Akanbi v. Canada (Citizenship and Immigration)

Akanbi v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2023-03-07
Neutral citation
2023 FC 309
File numbers
IMM-2229-21
Decision Content
Date: 20230306
Docket: IMM-2229-21
Citation: 2023 FC 309
Ottawa, Ontario, March 7, 2023
PRESENT: Mr. Justice Norris
BETWEEN:
DELE JIMOH AKANBI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I. OVERVIEW
[1] On April 16, 2015, the applicant was driving on a highway in Austin, Texas when he was pulled over by a member of the Austin Police Department. A citizen of Nigeria, the applicant had come to the United States as a visitor in 2012 and taken up residence in the Austin area. There was one passenger in the car, Adeola Morenikeji Dosunmu, a Canadian citizen.
[2] After questioning both the applicant and Ms. Dosunmu, the officer concluded that he had grounds to search the vehicle and the applicant’s belongings. He requested and obtained the applicant’s consent to do so. Two other police officers arrived at the scene and assisted with the search. According to police reports, the officers located, among other things, multiple driver’s licenses for both the applicant and Ms. Dosunmu, numerous bank cards and pre-paid debit cards, and “a plethora” of documents relating to banking information and money transfers. The banking documents were found throughout the vehicle. Police also reported finding a document later determined to be a fraudulent tax refund claim bearing the applicant’s former residential address in Texas. Upon reviewing text messages on the applicant’s phone, police found a text from one “Coker” that had been sent to the applicant earlier that day. It provided instructions concerning the transfer of $20,000 to various bank accounts.
[3] On the basis of what they found in the search, the officers concluded that the applicant and Ms. Dosunmu appeared to be involved in “some sort of fraud.” After contacting a financial crimes detective with the Austin Police Department, the officers at the scene seized a number of the items they had found. As well, the officers were put in contact with Agent Witt, a local United States Postal Service (“USPS”) investigator who was investigating a fraud ring with Nigerian and Canadian connections. (The applicant’s vehicle had previously come to the attention of Agent Witt and an alert had been set up requesting law enforcement to notify him of any contact with the vehicle.)
[4] Agent Witt attended at the scene of the roadside stop a short time after being contacted. After seeing what the police had found, he concluded that the evidence was suggestive of identity theft. All of the items seized by police were turned over to Agent Witt.
[5] Agent Witt interviewed Ms. Dosunmu at the scene. According to Agent Witt’s report of the interview, Ms. Dosunmu acknowledged that she was in possession of multiple pieces of identification bearing other people’s personal information. She stated that the applicant (who she claimed to have met the week before at a nightclub) had taken several photographs of her and then returned with the pieces of identification. She did not know how the applicant had obtained the pieces of identification. Ms. Dosunmu stated that, on the applicant’s instructions, she had used the identification to wire more than $20,000 on his behalf to Canada. He had told her that the funds related to the sale of motor vehicles.
[6] Two police officers were sent to the residential address in Austin the applicant had provided to police at the roadside (an address that also appeared on a number of documents found in the applicant’s vehicle) – 305 East Yager Lane, Apartment 1122. They found two men there – Ibrahim Alu and Basit Akintonde. (It appears that Akintonde was simply visiting the apartment. He does not figure further in the narrative.)
[7] Alu agreed to be interviewed. He also agreed that the police and Agent Witt (who also attended) could search the apartment.
[8] Alu said he was renting the apartment with one George Ismail. He said the applicant was a friend who would stay there from time to time and that he had a key to the apartment. Upon searching the apartment with Alu’s consent, investigators found, among other things, hundreds of pre-paid credit cards in a safe in a bedroom as well as medical forms containing personal identification information. Many of the documents were scattered around the apartment in plain view. Alu denied any knowledge of the cards or the documents and suggested that they may belong to the applicant. Investigators recovered similar documents from Alu’s vehicle, which they also searched with Alu’s consent.
[9] Meanwhile, the police at the scene of the roadside stop allowed the applicant and Ms. Dosunmu to go on their way.
[10] On June 12, 2015, the applicant entered Canada at Windsor, Ontario, using a fraudulent United States passport. On June 26, 2015, he made a claim for refugee protection in Canada under his true identity. In August 2016, the applicant and Ms. Dosunmu were married in Brampton, Ontario. In May 2017, the applicant, sponsored by Ms. Dosunmu, submitted an application for permanent residence in Canada.
[11] The US investigation into the stolen identity refund fraud ring continued. In April 2016, authorities returned to the East Yager Lane apartment and searched it as well as Alu’s vehicle pursuant to a warrant. They also seized Alu’s cell phone.
[12] In September 2017, the applicant, Ibrahim Alu, George Ismail, and George Najomo were indicted in the U.S. District Court (Western District of Texas, Austin Division) and charged with various offences relating to identity theft and fraud. A warrant for the applicant’s arrest was issued but has not been executed. The other three individuals were all arrested in Texas.
[13] On April 9, 2019, an officer with the Canada Border Services Agency (“CBSA”) wrote a report under subsection 44(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”) stating the officer’s opinion that the applicant is inadmissible under paragraph 37(1)(a) of that Act as a result of his membership in a criminal organization – namely, the identity theft ring in Texas. The report was referred to the Immigration Division (“ID”) of the Immigration and Refugee Board of Canada for an admissibility hearing.
[14] The hearing before the ID took place on February 11, 2021. While not necessarily conceding the existence of a criminal organization as alleged, the applicant did not seriously contest this either. Rather, his position was that there was insufficient credible or trustworthy evidence establishing his involvement in the alleged criminal activities of the organization.
[15] In a decision delivered orally on March 19, 2021, the ID member found that the applicant is inadmissible under paragraph 37(1)(a) of the IRPA as a result of his membership in a criminal organization. She also issued a deportation order. As a result of this determination, on April 16, 2021, the applicant’s claim for refugee protection was terminated under paragraph 104(2)(a) of the IRPA. As well, on April 23, 2021, the applicant’s application for permanent residence was refused on the same basis.
[16] In the present application, the applicant seeks judicial review of the ID’s determination that he is inadmissible to Canada on grounds of organized criminality. He has also applied for judicial review of the refusal of his application for permanent residence (IMM-3143-21) and of the termination of his claim for refugee protection (IMM-3456-21). IMM-3143-21 was heard together with the present matter. It will be addressed in separate reasons released concurrently with these reasons. IMM-3456-21 has been held in abeyance pending the determination of the present matter.
[17] As I explain in the reasons that follow, the applicant has not persuaded me that the ID’s decision is unreasonable. While the ID’s reasons for finding him inadmissible due to organized criminality are far from perfect, perfection is not the standard (Canada (Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 91). I agree with the applicant that the ID made several unreasonable factual determinations but none are sufficiently material to call the reasonableness of the decision as a whole into question. Furthermore, read in light of the evidence before it, the positions of the parties, and the nature of its statutory task, the ID’s reasons adequately explain the bases of its decision. Despite the flaws in the decision, it is possible to discern a reasoned explanation for the result that rests on a rational chain of analysis and a reasonable assessment of the evidence. This is sufficient to meet the reasonableness standard (Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67 at para 30; Alexion Pharmaceuticals Inc v Canada (Attorney General), 2021 FCA 157 at para 7). This application for judicial review will, therefore, be dismissed.
II. BACKGROUND
A. The Minister’s Allegations
[18] The Minister’s allegations in support of the contention that the applicant is inadmissible on the basis of organized criminality were the same as those set out in the US indictment.
[19] In summary, the Minister alleged that the applicant (along with his three co-conspirators in the United States) obtained personal identification information from unsuspecting third parties in order to commit stolen identity fraud – including by submitting fraudulent tax returns claiming refunds and by obtaining credit cards in the names of the victims. This was accomplished by collecting the personal information of patients who had attended at medical facilities in the Austin, Texas area. The group had access to these facilities through a cleaning company owned and operated by George Najomo, one of the co-accused on the US indictment.
[20] It was alleged that Najomo would copy patient information forms and provide the forms to his co-conspirators. Information obtained in this way would then be used to claim fraudulent tax refunds and for other fraudulent purposes. For example, it was alleged that in 2015, 56 fraudulent tax returns using stolen personal identification information were filed requesting refunds totalling $827,230. These refunds were to be deposited directly into a bank account associated with at least one of the bank cards seized from the applicant on April 16, 2015. (None of these refunds were actually paid because the returns had been flagged as being suspected to be fraudulent.) Furthermore, personal information on patient information forms found in the East Yager Lane apartment was linked to 50 suspicious tax returns filed in 2014 and 2015. As well, examination of pre-paid debit cards that had been seized from the applicant on April 16, 2015, determined that 18 of them had been created using the personal identifying information of other individuals.
[21] On the basis of these allegations, the applicant and his three co-accused were charged in the United States with conspiracy to fraudulently obtain funds using stolen personal identification information. The conspiracy was alleged to have continued from at least January 2013 until at least April 28, 2016. In addition, the applicant was separately charged with opening two bank accounts fraudulently using the stolen personal identity information of two individuals and with submitting a fraudulent tax return in the name of a third individual. The other three alleged co-conspirators also faced separate charges in the same indictment.
[22] In support of the allegation that the applicant is inadmissible under paragraph 37(1)(a) of the IRPA, the Minister tendered the following documentary evidence before the ID:
a) Copies of first-hand narrative reports from the police officers involved in the events on April 16, 2015 (the day the applicant’s car was stopped and searched and Alu’s apartment was also searched) as well as from Agent Witt, the USPS investigator who attended at the scene of the various searches that took place that day.
b) Copies of various administrative documents generated by the Austin Police Department in connection with the investigation.
c) Copies of photographs of various credit and debit cards.
d) Copies of transaction records for various Bank of America bank accounts.
e) A redacted patient information sheet with handwritten notes on it.
f) A copy of an affidavit sworn on April 21, 2016, by Jonathan Gebhart, a Special Agent with the Internal Revenue Service Criminal Investigation Division.The affidavit was prepared in support of an application for search warrants for 305 East Yager Lane, Apartment 1122, Austin, Texas (identified as the residence of George Ismail and Ibrahim Alu) and for Alu’s vehicle.It provided a detailed account of the investigation into the applicant and other individuals allegedly involved in the identity theft and fraud ring up to the date the affidavit was sworn.This included analysis of the evidence that had been seized in April 2015 from the applicant, his vehicle, and the East Yager Lane apartment.
g) A copy of the US indictment dated September 19, 2017, charging the applicant and his co-accused.
h) A copy of the US warrant for the applicant’s arrest dated September 19, 2017.
i) A copy of a press release from the United States Attorney’s Office (Western District of Texas) dated September 27, 2017, announcing the arrests of Najomo, Alu, and Ismail.The press release also stated that authorities were “still looking to arrest” the applicant.
j) Copies of miscellaneous filings from the criminal proceedings against the applicant’s co-accused.This included a memorandum filed on behalf of Alu at his sentencing hearing in which it was contended that the applicant was the “schemer in chief” of the identity fraud ring and that he had “conned everyone including his victims and co-conspirators.”
k) A copy of a press release from the United States Attorney’s Office (Western District of Texas) dated April 27, 2018.The press release states that in January 2018 Alu and Ismail had each pled guilty to one count of conspiracy to commit fraud.It also states that on April 27, 2018, Alu had been sentenced to imprisonment for eight years and Ismail had been sentenced to imprisonment for seven years.As well, both were ordered to pay joint and several restitution in the amount of $1,358,489.(Other documents suggested that Najomo had absconded after being released on bond.There was no information in the record concerning any final disposition of the charges against him.)
B. The Applicant’s Response to the Allegations
[23] The applicant denied having committed the criminal conduct alleged by the Minister.
[24] Prior to the hearing, the applicant produced certificates from Peel Regional Police, the RCMP, the FBI, and the State of Texas confirming that he did not have a criminal record in either Canada or the United States.
[25] The applicant also produced court filings relating to his divorce proceedings in Texas. The documents indicated that, while living in Texas, the applicant had married in July 2013 but he and his wife had separated in February 2015 and divorce proceedings were commenced at that time. The applicant’s wife had sought divorce on the grounds that the applicant had failed to disclose to her that he was already married to another woman in Nigeria. These documents were meant to corroborate the applicant’s account that he had stayed at the East Yager Lane apartment only occasionally because of his separation from his wife, as set out below. According to the applicant’s testimony, he had had to move out of the last place he shared with his wife in April 2015.
[26] The Minister called the applicant as a witness in the ID proceeding.
[27] The applicant testified that he had arrived in the United States in 2012 as a visitor. He did not have status there but the plan was for his wife to sponsor him. The applicant and his then wife had lived together at two different addresses in Texas – the first for about three years and the second for only a few months before they separated. The applicant testified that he was friends with Ibrahim Alu and that Alu had let him stay at his apartment in April 2015 when he had nowhere else to go after he and his wife separated. The applicant denied ever having had a key to the apartment. He testified that he knew George Ismail, who was Alu’s roommate. He also acknowledged having met George Najomo, a friend of Alu’s who had visited the apartment a couple of times when he was there, but said he knew nothing about his cleaning business.
[28] The applicant agreed that he had been stopped by police in Austin, Texas on April 16, 2015, and that Ms. Dosunmu was with him. He testified that Ms. Dosunmu was visiting friends in Austin and the two of them had only just met. He denied that he was staying at the East Yager Lane apartment at that particular time (although, as noted above, he stated that he had stayed there for approximately two weeks earlier that month). He agreed that the police had searched his car with his permission. However, the applicant denied all knowledge of the items the police claimed to have found in the search. In fact, he denied that anything at all had been found by police or seized from his car or his person. He denied consenting to the search of any of his electronic devices and, in any event, the police did not search his devices that day. He also stated that Ms. Dosunmu had told him that she did not say the things attributed to her by Agent Witt in his report. (Ms. Dosunmu did not testify at the ID hearing.)
[29] The applicant also testified that, when he stayed at the East Yager Lane apartment, he never saw any of the items investigators claimed to have found there on April 16, 2015. In any event, he knew nothing about these things. Contrary to Alu’s suggestion to the police, the applicant denied that any of the items police found in the apartment belonged to him. When asked if he had ever observed anything suspicious going on in the apartment, the applicant stated only that there were often different people coming and going. He did not know what they were doing because, when he was there, he minded his own business. It was only in retrospect, having read the Minister’s disclosure, that he started to think this might be suspicious.
[30] The applicant denied having had any contact with Alu or Ismail since he left the United States for Canada in June 2015.
C. The Submissions of the Parties
[31] Citing Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40, counsel for the Minister acknowledged that the burden was on the Minister to establish reasonable grounds to believe that the applicant is inadmissible on the basis of organized criminality under paragraph 37(1)(a) of the IRPA. Counsel explained that the reasonable grounds to believe standard is “not a high standard of proof and requires something more than a mere suspicion but less than [the] standard applicable in civil matters which is balance of probabilities.” Counsel for the Minister submitted that, in essence, “reasonable grounds to believe exist where there is an objective basis for the belief which is based on compelling and credible information.” Counsel for the Minister also noted section 173 of the IRPA, which provides that the ID is “not bound by any legal or technical rules of evidence” and that it “may receive and base a decision on evidence adduced in the proceedings that it considers credible or trustworthy in the circumstances.”
[32] After reviewing the allegations summarized above, as support for the Minister’s allegation that the applicant is inadmissible due to organized criminality, counsel for the Minister placed particular reliance on (1) the Austin Police Department reports relating to the April 16, 2015, traffic stop; (2) the investigation report prepared by Agent Witt (the USPS investigator); (3) the affidavit of Special Agent Gebhart (the IRS investigator) in support of the application for the search warrant; and (4) the US indictment.
[33] Counsel for the Minister submitted that, when read in chronological order, these documents “outline the genesis of the investigation into the fraudulent activity.” The various reports by investigators “are internally cohesive and reflect very similar information,” tracing the evidence of the fraudulent activity from its seizure to its analysis by investigators. Counsel submitted that USPS Agent Witt and IRS Special Agent Gebhart had extensive and specialized training and experience in fraud investigations. Further, they had “no vested interest in the outcome of this matter.” On the other hand, the applicant “does very much have a vested interest in the outcome of this proceeding.” Counsel observed that while the applicant “denies his wrongdoing he has proffered no supporting documentation.” Counsel submitted that the evidence adduced by the Minister should be given greater weight than the applicant’s testimony.
[34] Counsel for the Minister also noted that, to establish inadmissibility, it is not necessary to establish that criminal charges have been proven or even laid (although in the present case the evidence established that the applicant had been charged in the United States).
[35] In sum, according to counsel for the Minister, the evidence adduced by the Minister is credible and trustworthy and it establishes all the requisite elements of inadmissibility under paragraph 37(1)(a) of the IRPA on the applicable standard of proof of reasonable grounds to believe. The applicant’s evidence, on the other hand, is neither credible nor trustworthy and should be rejected.
[36] In response, counsel for the applicant (not Mr. Kingwell) submitted that the Minister had failed to adduce credible or trustworthy evidence establishing the applicant’s membership in the criminal organization. According to the applicant’s counsel, the Minister “posits that the U.S. government has put forward all these affidavits but these affidavits contain statements that are naked, uncorroborated, without any witness brought before Madam Member today to test the veracity of this evidence.” The Minister’s evidence is only “circumstantial” and “does not show an actual involvement.” As well, the various reports relied on by the Minister were inherently unreliable because there were “several inconsistencies” between them, in particular relating to events on April 16, 2015. Furthermore, doubt was cast on the credibility and trustworthiness of the police reports of the traffic stop because the initial officer had engaged in racial profiling when he decided to pull the applicant over. Counsel also contended that the Minister’s case was deficient because none of the items allegedly seized from the applicant on April 16, 2015, had been produced. Moreover, there was no original documentation to establish the applicant’s connection to the various bank cards attributed to him or to the accounts he allegedly controlled.
[37] Counsel for the applicant contended that, to the extent that the evidence demonstrated the existence of a fraud ring, it was Alu who was the principal perpetrator. Alu was trying to shift blame onto the applicant, who was wholly innocent of any involvement. The applicant’s counsel also noted that the criminal activity had continued in Texas well after the applicant had relocated to Canada.
[38] In sum, according to counsel for the applicant, the evidence relied on by the Minister “reeks of a crusade to point fingers at [the applicant] without evidence to support or corroborate it.” In the absence of direct testimony to support the Minister’s allegations, the applicant’s denials should be preferred over the Minister’s evidence. Finally, the applicant’s counsel pointed to the applicant’s “clean criminal record” in Canada and, especially, in Texas, “where this indictment supposedly exists.”
III. DECISION UNDER REVIEW
[39] The presentation of evidence and submissions was completed on February 11, 2021. The ID member reserved her decision. She delivered her decision orally on March 19, 2021. The member concluded that the Minister had established that the applicant is inadmissible under paragraph 37(1)(a) of the IRPA on the basis of organized criminality.
[40] The member’s reasons appear to have been delivered extemporaneously. They are poorly organized and, at times, are difficult to follow. Nevertheless, the following key findings concerning the evidence can be discerned in the reasons:
The occurrence reports by members of the Austin Police Department, the report by USPS Agent Witt, and the affidavit sworn by IRS Special Agent Gebhart are credible and trustworthy.The information provided in these documents was “logical and internally consistent” and “those involved in the investigation appear to be experienced, well-educated in their fields, and therefore most likely very knowledgeable.”Accordingly, the member accepted as accurate the accounts set out in these documents of the search of the applicant’s vehicle and belongings on April 16, 2015, as well as the search of the East Yager Lane apartment the same day.The member also accepted that the documents established the existence of a large scale stolen identity fraud ring and that the evidence seized from the applicant implicated him in that ring.
There was no basis to conclude that the applicant had been targeted on April 16, 2015, because of racial profiling on the part of the police.On the contrary, by his own admission, the applicant’s manner of driving had given the police a valid basis to pull him over.
On April 22, 2015, the IRS deposited a fraudulent tax refund to a Bank of America bank account associated with a pre-paid debit card that had been found in the applicant’s possession during the April 16, 2015, traffic stop.The member found this evidence to be credible and trustworthy and to link the applicant directly to the fraudulent activities in question.
Text messages extracted from Alu’s cell phone (which had been searched in 2016 pursuant to the warrant obtained by Special Agent Gebhart) established communications between Alu, Ismail, and the applicant concerning a Mastercard obtained fraudulently in 2016.This “kind of information” confirmed the relationship between the applicant and the others and indicated that the applicant was “in fact engaged and aware of the fraudulent activity that was going on.”
On three occasions the applicant was observed in his vehicle outside a residence “believed to be directly linked to the Canadian-Nigerian fraud ring operating in Austin, Texas.”
The sheer number of documents and other evidence seized by the police “suggest that more likely than not there have been numerous instances where [the applicant has] engaged in the fraudulent activities alleged in the US indictment.”
Alu’s allegation that the applicant is the leader of the criminal organization is not credible given the evidence that he was “capable of engaging in very significant misrepresentation” in his refugee claim and his overall lack of credibility.The evidence suggests instead that Alu was the leader of the organization and the applicant was second-in-command.
The police clearance certificates produced by the applicant were not inconsistent with the Minister’s allegations given that there was no suggestion that the applicant had been arrested or convicted in the United States.Furthermore, in the absence of information about the exact parameters of the records searches, the certificates did not raise any issue about the credibility or trustworthiness of the Minister’s evidence that there are outstanding charges against the applicant in Texas.
For several reasons, the applicant was “lacking in credibility.”
o The applicant’s denial of knowledge of the group and its involvement in fraud was “very difficult to believe under the circumstances” and “there is credible and trustworthy evidence to suggest otherwise.”
o With respect to the traffic stop on April 16, 2015, the member found “the evidence provided by the Minister’s counsel to be a more accurate and trustworthy account of what actually transpired” than the applicant’s account.The member found it “difficult to believe” that the police would say there were documents in the applicant’s car when there weren’t.In short, the police reports describing the discovery of incriminating evidence in the applicant’s car were more believable than the applicant’s denial.
o With respect to Ms. Dosunmu’s statement to Agent Witt on April 16, 2015, the member found that Agent Witt had recorded it accurately, Ms. Dosunmu would have told the applicant what she had said to Agent Witt, and the applicant’s claim that she had denied saying anything to Agent Witt “impacts on [the applicant’s] credibility.”This was because the member did not accept that Ms. Dosunmu “would have been untruthful” to the applicant.
o The applicant’s claim that he did not make a refugee claim in the United States because he did not know he could was not credible given how widely known the US refugee process is and given that he had lived with two individuals (Alu and Ismail) who had made refugee claims there.Since they were all friends, the member assumed that Alu and Ismail would have told the applicant about their own refugee claims.Likewise, the applicant’s claim that he did not make a refugee claim in the US because he feared being detained was not credible because the applicant would have known that neither Alu nor Ismail had been detained even though they had sought refugee protection.The applicant had been untruthful in providing these explanations.
o The member found that the applicant had likely stayed at the East Yager Lane apartment “over a rather significant period of time” and not only occasionally, as he had testified.It was therefore “somewhat unbelievable” – even “extremely difficult to believe” – that the applicant would have lived at the East Yager Lane apartment but not have noticed the hundreds of bank cards and patient information forms scattered around the apartment in plain view, as observed by investigators on April 16, 2015.
o Given that documents connected to fraudulent activities were found in the applicant’s car and that he was living with two friends who were subsequently convicted of fraud, it was “very difficult to believe” that the applicant was not involved in fraudulent activity as well.
[41] On the basis of this assessment of the evidence, the member concluded that the applicant was a member of a criminal organization consisting of himself, Alu, Ismail and Najomo and that the organization had engaged in various fraudulent activities employing stolen personal identification information.
[42] In summary, the member found that the Minister had provided evidence found to be credible and trustworthy “with respect to the allegation” and, on the basis of this evidence, the member was satisfied that the Minister had discharged “the onus of proving the allegation is correct.” Accordingly, the member concluded that the applicant is inadmissible due to organized criminality under paragraph 37(1)(a) of the IRPA.
IV. STANDARD OF REVIEW
[43] The parties agree, as do I, that the ID’s decision should be reviewed on a reasonableness standard. Judicial review on this standard considers not only the outcome but also the justification for the result (where reasons are required) (Canada Post Corp at para 29). A reasonable decision “is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Vavilov at para 85). A decision that displays these qualities is entitled to deference from the reviewing court (ibid.). On the other hand, “where reasons are provided but they fail to provide a transparent and intelligible justification [. . .], the decision will be unreasonable” (Vavilov at para 136).
[44] When applying the reasonableness standard, it is not the role of the reviewing court to reweigh or reassess the evidence considered by the decision maker or to interfere with factual findings unless there are exceptional circumstances (Vavilov at para 125). At the same time, reasonableness review is not a rubber-stamping process; it remains a robust form of review (Vavilov at para 13). The reasonableness of a decision may be jeopardized where the decision maker “has fundamentally misapprehended or failed to account for the evidence before it” (Vavilov at para 126).
[45] The onus is on the applicant to demonstrate that the ID’s decision is unreasonable. To set aside a decision on this basis, the reviewing court must be satisfied that “there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency” (Vavilov at para 100).
V. ANALYSIS
[46] The applicant challenges the reasonableness of the ID’s decision on several grounds that I would summarize as follows: (1) the member failed to explain in a transparent and intelligible way why she found the documents tendered by the Minister to be credible and trustworthy and failed to link many key findings of fact to the evidence before her; (2) the member’s adverse findings with respect to the applicant’s credibility are unreasonable because they are based on unfounded assumptions, irrelevant considerations, and inconsistencies with other evidence whose credibility and trustworthiness was not explained; and (3) the member failed to explain in a transparent and intelligible way why the evidence found to be credible and trustworthy provided reasonable grounds to believe that the facts constituting inadmissibility occurred.
[47] Before addressing these grounds, it may be helpful to set out the legal framework within which a determination of inadmissibility under paragraph 37(1)(a) of the IRPA is made.
A. The Legal Framework
[48] The Minister alleged that the applicant is inadmissible to Canada on grounds of organized criminality under paragraph 37(1)(a) of the IRPA. This provision states:
Organized criminality
Activités de criminalité organisée
37 (1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for
37 (1) Emportent interdiction de territoire pour criminalité organisée les faits suivants :
(a) being a member of an organization that is believed on reasonable grounds to be or to have been 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 punishable under an Act of Parliament by way of indictment, or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence, or engaging in activity that is part of such a pattern;
a) être membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle se livre ou s’est livrée à des activités faisant partie d’un plan d’activités criminelles organisées par plusieurs personnes agissant de concert en vue de la perpétration d’une infraction à une loi fédérale punissable par mise en accusation ou de la perpétration, hors du Canada, d’une infraction qui, commise au Canada, constituerait une telle infraction, ou se livrer à des activités faisant partie d’un tel plan;
[49] Thus, to establish that a foreign national or permanent resident is inadmissible under paragraph 37(1)(a) of the IRPA, the Minister must establish (1) that there is (or was) a criminal organization (as defined) and (2) that the person in question is (or was) a member of it. The Minister bears the onus of establishing inadmissibility (Pascal v Canada (Citizenship and Immigration), 2020 FC 751 at para 14).
[50] As noted above, the applicant did not seriously contest that there was an identity theft and fraud ring in Texas (as alleged) or that it met the definition of criminal organization. Rather, his position was that the Minister had failed to adduce credible or trustworthy evidence establishing his involvement in the activities of the group.
[51] Section 33 of the IRPA sets out the rules of interpretation that govern, inter alia, determinations under paragraph 37(1)(a) of that Act. It states:
33 The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur.
33 Les faits — actes ou omissions — mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés sur la base de motifs raisonnables de croire qu’ils sont survenus, surviennent ou peuvent survenir.
[52] Mugesera instructs that, in the present context, the “reasonable grounds to believe” standard “requires something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities [citations omitted]” (at para 114). In essence, “reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information” (ibid.). While the evidentiary threshold is not meant to be an onerous one for the Minister, at the same time, the reasonable grounds standard “operates as a protection against arbitrary, capricious or ill-founded state action” and is “an important and meaningful threshold” (Thanaratnam v Canada (Minister of Citizenship and Immigration), 2004 FC 349 at para 21; Pascal at para 16).
[53] In making its determination, the ID “is not bound by any legal or technical rules of evidence” and “may receive and base a decision on evidence adduced in the proceedings that it considers credible or trustworthy in the circumstances” (IRPA paragraphs 173(c) and (d)). Thus, the ID may consider evidence from sources that may not be acceptable in a court (Bruzzese v Canada (Public Safety and Emergency Preparedness), 2014 FC 230 at para 50; Pascal at para 15). This can include police reports (Pascal at paras 20-37), newspaper articles (Bruzzese at paras 57-58) and even a “true crime” book by a journalist (Pascal at paras 53-62), as long as the decision maker determines that the source is credible or trustworthy. Of course, this discretion to receive evidence must be exercised reasonably (Pascal at para 15; Stojkova v Canada (Citizenship and Immigration), 2021 FC 368 at para 15) and any exercise of discretion “must accord with the purposes for which it was given” (Vavilov at para 108).
[54] While the ID is thus granted a certain latitude in evidentiary matters, “the threshold of reasonable grounds to believe does not justify an absence of facts to ground the reasonable belief” (Ariyarathnam v Canada (Citizenship and Immigration), 2018 FC 162 at para 70). A finding of inadmissibility must be based on facts supported by evidence and those facts must give rise to more than a mere suspicion (Demaria v Canada (Citizenship and Immigration), 2019 FC 489 at para 66).
[55] In short, to conclude that an allegation of inadmissibility is established, the ID must conclude that the evidence it finds to be credible or trustworthy is compelling and credible and, further, that it provides an objective basis for the conclusion that the person concerned is inadmissible. To be reasonable, these determinations must be justified, transparent and intelligible.
B. The Grounds for Review
(1) The ID’s Assessment of the Minister’s Evidence
[56] The applicant contends that the ID’s assessment of the evidence relied on by the Minister to establish his inadmissibility lacks justification, transparency and intelligibility. In particular, the applicant submits that the ID treated all the evidence as equally relevant to the issue of whether he engaged in the conduct alleged against him when in fact the relevance of that evidence varies significantly. This, in turn, calls in