Although immigration applications go through a thorough review and assessment process, decision-makers can come to the wrong conclusion. Decisions of the Immigration Division or the Immigration Appeal Division may be reviewed by a judge (judicial review) to ensure a fair result.
The Federal Court of Canada recently reversed a decision of the Immigration Appeal Division in the case of Eriator v. Canada (Citizenship and Immigration) which dealt with inadmissibility for violation of human rights.
The applicant was a former member of the Nigerian Police Force
The applicant was a Nigerian national. On October 23, 2017, he entered Canada through the United States border and applied for asylum. He was challenged over his eligibility as a refugee because he had been a member of the Nigeria Police Force (NPF), which has a long history of human rights abuses, violence and torture. The applicant voluntarily became a member of the FPN in 2009 and left it in December 2016.
Violations of human or international rights are grounds for inadmissibility to Canada
The Immigration and Refugee Lawsets out various grounds on which an applicant is inadmissible upon entry to Canada. The ground at issue in this case is set out in section 35(1) of the Act, which reads as follows:
Violations of human or international rights
35 (1) A permanent resident or foreign national is inadmissible for violating human or international rights for
- committing an act outside Canada that constitutes an offense under sections 4 to 7 of the Crimes Against Humanity and War Crimes Act […]
The Immigration Division reviewed documents relating to the Nigerian police, which detailed “allegations of torture or other ill-treatment in police custody”. However, there is no evidence that the applicant was involved in these police activities. His roles included desk officer, security guard, election duties and a role in the special anti-theft squad.
Determining whether a person knowingly contributed to a crime or a criminal purpose
The Supreme Court case Ezokola c. Canada (Citizenship and Immigration) set out the factors for assessing whether a person knowingly contributed to crimes or a criminal purpose:
- the size and nature of the (criminal) organization;
- the part of the organization with which the asylum seeker was most directly involved;
- the asylum seeker’s duties and activities within the organization;
- the claimant’s position or rank within the organization;
- the duration of the claimant’s stay in the organization, particularly after learning of the group’s crime or criminal purpose; and
- the method by which the asylum seeker was recruited and the possibility for the asylum seeker to leave the organisation.
Minister failed to prove applicant complicit in crimes: Immigration Division
Rather than focusing on the commission of the crimes themselves, the Immigration Division relied on how the applicant contributed to the crimes. They brought information about policing in general in Nigeria and how it is plagued by corruption. They claimed that the Special Anti-Robbery Squad was the main perpetrator of murder and torture and concluded that the claimant was aware of the true nature of the Nigerian Police when he voluntarily enlisted.
In response, the petitioner’s lawyer argued that there was no evidence to show that the petitioner had been complicit in the crimes of the Nigerian police. He had been with the special anti-theft squad for less than a month, had not asked to be appointed to this position and had not been issued a weapon to carry. The applicant stated that he was unaware of the reputation of the FPN and argued that the evidence received by the Immigration Division was neither trustworthy nor credible.
The Immigration Appeal Division overturned the initial decision, the applicant was found to be inadmissible
The Immigration Division found that the Minister of Citizenship and Immigration had failed to prove that the applicant was complicit in the crimes of the FPN and therefore was not inadmissible to Canada. The Minister appealed to the Immigration Appeal Division.
Although the Immigration Appeal Division adopted the credibility findings of the Immigration Division, the Appeal Division concluded that the applicant was inadmissible.
Federal Court: Findings of immigration appeal decision not supported by evidence
The applicant sought judicial review of the decision of the Immigration Appeal Division. The Federal Court was quick to notice the flaws in the IAD’s decision. She noted that the IAD had drawn general conclusions without supporting evidence.
For example, the Applicant’s three-year stint in the Nigerian Police Force led to the conclusion that he “was clearly exposed to the actions of other police officers and was contributing to the purpose of his organization”. The Federal Court noted that this did not constitute a contribution, even if it was true. Nor was there any evidence showing that the applicant’s participation in the special anti-theft squad coincided with crimes committed by that unit.
Association with a criminal organization does not mean complicity
The Federal Court ultimately found that the Immigration Appeal Division’s decision was unreasonable and failed to use “proper decision-making.” The Court denounced the IAD’s decision as lacking in intelligibility and endorsing a conception of guilt by association. The Court noted that although the IAD assessed the Ezokola factors, he failed to take into account the central principle of these factors, namely that “mere association with an organization is not sufficient” to find complicity. In place, “[t]The individual must make a significant contribution to the crime or criminal purpose of a group. No contribution will do.”
Since there were no reasonable grounds on the record demonstrating that the applicant was complicit in a crime against humanity, the application for judicial review was granted.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.