Docket: IMM-2385-16
Citation:
2017 FC 26
Ottawa, Ontario, January 06, 2017
PRESENT: The
Honourable Madam Justice McDonald
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BETWEEN:
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EDISON JAMES
NWABUEZE
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
Mr. Nwabueze’s application for permanent
residence status in Canada on humanitarian and compassionate grounds [H&C]
was refused because of his involvement in the Movement
for the Actualization of a Sovereign State of Biafra [MASSOB]
while he was in Nigeria. He does not deny being involved with MASSOB. He denies
that MASSOB is a terrorist organization.
[2]
Mr. Nwabueze argues that the decision of the
Officer is not reasonable. He also submits that his procedural fairness rights
were not respected, as the Officer relied upon information to conclude that
MASSOB was a terrorist organization which was not shared with Mr. Nwabueze.
[3]
I agree that Mr. Nwabueze’s procedural fairness
rights were not respected and the judicial review is allowed on that basis.
[4]
If the Court finds that the duty of fairness has
been breached, it has no choice but to allow the application for judicial
review: see Canada (Attorney General) v Sketchley, 2005 FCA 404 at para
54.
[5]
In a similar context the court in Karakachian
v Canada (Citizenship and Immigration,) 2009 FC 948 stated:
[38]A person who appears before a government
authority is generally not on an equal footing and will generally not assume
that he is entitled to see documents that happen to be on the desk of the
person interviewing him. Since the officer did not expressly invite him to
consult the documents on which she was relying, the applicant could reasonably
believe that he was not permitted to see them. I realize that the duty of
fairness is relatively relaxed in the context of an application for permanent
residence. Nevertheless, the applicant’s ability to respond to the officer’s
concerns regarding the true nature of the ARF was seriously hindered by the
ignorance in which he was kept as to the documents consulted. Consequently, I
am of the opinion that the applicant’s right to procedural fairness was
infringed.
[6]
Here, the Officer conducted independent research
on MASSOB and relied upon that research to make an inadmissibility finding against
Mr. Nwabueze. The information was not disclosed to Mr. Nwabueze despite requests
that the Officer provide the information being relied upon.
[7]
In Fi v Canada (Minister of Citizenship and
Immigration), 2006 FC 1125 [Fi] at paras 8-10, the Court held that a
decision-maker violates an Applicant’s right to procedural fairness when they
consult extrinsic evidence found on the internet upon which the Applicant was
not given the opportunity to respond. While Fi was a Pre-Removal Risk
Assessment application, the same considerations would apply to the H&C
context.
[8]
Here, Mr. Nwabueze was not afforded the
opportunity to respond to the online information sourced by the Officer.
Further, the Applicant’s expert, Dr. Obiora Okafor, is faulted by the Officer
for failing to address the specific incidents of “terror”,
which the Officer relied upon to conclude that MASSOB was a terrorist
organization. However, because the information relied upon by the Officer was not
disclosed, the expert was not given an opportunity to address those specific incidents.
[9]
The information relied upon by the Officer was not
disclosed to Mr. Nwabueze prior to the decision being rendered. Given the
seriousness of being characterized as a member of a terrorist organization, Mr.
Nwabueze should have been provided with this information. Therefore, his
procedural fairness rights were not respected.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1.
The application for judicial review is granted.
The decision of the Officer is set aside and the matter is remitted for
redetermination by a different Officer;
2.
No question of general importance is proposed by
the parties and none arises; and
3.
There will be no order as to costs.
"Ann Marie McDonald"
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