Although immigration applications are put through an extensive review and assessment process, decision-makers can reach the wrong conclusion. Decisions from the Immigration Division or Immigration Appeal Division can be reviewed by a judge (judicial review) to ensure a fair outcome. 

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 on the grounds of human rights violations.

The applicant was a former member of the Nigerian Police Force

The applicant was a Nigerian national. On October 23, 2017, he entered Canada from the United States border and claimed refugee protection. He faced challenges to his admissibility as a refugee because he had been a member of the Nigerian Police Force (NPF), which has an extensive history of alleged human rights abuses, violence, and torture. The applicant voluntarily became a member of the NPF in 2009 and left in December 2016.

Human or international rights violations are grounds for inadmissibility into Canada

The Immigration and Refugee Act sets out various grounds upon which an applicant is inadmissible for entry into Canada. The ground at issue in this case is set out in section 35(1) of the Act, which reads:

Human or international rights violations

35 (1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for

  1. committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act […]

The Immigration Division reviewed documents regarding the Nigerian Police Force, which detailed “allegations of torture or other ill-treatments in police custody.” However, there was no evidence that the applicant had been involved in these police activities. His roles included clerical officer, security guard, election duties, and a role on the Special Anti-Robbery Squad.

Determining whether an individual knowingly contributed to a crime or criminal purpose

The Supreme Court Case Ezokola v. Canada (Citizenship and Immigration) laid out the factors for assessing whether an individual knowingly contributed to crimes or a criminal purpose:

  • the size and nature of the (criminal) organization;
  • the part of the organization with which the refugee claimant was most directly concerned;
  • the refugee claimant’s duties and activities within the organization;
  • the refugee claimant’s position or rank in the organization;
  • the length of time the refugee claimant was in the organization, particularly after acquiring knowledge of the group’s crime or criminal purpose; and
  • the method by which the refugee claimant was recruited and the refugee claimant’s opportunity to leave the organization.

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 forward information on policing generally in Nigeria and how it is rife with corruption. They claimed the Special Anti-Robbery Squad was the primary perpetrator of killings and torture and found that the applicant was aware of the true nature of the Nigerian Police Force when he voluntarily joined.

In response, the applicant’s counsel argued that there was no evidence showing that the applicant had been complicit in the Nigerian Police Force’s crimes. He was with the Special Anti-Robbery Squad for less than a month, had not requested to be put into the position, and was not given a weapon to carry. The applicant stated he was unaware of the NPF’s reputation and argued that the evidence received by the Immigration Division was not trustworthy or credible. 

Immigration Appeal Division overturned initial decision, applicant deemed inadmissible

The Immigration Division found that the Minister of Citizenship and Immigration had not proven the applicant was complicit in the NPF’s crimes and therefore was not inadmissible to Canada. The Minister appealed to the Immigration Appeal Division. 

Although the Immigration Appeal Division adopted the findings on credibility made by the Immigration Division, the appellate division found the applicant was inadmissible.

Federal Court: Immigration Appeal Decision’s findings not supported by evidence

The applicant applied for judicial review of the Immigration Appeal Division’s decision. The Federal Court was quick to note the flaws in the IAD decision. It noted the IAD made general conclusions without evidentiary support.

For instance, the applicant’s three-year stint with the Nigerian Police Force led to the conclusion that he “was obviously exposed to the acts of other police officers and contributed to the objective of his organization.” The Federal Court noted this did not constitute a contribution, even if true. There was also no evidence to demonstrate that the applicant’s participation with the Special Anti-Robbery Squad coincided with any crimes committed by that unit.

Association with criminal organization does not equal complicity

The Federal Court ultimately found that the Immigration Appeal Division decision was unreasonable and did not use “an appropriate decision-making process.” The Court denounced the IAD decision as lacking intelligibility and endorsing a view of guilt by association. The Court noted that while the IAD assessed the Ezokola factors, it failed to consider the central principle of those factors, which is that “mere association with an organization will not suffice” when finding complicity. Instead, “[t]he individual must make a significant contribution to the crime or criminal purpose of a group. Not any contribution will do.”

As there were no reasonable grounds on the record that demonstrated the applicant was complicit in any crime against humanity, the application for judicial review was granted.

Contact Garson Immigration Law in Toronto for Assistance with Inadmissibility Issues

The talented immigration lawyers at Garson Immigration Law are highly experienced in overcoming inadmissibility issues for those looking to immigrate to Canada. We provide honest, trusted opinions and work with prospective newcomers before their arrival at the border to strategize the best chance of overcoming a finding of inadmissibility.

Garson Immigration Law develops effective, pragmatic solutions for clients in all immigration matters, including permanent residence, citizenship, and US immigration. For a confidential consultation on your immigration matter, please contact us online or call 416-321-2860.

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