Docket: IMM-5272-16
Citation:
2017 FC 851
Ottawa, Ontario, September 25, 2017
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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DEMILADE KAYODE
OLADELE
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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
I.
Introduction
[1]
This is an application for judicial review,
pursuant to section 72 of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA], of a decision made by a delegate of the Minister of
Immigration, Refugees and Citizenship (the “Delegate”) to deny the Applicant’s
application for permanent residence on humanitarian and compassionate grounds
(“H&C application”) pursuant to subsection 25(1) of the IRPA.
II.
Background
[1]
The Applicant, Demilade Kayode Oladele, was born
in Nigeria and is a citizen of that country. He is married to a Canadian
citizen, Jennifer Oladele. They have four children: Jayden (the Applicant’s
stepson), Manessah, Ethan and Grace.
[2]
In October 2005, the Applicant entered Canada
with a fraudulent passport and made a refugee claim. In 2008, section 44
reports were written against the Applicant pursuant to paragraphs 35(1)(a) and
37(1)(a) of the IRPA. In August 2010, the Immigration Division (“ID”)
issued a deportation order based on inadmissibility under those two provisions.
The Applicant unsuccessfully sought judicial review of the referral to an
inadmissibility hearing and the subsequent determination. In October 2010, the
Applicant made a Pre-Removal Risk Assessment (“PRRA”) application but this application
was denied in December of that year.
[3]
The basis of inadmissibility is the Applicant’s
involvement with the Neo Black Movement of Africa (“NBMA”). The ID found
reasonable grounds to believe that the NBMA committed crimes against humanity,
and that the Applicant had membership in this organization and was complicit in
those crimes.
[4]
The Applicant married a Canadian woman after his
arrival in Canada, but they eventually separated. That woman applied to sponsor
him for permanent residence, but that application was denied when the Applicant
formed a common law relationship with his current wife.
[5]
The Applicant and his current wife met in 2008,
and became romantically involved in 2009. In April 2011, Mrs. Oladele gave
birth to their son Manessah. In July 2011, the couple married.
[6]
In October 2010, Mrs. Oladele applied to sponsor
the Applicant for permanent residence. In January 2011, the Applicant submitted
an H&C application, in which he requested a waiver of inadmissibility.
[7]
In December 2011, the Applicant was deported to
Nigeria. His pregnant wife, Jayden and Manessah visited him shortly thereafter.
Conditions in Nigeria made the trip difficult and the Applicant’s wife and children
returned to Canada without him.
[8]
In June 2012, Mrs. Oladele gave birth to Ethan.
[9]
In August 2012, Immigration, Refugees and
Citizenship Canada (“IRCC”) denied the sponsorship application because the
Applicant was residing outside of Canada.
[10]
In September 2014, the Applicant’s wife and
children joined him in Uganda, where he was living under a temporary student
visa. This caused the family financial and emotional hardship. Mrs. Oladele had
resigned from her job in Canada, sold their house and liquidated assets.
[11]
The trip to Uganda was difficult. The Applicant
and his wife had trouble finding employment. Jayden suffered a medical issue.
Mrs. Oladele began to experience trouble with her vision. She returned to
Canada for medical testing, where doctors determined that the vision impairment
might be caused by her diagnosis of multiple sclerosis. Against her doctor’s
wishes, Mrs. Oladele returned to Uganda. Mrs. Oladele also suffers from lower
back pain associated with a degenerative disc disease.
[12]
In December 2015, the Applicant requested an
urgent decision on the H&C application.
[13]
In April 2016, Mrs. Oladele was pregnant with
Grace.
[14]
By 2016, the family had exhausted their
finances. The Applicant’s student visa expired and he returned to Nigeria. His
family did not accompany him due to the poor and dangerous conditions in that
country. The family returned to Canada without him. They moved into a
one-bedroom apartment with Mrs. Oladele’s mother. Mrs. Oladele began a job
search despite her pregnancy and medical condition. Jayden experienced symptoms
of anxiety and paranoia.
[15]
In May 2016, the Applicant applied to this court
for a writ of mandamus but settled with the Minister of IRCC (the “Minister”).
[16]
In December 2016, the H&C application was
denied.
[17]
In January 2017, Mrs. Oladele gave birth to
Grace.
[18]
In May 2010, an IRCC Officer (the
“Officer”) referred the H&C application to the Delegate because she found
there may be sufficient grounds to grant the application, but did not have
delegated authority to waive inadmissibility. Prior to forwarding the
application to the Delegate, the Officer removed two files of country-conditions
documents from the Applicant’s submissions because “…the
factors supporting the positive decision were based on establishment, BIOC and
reunification in Canada.” The Officer found that there “was far more evidence supporting a positive decision than a
negative one”.
[19]
The Delegate’s reasons for decision contain
extensive quotes from the section 44 reports and the ID’s inadmissibility
decision. The Delegate notes the severity and seriousness of the activities the
Applicant admitted to partaking as a member of the NBMA, including rioting and
hijacking government vehicles. She also notes the NBMA’s role in aiding the
Applicant’s travel to Canada.
[20]
As well, the Delegate’s reasons contain
extensive quotes from Mrs. Oladele and her mother’s recent letters. These
submissions speak to the family’s hardships in Uganda, Jayden’s medical issue,
her pregnancy, unemployment, her medical challenges and the harm the family has
suffered.
[21]
The Delegate questions the Applicant’s decision
to marry and have children while under a deportation order, but finds no
evidence that the Applicant is a bad parent, or that the children’s best
interests are not served by his presence in their lives. She acknowledges that
growing up without a father is not ideal, but that is a situation children
regularly face in this day and age. She also recognizes the family’s financial
hardship, but finds this is mitigated by the availability of social assistance,
the ability for Mrs. Oladele to seek employment and the capacity of Jayden to
babysit his siblings.
[22]
The Delegate makes little mention of the
documentary evidence regarding conditions in Nigeria, or about the children’s
capacity to adapt to life there.
[23]
The Delegate found that the Applicant had
established himself financially and in the community during his time in Canada,
that he had no criminal record in Canada and there was no evidence he would
partake in any criminal activity should he return to Canada.
[24]
The Delegate concluded that the balance of
H&C factors was not in the Applicant’s favour. She noted that it was in the
best interests of the wife and children to not be separated from him; however,
she questioned his decision to marry and have children while under a
deportation order. Furthermore, she listed the factors against granting the
application: his admission to leading riots and hijacking public transportation
as a member of the NBMA; his travel to Canada was facilitated by the NBMA; he
submitted a fraudulent newspaper clipping to the ID; and he pursued a spousal
application under false pretenses.
III.
Issues
[25]
The issues are:
- Was there a
breach of procedural fairness due to:
- the Officer’s
removal of submissions prior to forwarding the file to the Delegate?
- the Delegate’s
comments regarding the Applicant’s family decisions?
- Was the Delegate’s
decision unreasonable due to:
- her failure to
particularize the interests of each child and consider country conditions
in the BIOC analysis?
- her failure to
reassess inadmissibility in light of Ezokola and B010?
- her weighing of
the factors for and against allowing the H&C application?
IV.
Standard of Review
[26]
The standard of review for procedural fairness
is correctness (Canada (Citizenship and Immigration) v Khosa, 2009 SCC
12 at para 43; and Mission Institution v Khela, 2014 SCC 24 at para 79).
[27]
A standard of reasonableness applies when
reviewing the exercise of decision pursuant to subsection 25(1) of the IRPA
(Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 [Kanthasamy]
at para 44).
V.
Analysis
A.
Procedural Fairness
[28]
In his written submissions, the Applicant argues
that he was denied procedural fairness because the Officer removed
country-conditions evidence from the file before referring the matter to the
Delegate, contrary to procedural guidelines, and then the Delegate rendered a
decision based on the incomplete record.
[29]
In the Respondent’s written submissions, the
Respondent argues that despite the missing two documents, the Delegate still had
sufficient country-conditions evidence before her when the decision was made
and the excluded submissions are not highly relevant to the final outcome.
[30]
However, during oral arguments the Applicant
agreed that all country-conditions submissions were in the Certified Tribunal
Record (“CTR”). The Applicant asked the Court to find on a balance of
probabilities that these materials were not before the Delegate when she made
her decision, on the grounds that the Officer mentioned removing
country-conditions documents before forwarding the matter to the Delegate.
[31]
In my opinion, there was no breach of procedural
fairness. The country-conditions evidence is in the CTR and was likely before
the Delegate when she made her decision.
[32]
In Baker v Canada (Minister of Citizenship
and Immigration), [1999] 2 S.C.R. 817 [Baker], the Supreme Court of
Canada (“SCC”) held that procedural fairness in H&C applications requires a
full and fair consideration of the issues, and a meaningful opportunity to
present the various types of evidence relevant to their case and have it fully
and fairly considered (Baker, at para 32). As well, a person’s
legitimate expectations may determine what procedures the duty of fairness
requires in given circumstances (Baker, at para 26).
[33]
Citizenship and Immigration Canada’s Inland
Processing Operational Manual, “Humanitarian and
compassionate consideration” [H&C Guidelines] provides that
if an officer refers a case to a delegated decision-maker, he or she must
forward a copy of the entire file including any submissions
related to the case, and the delegate must review all of the applicant’s
submissions:
Referrals to delegated decision-makers -
Procedures for officers
A case should be referred to a delegated
decision maker when both of the following apply:
• you do not have the delegated authority
to grant a requested exemption and
• you believe that the H&C
considerations might justify an exemption.
When referring a case to a delegated
decision maker do the following: […]
Review submissions from client to determine
if applicant remains inadmissible. If applicant remains inadmissible, ensure
all extrinsic evidence and applicant’s submissions are included in the package
to the delegated decision maker. […]
If the applicant is inadmissible […],
prepare a package containing copies of relevant documents for the H&C
decision-maker, including all of the following:
•a copy of the entire H&C case file
including any submissions related to the case
Procedures for the delegated
decision-maker
Receive the H&C application package from
the referring officer.
Review all material submitted by the
applicant […].
[34]
The Officer ignored these procedures and did not
forward two country-conditions documents to the Delegate. She reasoned that the
documents were not related to the factors supporting a positive decision. This
was not a reasonable decision to make, given that it could have caused the
Delegate to not have the entirety of the Applicant’s submissions before her
when she made her decision.
[35]
That mistake was exacerbated by the Respondent’s
failure to disclose the Officer’s decision to exclude evidence. Only through an
access to information request did the Applicant discover that evidence had been
removed from the file before it was sent to the Delegate.
[36]
In Agraira, the SCC stated that the
existence of administrative rules of procedure may give rise to a legitimate
expectation that such procedures will be followed (Agraira v Canada (Public
Safety and Emergency Preparedness), 2013 SCC 36 at para 95). As well, this
Court has previously applied the doctrine of legitimate expectations where
procedural guidelines have not been followed, even though such guidelines are
not legal precedents or binding on the Court (Serhii v Canada (Citizenship
and Immigration), 2016 FC 841).
[37]
Furthermore, in Pramauntanyath v Canada
(Minister of Citizenship and Immigration), 2004 FC 174, this Court held that
a decision made on the basis of an incomplete record constitutes a denial of
natural justice.
[38]
However, as noted above, the Applicant now
admits that all of his country-conditions submissions are present in the CTR. Except
for the Officer’s comment with respect to removing documents from the file,
there is nothing to suggest that the entirety of the Applicant’s country-condition
submissions were not before the Delegate when she made her decision. It is the
Delegate’s decision that is under review, not the Officer’s.
[39]
Therefore, the actions of the Officer did not
cause a breach of procedural fairness by the Delegate.
(1)
The Delegate’s Comments on the Applicant’s
Family Decisions
[40]
The Applicant submits that the Delegate’s
analysis is tainted by speculation and objections with respect to his decision
to marry and have children while subject to a deportation order. Furthermore,
procedural fairness required the Delegate to give the Applicant a chance to
respond to those objections.
[41]
The Applicant is referring to several comments
made by the Delegate with respect to the Applicant’s family decisions. For
example, the Delegate refers to the family’s decision to relocate to Uganda as
a “poor [decision] with respect to the care of their
children.” She “reads between the lines”
of a letter written by Mrs. Oladele’s mother, suggesting that the mother
disapproved of her daughter and son-in-law’s parenting decisions, and that Mrs.
Oladele and her mother have a “peculiar sense of
entitlement considering Mr. Oladele’s immigration history.” She also
states:
I note that Mr. and
Mrs. Oladele would have been aware that Mr. Oladele did not have legal status
and may never have been able to reside legally in Canada at the time they
decided to have children together.
[42]
As well, when balancing the factors weighing for
and against allowing the H&C application, the Delegate speculates that the
Applicant entered into marriage and had children because he hoped the family
ties would prevent his deportation:
Immigration decisions leading to his deportation
were underway at the time he decided to start a relationship with Mrs. Jennifer
Oladele and to have children. He continued to enlarge his family despite being
under a deportation order. Whether these decisions were motivated by a hope
that family ties would prevent his deportation is possible but regardless,
these behaviours are difficult to reconcile with someone who had the interests
of his own off-spring at heart.
While Mrs. Oladele’s current predicament is
very unfortunate, in large part it appears to be the result of her and Mr.
Oladele’s decisions, and when balanced against the negative factors in this
case, granting Mr. Oladele’s permanent residence on this basis is not, in my
opinion, justified.
[43]
The Respondent submits that the Delegate was
permitted to take into consideration the fact that the grounds of the H&C
application were the result of the Applicant’s own actions.
[44]
The Delegate was entitled to consider factors
such as parenting decisions and that the marriage and births occurred while the
Applicant was under a deportation order. As the Court stated in Legault v
Canada (Minister of Citizenship and Immigration), 2002 FCA 125 at para 19:
In short, the Immigration Act and the
Canadian immigration policy are founded on the idea that whoever comes to
Canada with the intention of settling must be of good faith and comply to the
letter with the requirements both in form and substance of the Act. Whoever
enters Canada illegally contributes to falsifying the immigration plan and
policy and gives himself priority over those who do respect the requirements of
the Act. The Minister, who is responsible for the application of the policy and
the Act, is definitely authorized to refuse the exception requested by a person
who has established the existence of humanitarian and compassionate grounds, if
he believes, for example, that the circumstances surrounding his entry and stay
in Canada discredit him or create a precedent susceptible of encouraging
illegal entry in Canada. In this sense, the Minister is at liberty to take into
consideration the fact that the humanitarian and compassionate grounds that a
person claims are the result of his own actions.
[45]
The Delegate’s comments were made in the context
of weighing all H&C factors for and against the Applicant. They do not show
an animus towards the Applicant, nor do they show that the Delegate approached
the analysis with the outcome already decided. I do not find there was any
apprehension of bias.
[46]
Here, the Applicant had the opportunity to make
submissions to explain the circumstances of his relationship. Furthermore, the
Delegate is not reaching a speculative conclusion, but is identifying the fact
that the Applicant decided to start a family while under a deportation order.
The Delegate was entitled to weigh those factors negatively. There was no
procedural unfairness.
B.
Reasonableness of the Decision
[47]
The Applicant makes several arguments regarding
the unreasonableness of the Delegate’s decision. First, the Delegate’s best
interests of the child (“BIOC”) analysis was flawed because the Delegate failed
to consider country conditions and particularize the interests of each child.
Second, the Delegate erred by declining to reassess inadmissibility in light of
the SCC’s decisions in Ezokola v Canada (Citizenship and Immigration), 2013
SCC 40 [Ezokola] and B010 v Canada (Citizenship and Immigration), 2015
SCC 58 [B010]. Finally, the weighing of the different H&C factors
was unreasonable for various other reasons.
[48]
The Respondent submits that the Delegate
reasonably assessed the children’s interests simultaneously, given their
similarities, and that country conditions were sufficiently considered.
Furthermore, the ID’s prior finding on paragraph 35(1)(a) inadmissibility is res
judicata and there is no issue with respect to the ID’s finding on
paragraph 37(1)(a) inadmissibility. Finally, the Court should not re-weigh the
different H&C factors.
[49]
In my opinion, the Delegate unreasonably failed
to particularize the interests of the Applicant’s unborn child and failed to
consider country conditions with respect to all the children’s interests.
Furthermore, the Delegate’s decision is unintelligible, because the impact of Ezokola
on her analysis is unclear. For those reasons, it is not necessary to
consider whether the Delegate’s balancing of the H&C factors was
reasonable.
(a)
The Best Interests of the Children
[50]
The Applicant argues that the Delegate failed to
particularize the best interests of the four children based on age, capacity,
needs, maturity, personal experiences and relationships with the Applicant. As
well, the Delegate failed to consider the BIOC with respect to the Applicant’s
evidence of conditions in Nigeria.
[51]
The Respondent argues that if there is no
distinguishing factor that makes one child’s interest different from that of
another, then it is reasonable to consider their interests together. As well,
the Delegate sufficiently considered country conditions in her analysis.
[52]
In my opinion, the Delegate reasonably singled
out the oldest child, who has issues specific to him, while giving similar
treatment to the two children who are close in age and experience. However, it
was unreasonable for the Delegate to not mention the needs specific to an
unborn child. It was also unreasonable for the Delegate to fail to consider
country conditions with respect to the BIOC.
[53]
A BIOC analysis requires “…attentiveness and sensitivity to the importance of the
rights of children, to their best interests, and to the hardship that may be
caused to them by a negative decision…” (Baker, at para 74).
[54]
Such an analysis is highly contextual because of
the multitude of factors that may impinge on the child’s best interest;
therefore, it must be done in a manner responsive to each child’s particular
age, capacity, needs and maturity (Kanthasamy, at para 25). The child’s
level of development will guide its precise application in the context of a
particular case (Kanthasamy).
[55]
The H&C Guidelines set out relevant
considerations for this inquiry (Kanthasamy, at para 40):
- the age of the child;
- the level of dependency between the child
and the H&C applicant;
- the degree of the child’s establishment
in Canada;
- the child’s links to the country in
relation to which the H&C assessment is being considered;
- the conditions of that country and the
potential impact on the child;
- medical issues or special needs the child
may have;
- the impact to the child’s education; and
- matters related to the child’s gender.
[56]
However, there is no specific formula or rigid
test to be used by immigration officers in a BIOC analysis; form should not be
elevated over substance (Semana v Canada (Citizenship and Immigration), 2016
FC 1082 at para 25).
[57]
Here, there are four children affected by the
H&C decision. Jayden is the Applicant’s stepson and was twelve years old
when the decision was made, Manessah was five years old, Ethan was four years
old and Grace was not yet born.
[58]
The Delegate refers to a psychological
assessment of Jayden that showed he suffers from sadness and anxiety due to the
absence of the Applicant. As well, she refers to a recent medical situation
with Jayden that occurred in Uganda. Furthermore, she notes that Jayden still
has ties to his biological father and grandmother within Canada. Finally, she
notes that it may be difficult for Jayden to obtain status in Nigeria. The
Delegate’s consideration of Jayden’s particular circumstances was reasonable.
[59]
The Delegate made fewer specific references to
Manessah and Ethan. The Delegate notes their confusion about having left their
home, family and friends behind, but that Jayden seems better able to
understand the situation.
[60]
I find that it was reasonable for the Delegate
to single out Jayden and treat Manessah and Ethan similarly. Jayden is much
older and has issues that are specific to him. Manessah and Ethan are about the
same age and their experiences are similar to each other in that they have
lived most of their lives without their father.
[61]
Grace, who Mrs. Oladele was pregnant with at the
time of the decision, is rarely mentioned in the Delegate’s reasons. The
Applicant argues that Grace has interests that are specific to her: she is an
infant that requires a great deal of attention and care; she has had no
physical contact with the Applicant; and she is too young to establish a
relationship with him via video communication. I agree.
[62]
The BIOC analysis applies equally to unborn
children (Hamzai v Canada (Minister of Citizenship and Immigration), 2006
FC 1108 at para 33). A failure to take into consideration the best interests of
an unborn child may, in and of itself, be unreasonable (Li v Canada (Public
Safety and Emergency Preparedness), 2016 FC 451 at para 25; and Melendez
v Canada (Public Safety and Emergency Preparedness), 2016 FC 1363 at paras
36-37).
[63]
However, the Delegate fails to discuss how her
decision impacts Grace. The Delegate simply mentions Grace’s interests together
with those of the other children. For example, the Delegate stated, “[t]here is therefore limited evidence before me that Mr.
Oladele is not a good parent and that the best interests of Jayden, Manasseh,
Ethan and the unborn child might not best be served by having him present in
their lives on a day-to-day basis in Canada.”
[64]
The Delegate’s reasons were not responsive to
Grace’s “…particular age, capacity, needs and maturity”
(Kanthasamy, at para 25). Nor were Grace’s interests “‘…well identified and defined’ and examined ‘with a great
deal of attention’ in light of all the evidence” (Kanthasamy at
para 39). The Delegate did not mention of the needs of an infant child, nor how
an infant child might be impacted by moving to Nigeria or her father living in
a different country. It was unreasonable to consider the needs of an infant
child as if they are the same needs as children who are 4-12 years older.
[65]
Furthermore, the Delegate fails to consider
country conditions in her BIOC analysis. In the section titled “Best interests of the children”, there is no mention
of conditions in Nigeria, except for a reference to Mrs. Oladele’s struggle to
adapt culturally and Jayden’s difficulty in obtaining status. In the section
titled “Country conditions in Nigeria”, the
Delegate does not consider how country conditions might impact the interests of
the four children, except for a quote from the Applicant’s own submissions
where he stated, “…The United States Department of
State reports that education in Nigeria is very poor….Both Mr. and Mrs. Oladele
state that it would not be in the children’s best interests to relocate to
Nigeria.” The Delegate does not explore this further nor does she
mention any of the four children in this part of her decision. Finally, in the
section titled “Balancing”, the Delegate fails
to mention country conditions entirely.
[66]
As noted above, the Delegate was required to be
alert, alive and sensitive to the children’s interests and examine those
interests in light of all the evidence. The Delegate was not sensitive to the
impact of country conditions on the children. Nor was the Delegate sensitive to
the particular interests of the Applicant’s unborn child.
[67]
Therefore, the Delegate’s BIOC analysis was
unreasonable.
(b)
Inadmissibility of the Applicant post-Ezokola and B010
[68]
The Applicant argues that the Delegate failed to
consider the grounds for inadmissibility in light of the SCC’s recent decisions
in Ezokola and B010, and that there is no clear determination of
the Applicant’s inadmissibility with respect to paragraph 35(1)(a) of the IRPA.
[69]
The Respondent argues that the ID’s findings of
inadmissibility are res judicata, and applicants cannot challenge the
validity of lawful decisions simply because of subsequent changes to the case
law. Furthermore, the finding of inadmissibility under paragraph 37(1)(a) of
the IRPA stands unimpeached.
[70]
In my opinion, the Delegate’s reasons are
unintelligible because the impact of Ezokola on the Applicant’s inadmissibility
and the Delegate’s H&C analysis are unclear.
[71]
Regarding B010, it was reasonable for the
Delegate to not mention this decision in her reasons. That case dealt with
paragraph 37(1)(b) of the IRPA. In particular, whether individuals could
be found to have engaged in human smuggling merely by aiding others without
seeking some financial or other material benefit. That case and provision are
dissimilar from paragraph 37(1)(a) of the IRPA, which deals with
membership in a criminal organization, and do not have a significant bearing on
the outcome of the Applicant’s H&C application.
[72]
In Ezokola, the SCC changed the test for
complicity with regard to crimes against humanity or war crimes. Complicity
requires a knowing and significant contribution to the crime or criminal
purpose of a group (Ezokola, at para 68). Prior to Ezokola, complicity
required personal and knowing participation (Ramirez v Canada (Minister of
Employment and Immigration), [1992] 2 FCR 306 at paras 4-22).
[73]
The new test for complicity applies to paragraph
35(1)(a) of the IRPA (Concepcion v Canada (Citizenship and
Immigration), 2016 FC 544 at paras 9-15). However, it does not apply to “membership in an organization” pursuant to paragraph
37(1)(a) of the IRPA (Chung v Canada (Citizenship and Immigration), 2014
FC 16 at para 84).
[74]
I disagree with the Respondent that the doctrine
of issue estoppel precludes a reassessment of the ID’s finding of paragraph
35(1)(a) inadmissibility.
[75]
The application of issue estoppel post-Ezokola
was considered by the Federal Court of Appeal (“FCA”) in Oberlander v
Canada (Attorney General), 2016 FCA 52 [Oberlander]. If the criteria
for issue estoppel are met, the Court retains a residual discretion to not
apply the doctrine where it could work an injustice (Oberlander at para
16, citing Danyluk v Ainsworth Technologies Inc, 2001 SCC 44 at para
80). In that case, the Court was satisfied that the application of issue
estoppel with respect to Ezokola worked an injustice and the applicant
was entitled to a re-determination of his citizenship revocation.
[76]
In Hamida v Canada (Citizenship and
Immigration), 2014 FC 98, this Court considered the application of issue
estoppel with respect to an H&C application that was refused prior to Ezokola.
The Court found that the decision needed to be reconsidered in light of the
change of law set out in Ezokola (Hamida at para 40).
[77]
Moreover, it is clear that decision-makers on
H&C applications have discretion to consider the impact of Ezokola
on previous findings of inadmissibility. Officers making these decisions must
be satisfied that applicants meet the requirements of the IRPA and
should consider the relevance of an intervening SCC decision (NK v Canada
(Citizenship and Immigration), 2015 FC 1040 at paras 19-21). A
H&C decision will be unreasonable if it is impossible to ascertain from the
decision-maker’s reasons whether the applicant’s inadmissibility may or may not
have been assessed upon the refined test set out in Ezokola (Aazamyar
v Canada (Citizenship and Immigration), 2015 FC 99 at paras 39-41).
[78]
In my opinion, the following statement of the
Court’s applies here (Sabadao v Canada (Citizenship and Immigration), 2014
FC 815 at para 22 [Sabadao]):
[…] res judicata cannot
be a bar in the context of an H&C
application. […] an officer ought to consider recent
jurisprudential developments, not for the purpose of indirectly or implicitly
overturning a final decision, but for the purpose of balancing that factor with
other H&C grounds.
[…] If, as a result of a new jurisprudential interpretation of an
inadmissibility provision, the Applicant’s refugee claim might have turned out
differently, it is obviously a factor that the Officer should have taken into
consideration in assessing his H&C claim.
[79]
The Delegate acknowledged Ezokola in
considering inadmissibility:
The admissibility hearing revealed that Mr.
Oladele’s evidence was contradictory. He admitted to membership in the NBMA and
his participation in riots and hijackings of public transportation (non-violent
according to Mr. Oladele) at the port of entry but when it became clear that
his status in Canada was at stake he changed his story in order to minimize his
participation in NBMA activities. Therefore the degree of his participation
in any activities which could render him complicit in crimes against humanity
remain nebulous. What is clear is that Mr. Oladele’s testimony on the
subject may not be reliable; for example the ID member found that Mr. Oladele
had submitted a fraudulent newspaper article in an attempt to exculpate
himself.
In terms of whether post-Ezokola Mr.
Oladele would be found to be inadmissible for complicity in crimes against
humanity, in my opinion, this question cannot be answered in the context of
this decision. If Mr. Oladele had arrived in Canada in 2013 instead of 2005
it is true that the Immigration Division’s analysis may have been slightly
different and a more detailed analysis of where and when crimes against
humanity in Nigeria in relation to where and when Mr. Oladele was a member of
the NBMA may have been adduced at the hearing (which sat on 4 separate
occasions) and may have been included in the ID’s reasons. This is not to say
that the information linking Mr. Oladele to crimes against humanity more
directly does not exist but it is not obvious from the record before me.
Regardless of the complicity in crimes
against humanity argument, in terms of the section 37 analysis there has been
no significantly new jurisprudence on membership in a criminal organization
which would call the member’s finding into question. I therefore accept that
Mr. Oladele is inadmissible, at a minimum, pursuant to section 37 of IRPA
for his involvement in a cult, namely the NBMA and that he was an active
participant in this criminal organization from which he derived significant
benefits.
[Emphasis added]
[80]
As well, in her list of factors against granting
the application, the Delegate mentions the NBMA twice:
- Mr. Oladele admitted to leading riots in
Nigeria when he was a member of the NBMA, recognizing that these riots
were often violent and to hijacking public transportation.
- Mr. Oladele’s travel to Canada was
facilitated by using a human smuggling network linked to the NBMA – an
organization which committed serious domestic crimes in Nigeria if not
crimes against humanity.
[81]
In my opinion, these reasons are unintelligible.
It is unclear to what the extent paragraph 35(1)(a) inadmissibility played a
role in the Delegate’s balancing of H&C factors. Clarity on this point is
imperative because participation in crimes against humanity is a serious
accusation that by itself could determine the outcome of an H&C
application. As well, a negative H&C decision would have significant impact
on the Applicant’s family and children. The Applicant is entitled to know the
weight given to Ezokola and paragraph 35(1)(a) inadmissibility and how
it was balanced against the H&C factors in his favour.
[82]
The impact of the change in law should be
balanced with other factors (Sabadao). However, there is no mention of Ezokola
in the Delegate’s final balancing of factors. The Delegate has merely found
that that “at a minimum” the Applicant is
inadmissible pursuant to paragraph 37(1)(a).
[83]
Furthermore, the Delegate’s balancing of
factors refers specifically to the Applicant’s admission to taking part in
riots, but earlier in her reasons she acknowledged that the Applicant no longer
admits this. She stated, “the degree of his
participation in any activities which could render him complicit in crimes
against humanity remain nebulous” and “this
question cannot be answered in the context of this decision.”
[84]
I understand that the Delegate was not in the
same position as the ID to conduct a comprehensive review of inadmissibility.
However, the Delegate must provide more clarity on how Ezokola impacted her
decision. This Court has suggested the following, more nuanced approach (Figueroa
v Canada (Citizenship and Immigration), 2014 FC 673 at para 31):
This requires the
Minister’s Delegate to do two things: (1) consider a prior inadmissibility
finding in light of any submissions to determine whether that finding still
stands; and (2) consider the gravity of the inadmissibility in light of the
submissions.
[85]
Even if the Delegate cannot determine
whether or not the previous inadmissibility finding still stands, the Applicant
and this Court need clarity with regard to the impact of Ezokola on the
Delegate’s decision. Paragraph 35(1)(a) inadmissibility has a significant
impact on this H&C application, and there is no question that the family
will suffer substantial hardship if the application is denied.
[86]
For those reasons, I find that the Delegate’s
reasons are unintelligible and therefore unreasonable.
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