Date: 20080320
Docket: IMM-1705-07
Citation: 2008 FC 370
Ottawa, Ontario, March 20, 2008
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
AYODEJI
AKANMU ALABI
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Overview
[1]
The
Applicant is a citizen of Nigeria. In 1993, he was convicted in the United States (U.S.) of
conspiracy to distribute heroin. A section 44 report, of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA), was prepared, alleging
that the Applicant is criminally inadmissible to Canada under paragraph 36(1)(b)
of the IRPA, and referred to the Immigration Division.
[2]
Although
the Applicant stated, before the Immigration Division, that he applied for
rehabilitation, under paragraph 36(3)(c) of the IRPA, he admitted that
he had no documents demonstrating that he was deemed to be rehabilitated and
received no answer on his request for deemed rehabilitation. While the
Applicant may have suggested, in his July 2006 submissions, on his Humanitarian
and Compassionate (H&C) application, that he may be eligible to be deemed
rehabilitated, the Applicant only filed his application for rehabilitation, in
August 2007.
[3]
The
Immigration Division found that the Applicant was a person described in
paragraph 36(1)(b) of the IRPA. The Applicant admitted that he was
convicted, in the U.S., of conspiracy to
distribute heroin. The offence would be equivalent to paragraph 465(1)(c)
of the Criminal Code, R.S.C. 1985, c. C-46, conspiracy offence, which,
in the circumstances, could be punishable by imprisonment for life. There was
no evidence that the Applicant was deemed to be rehabilitated. The Applicant
was inadmissible under paragraph 36(1)(b) of the IRPA, and a deportation
order was issued, pursuant to paragraph 229(1)(c) of the Immigration
and Refugee Protection Regulations, S.O.R./2002-227 (Regulations).
II. Judicial Procedure
[4]
This
is an application pursuant to section 72(1) of the IRPA for judicial review of
the Immigration Division decision, dated April 17, 2007, wherein, the Applicant
was found to be a inadmissible, pursuant to paragraphs 36(1)(b) and
40(1)(a) of the IRPA.
III. Background
Criminal History in the United States
[5]
On
September 3, 1980, the Applicant, Mr. Ayodeji Akanmu Alabi, entered the U.S., as a student. He
entered, using the name Timothy Kayode Alabi, with the date of birth of January
29, 1958. (Application Record, U.S. Immigration Review, pp. 47-49; Tribunal
Record, Transcript of IRB Hearing, dated January 23, 2007, p. 122.)
[6]
On
June 27, 1989, the Applicant’s status was adjusted to that of a lawful
permanent resident. (U.S. Immigration Review,
above.)
[7]
On
August 10, 1993, the Applicant was convicted in the U.S. District Court,
District of Rhode Island, of the offense of conspiracy to distribute heroin,
pursuant to section 841.A-1 of the US Code. (U.S. Immigration Review, above.)
[8]
The
Applicant, known in the U.S., as Timothy K. Alabi, did
plead guilty to two counts of distributing heroin, in violation of 18 USC, 8,
which is Section 841.A-1, and was sentenced to serve 24 months in prison. (Tribunal
Record, Transcript of IRB hearing, dated January 23, 2007, p. 123.)
[9]
On
April 1 1994, the Immigration and Naturalization Service issued a Show Cause Order
charging the Applicant as deportable, pursuant to the Immigration and
Nationality Act of 1990 section 241(a)(2)(A)(iii) – Convicted of an
aggravated felony. (U.S. Immigration Review, above.)
[10]
On
February 13, 1997, after appealing to the Board of Immigration Appeals, it was
ordered that the Applicant be deported from the U.S. to Nigeria. (U.S. Immigration Review, above; it is to
be noted that the Transcript of IRB hearing, dated January 23, 2007, above,
p. 126, indicates that the Applicant was deported on February 20, 1997.)
Political Activist
[11]
The
Applicant, Mr. Akanmu Alabi, a citizen of Nigeria, was born on May 20, 1958.
[12]
Mr.
Akanmu Alabi was actively involved in pro-democratic activism, in Nigeria,
before his problems with the Security Agents began, forcing him to flee Nigeria in order to save his
life.
[13]
Mr.
Akanmu Alabi alleges to be a political activist and claims to have belonged to
the National Democratic Coalition (NADECO), the United Action for Democracy (UAD)
and the Committee for the Defense of Human Rights (CDHR). He was also a member
of the Social Democratic Party (SDP) during the third republic in Nigeria and campaigned
vigorously for Chief Moshood Abiola, the presidential candidate for the party.
[14]
As a
result of his political activities, to install democracy in Nigeria and his stand against the
military government, Mr. Akanmu Alabi was arrested on several occasions,
beaten, tortured and sustained severe injuries while in detention.
[15]
Mr.
Akanmu Alabi alleges to have been warned, subsequent to his release, by officials
with the State Security Service (SSS), loyal to his cause, that his name had
been forwarded to the office of the head of state, in Abuja, as a prime trouble-maker.
It is they who advised him to leave the country.
[16]
With
the help of a good friend at the Security Agency, he purchased a British
Passport with which he traveled to Canada.
[17]
Mr.
Akanmu Alabi arrived at the Pearson International Airport, in Toronto, on January 17, 1998. Shortly after his
arrival, on January 20, 1998, he made a refugee claim on the basis of his fear
of persecution, due to his political opinion, perceived political opinion and
membership in a particular social group. Mr. Akanmu Alabi did not disclose in
his refugee claim that he had previous convictions in the U.S. or that he had used an
alias and a different date of birth.
[18]
On April 13,
1999, the
Convention Refugee Determination Division, of the Immigration and Refugee Board,
determined
that Mr.
Akanmu Alabi
was not a Convention Refugee due to a political change of
circumstances, in Nigeria.
[19]
On
July 7, 1999, Mr.
Akanmu Alabi
applied to Citizenship and Immigration Canada (CIC) to be
considered a Post-Determination Refugee Claimant, in Canada. Mr. Akanmu Alabi, again,
neglected to indicate his prior convictions and alias to the Canadian
authorities.
[20]
On
January 29, 2000, Mr.
Akanmu Alabi
received a Post Claim Determination Refugee decision, wherein,
his application was dismissed as it was not received in time.
[21]
Mr.
Akanmu Alabi
sought judicial review of the decision to dismiss his
application. Justice Francis C. Muldoon, in an Order, dated March 2, 2001,
allowed the judicial review, quashed and set aside the decision and returned
the matter for redetermination. (Alabi v. Canada (Minister of
Citizenship and Immigration), [2001] F.C.J. No. 294 (QL).)
[22]
Subsequently,
Mr. Akanmu
Alabi was
approved to enter Canada on H&C grounds. (Transcript of IRB
hearing, dated January 23, 2007, above, p. 120.)
[23]
On
January 16, 2003, Mr.
Akanmu Alabi
was granted exemption, pursuant to section 25 of the IRPA, to
allow for processing of his application for permanent residence from within Canada. Mr. Akanmu Alabi did
not disclose, for a third time, his previous conviction or his alias.
(Application Record, Applicant’s Affidavit, sworn July 3, 2007, para. 3.)
[24]
In
April 2006, CIC discovered that Mr. Akanmu Alabi had previously been convicted
and sentenced to jail in the U.S. CIC also learned that Mr. Akanmu Alabi was
deported from the U.S. to Nigeria upon completion of his sentence, which was
for two years. When CIC confronted Mr. Akanmu Alabi, he admitted that he
had not been forthcoming and explained that he had neglected to previously
disclose that he had fled persecution in Nigeria. At this time, Mr. Akanmu Alabi asked that he
be considered rehabilitated. (Applicant’s Affidavit, above, paras. 4 & 5.)
[25]
On
April 17, 2007, the Immigration Division, deemed Mr. Akanmu Alabi to be a
person, described in paragraphs 36(1)(b) and 40(1)(a) of the IRPA
and, therefore, found him inadmissible to Canada. (Transcript of IRB Hearing, dated
April 17, 2007, above, pp. 112-114.)
[26]
On
April 25, 2007, Mr. Akanmu Alabi commenced an application for judicial review.
IV. Decision under Review
[27]
The
Immigration Division was satisfied that Mr. Akanmu Alabi is a foreign national as
described in paragraph 36(1)(b) of the IRPA, inadmissible to Canada on
grounds of serious criminality, convicted of an offence outside Canada, that,
if committed in Canada, would constitute an offence under an Act of Parliament,
punishable by a maximum term of imprisonment of at least ten years. In
accordance with paragraph 229(1)(c) of the Regulations, a deportation
order was issued against him. (Transcript of IRB Hearing, dated April 17, 2007,
above, p. 114).
[28]
Furthermore,
the Immigration Division also determined Mr. Akanmu Alabi to be a person
described in paragraph 40(1)(a) of the IRPA. A foreign national,
inadmissible for misrepresentation for directly or indirectly misrepresenting
or withholding material facts relating to a relevant matter that induces or
could induce an error in the administration of the Act; therefore, in
accordance with paragraph 229(1)(h) of the Regulations, Mr. Akanmu Alabi
was excluded from Canada (Transcript of IRB Hearing dated, April 17, 2007, above,
p.112.)
V. Relevant Legislation
[29]
The
applicable statutory provisions of section 36 of the IRPA, are:
|
36. (1) A permanent resident or a
foreign national is inadmissible on grounds of serious criminality for
…
(b)
having been convicted of an offence outside Canada that, if committed in
Canada, would constitute an offence under an Act of Parliament punishable by
a maximum term of imprisonment of at least 10 years; or
…
(3)
The following provisions govern subsections (1) and (2):
…
(c)
the matters referred to in paragraphs (1)(b) and (c) and (2)(b)
and (c) do not constitute inadmissibility in respect of a permanent
resident or foreign national who, after the prescribed period, satisfies the
Minister that they have been rehabilitated or who is a member of a prescribed
class that is deemed to have been rehabilitated;
|
36. (1) Emportent
interdiction de territoire pour grande criminalité les faits suivants :
[…]
b) être déclaré coupable, à l’extérieur
du Canada, d’une infraction qui, commise au Canada, constituerait une
infraction à une loi fédérale punissable d’un emprisonnement maximal d’au
moins dix ans;
[…]
(3) Les dispositions suivantes
régissent l’application des paragraphes (1) et (2) :
[…]
c) les faits visés aux alinéas (1)b)
ou c) et (2)b) ou c) n’emportent pas interdiction de
territoire pour le résident permanent ou l’étranger qui, à l’expiration du
délai réglementaire, convainc le ministre de sa réadaptation ou qui
appartient à une catégorie réglementaire de personnes présumées réadaptées;
|
The Immigration Division determined the U.S. offence to be
equivalent to paragraph 465(1)(c) of the Criminal Code, R.S.C. 1985,
c. C-46:
|
465.
(1) Except where otherwise expressly provided by law, the following
provisions apply in respect of conspiracy:
…
(c)
every one who conspires with any one to commit an indictable offence not
provided for in paragraph (a) or (b) is guilty of an indictable
offence and liable to the same punishment as that to which an accused who is
guilty of that offence would, on conviction, be liable; and
|
465. (1) Sauf disposition
expressément contraire de la loi, les dispositions suivantes s’appliquent à
l’égard des complots :
[…]
c) quiconque complote avec quelqu’un de
commettre un acte criminel que ne vise pas l’alinéa a) ou b)
est coupable d’un acte criminel et passible de la même peine que celle dont
serait passible, sur déclaration de culpabilité, un prévenu coupable de cette
infraction;
|
VI. Issue
[30]
Did the Immigration Division err in law by
finding the Applicant to be a person described under paragraph 36(1)(b)
of the IRPA?
VII. Standard of
Review
[31]
Justice
Max M. Teitelbaum of the Federal Court determined that the appropriate standard
of review, wherein, a foreign national is inadmissible under the Immigration
Act due to a criminal conviction, was that of reasonableness simpliciter.
(Wynter
v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 1107 (QL), paras. 20-22.)
VIII. Analysis
Preliminary Comments
[32]
Mr.
Akanmu Alabi also challenged the Immigration Division’s determination that he
is inadmissible under paragraph 40(1)(a) of the IRPA. The challenge was
dismissed by the Federal Court. Mr. Akanmu Alabi cannot now challenge paragraph
40(1)(a) determination in this proceeding.
Paragraph 36(1)(b)
- Criminal inadmissibility finding properly made
(a) Treatment
of potential admission of deemed rehabilitation
[33]
Mr.
Akanmu Alabi asserts that the Immigration Division failed to recognize that the
Minister’s Representative did not dispute that he was rehabilitated and that he
had requested that the Minister deem him rehabilitated.
[34]
The
Minister’s Representative did not admit that Mr. Akanmu Alabi was
rehabilitated. Rather, in regard to the status of his request for
rehabilitation, Mr. Akanmu Alabi, admitted to the Minister’s Representative
that he had no documentation proving that he was deemed rehabilitated and
had not received a decision on his rehabilitation application. (Transcript
of IRB Hearing dated, April 17, 2007, above, pp. 135-136.)
(b)
Requirement to adduce evidence of deemed rehabilitation
[35]
Mr.
Akanmu Alabi asserts that the Immigration Division erred in requiring him to
adduce evidence of his deemed rehabilitation when paragraph 36(3)(c)
only requires one to satisfy the Minister of his rehabilitation.
[36]
Mr.
Akanmu Alabi’s assertion must fail for a number of reasons. The onus is on Mr.
Akanmu Alabi to establish that the Minister has deemed him to be rehabilitated.
This would necessarily involve adducing evidence before the Immigration
Division to establish that fact.
[37]
Secondly,
the Immigration Division may only assess the evidence that is put before it.
Unless evidence of the Minister’s positive finding of rehabilitation is
adduced, the Immigration Division cannot assess whether paragraph 36(3)(c)
of the IRPA applies. If he was indeed determined to be rehabilitated by the
Minister, it was incumbent on Mr. Akanmu Alabi to adduce that evidence before
the Immigration Division Member.
[38]
Mr.
Akanmu Alabi cannot be considered rehabilitated without adducing evidence that
such a finding was made. The Immigration Division cannot be faulted for
expecting the he adduce such evidence.
(c) Application for
rehabilitation does not prohibit decision on criminal inadmissibility
allegation
[39]
Mr.
Akanmu Alabi specified that, as his request for rehabilitation pre-dated the
hearing on paragraph 36(1)(b) of the IRPA allegation, the Immigration
Division was without jurisdiction to consider the paragraph 36(1)(b) of
the IRPA allegation until his application for rehabilitation was decided.
[40]
Mr.
Akanmu Alabi’s assertion fails in both fact and law. Factually, while Mr.
Akanmu Alabi may have referred to the possibility of his deemed rehabilitation
in submissions on his H&C application, he did not make a formal application
for rehabilitation, until August 2007, well after the Immigration Division determined
the inadmissibility allegation. There could be no basis for the Immigration
Division to defer a decision in light of a pending rehabilitation application
when no such application existed. (Affidavit of Heather Cumming, para. 5.)
[41]
Mr.
Akanmu Alabi’s argument, in law, that a pending rehabilitation application
prevents the Immigration Division from assessing the paragraph 36(1)(b)
allegation is inconsistent with the IRPA and the jurisprudence.
[42]
As
the Supreme Court of Canada explained in Canada (Minister of Employment and
Immigration) v. Chiarelli, [1992] 1 S.C.R. 711, a foreign national has no
right to continue to remain in Canada, particularly where he has been convicted
of a serious offence. This condition represents a legitimate, non-arbitrary
choice by Parliament of a situation in which it is not in the public interest
to allow a non-citizen to remain in the country. A person falling within the
class of foreign nationals described in paragraph 36(1)(b), who have
deliberately violated an essential condition under which they were permitted to
remain in Canada and are
subject to removal from Canada on that basis.
[43]
In
Medovarski v. Canada (Minister of
Citizenship and Immigration), [2005] S.C.R. 539, the Supreme Court of
Canada also recognized that the objectives as expressed in the IRPA indicate an
intent to prioritize security. This objective is given effect by preventing the
entry of applicants with criminal records, by removing applicants with such
records, from Canada. Viewed
collectively, these objectives of the IRPA and its provisions concerning
foreign nationals, communicate a strong desire to treat criminals and security
threats less leniently than under the former Act.
(i)
Provisions of the IRPA
[44]
Section
45 of the IRPA requires that the Immigration Division expediently assess
inadmissibility allegations put before it. No provision is made for the
Immigration Division to forestall the assessment of a criminal inadmissibility
allegation when a rehabilitation application is pending. Had Parliament
intended this, it could have specifically provided for it, but it did not do
so.
[45]
Paragraph
36(3)(c) is remedial in nature. It can apply to absolve a person from
the consequences of a criminal inadmissibility finding either before or after
the finding is made. Given that paragraph 36(3)(c) relief is available,
after a paragraph 36(3)(c) finding is made, there is no basis to
postpone assessing the paragraph 36(1)(b) allegation until the
rehabilitation application is assessed.
[46]
An
application for rehabilitation requires that it be submitted, assessed and that
a determination of rehabilitation be made. The threshold for demonstrating
rehabilitation is an onerous one. It would be inconsistent with the language
used in paragraph 36(3)(c) if a finding of criminal inadmissibility – is
the normal course – be postponed pending a potential favourable finding on
rehabilitation made on the basis of onerous criteria which may not be met.
[47]
It
is necessary, under paragraph 36(3)(c), that a rehabilitation
application be made even after the prescribed period has expired. If, before
that period expires, a decision is made to proceed with a criminal
inadmissibility allegation, to which paragraph 36(3)(c) could potentially
apply, and the person concerned applies for rehabilitation before the period
has expired, this could produce a stalemate where the Immigration Division cannot
assess the allegation pending a determination on a rehabilitation application
that cannot be determined until the prescribed period expires. Furthermore,
paragraph 36(3)(c) is similar to the provisions in subsections 34(2) and
35(2) of the IRPA. If filing subsections 34(2), 35(2) or paragraph 36(3)(c)
application could forestall an assessment of the inadmissibility allegation,
this could frustrate the government’s ability to deal with security and
criminal risks to Canada. Clearly, Parliament did not intend such a
result. A policy course was chosen by Parliament in this respect, wherein, an
application for rehabilitation requires that it be submitted, assessed and that
an actual determination of rehabilitation be made. It is for this reason that
no question will be certified in this regard as it was a policy choice.
(d) Governing
jurisprudence determines that Immigration Division has continuing jurisdiction
in light of rehabilitation application
[48]
In
Kalicharan v. Canada (Minister of Manpower
and Immigration), [1976] 2 F.C. 123 (T.D.), Justice Patrick M. Mahoney
explained that a Special Inquiry Officer did not need to await the decision of
an appeal from a criminal conviction before assessing whether a deportation
order should be issued in the circumstances. Justice Mahoney explained that the
inadmissibility assessment should proceed on the basis of the current
situation, and not on what it may be in the future.
[49]
In
Johnson v. Canada (Minister of
Citizenship and Immigration), 2008 FC 2, [2008] F.C.J. No. 10 (QL),
Justice Eleanor R. Dawson relied on Kalicharan, above, to hold that an
H&C Officer did not have to await the results of an appeal before deciding
whether the applying foreign national’s conviction rendered him criminally
inadmissible to Canada.
[50]
By
analogy, if an immigration decision-maker does not need to await the results of
an appeal making an inadmissibility assessment on the current circumstances of
the person concerned, the Immigration Division need also not await a decision
of the rehabilitation application when deciding a criminal inadmissibility
allegation.
VIX. Conclusion
[51]
Mr.
Akanmu Alabi has not established that the Immigration Division erred in finding
him inadmissible under paragraph 36(1)(b) of the IRPA. As such, there is
no basis to disturb the Immigration Division’s finding.
[52]
For
all the above reasons, the application for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS that
1.
The application for judicial
review be dismissed;
2.
No serious question
of general importance be certified.
“Michel M.J. Shore”
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