. Thaneswaran does not dispute that he was involved in this incident.
(3) On August 26, 2001, Mr. Thaneswaran, while in the company of Mr. Markkandu Mathankajan, was arrested and charged with attempted murder. The Applicant reportedly had a gun and a gunshot was heard. No gun was found but Mr. Thaneswaran was convicted of assault in relation to this incident.
Contrary to the Applicant’s assertion, there was eye-witness evidence that Mr. Thaneswaran had a gun, that he prepared it for firing, and that a gunshot was heard, the Board noted that no gun was found. Also, there is no evidence that the incident was merely related to a dispute over parking, as the Applicant alleges.
(4) On April 11, 2004, Mr. Thaneswaran was in a 2004 gold “Yukon” model SUV that contained a loaded pistol, ready to be fired, and a knife.
As noted above, it is irrelevant that the weapon charges were dropped when it became clear that there was no way of proving that Mr. Thaneswaran owned the weapons in the car. What is of essence is that there were reasonable grounds to believe that the incident in question was gang-related.
[46] As in Thanaratnam (Appeal Division), above, no single piece of evidence is determinative to the finding that an Applicant is engaged in gang-related criminal activity. What is necessary is that cumulatively the evidence clearly supports the Board’s conclusion that there were reasonable grounds to believe that Mr. Thaneswaran was “engaging in activity that is part of a gang-related pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment”. The totality of the evidence, including the record of twenty-three separate gang-related incidents, the lack of credibility of the Applicant, his relationships with V.V.T. associates and members and the Applicant’s ten year weapons prohibition supports the Board’s finding.
[47] Ultimately, the Applicant failed to demonstrate that the Board “based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it” following the standard of review of patent unreasonableness. Accordingly, this Court is not justified to intervene in this matter.
CONCLUSION
[48] For all of the reasons above, no reviewable error is found to justify the intervention of this Court. Consequently, the application for judicial review is dismissed.
JUDGMENT
1. The application for judicial review be dismissed;
2. No serious question of general importance be certified.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1122-06
STYLE OF CAUSE: SINNARAJAH THANESWARAN
v. THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 12, 2007
REASONS FOR JUDGMENT: SHORE J.
APPEARANCES:
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Mr. Micheal Crane
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Ms. Lisa Hutt
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SOLICITORS OF RECORD:
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MICHEAL CRANE Toronto, Ontario
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JOHN H. SIMS, Q.C. Deputy Attorney General of Canada
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