Alabi v. Canada (Citizenship and Immigration), 2018 FC 1163 : Court Finds TRP Refusal Procedurally Unfair After Officer Relied on Undisclosed People-Smuggling Concern

Ayodeji Akanmu Alabi sought judicial review of the third refusal of his temporary resident permit application. The Federal Court allowed judicial review because the officer relied materially on an undisclosed concern that Alabi may have been involved in people smuggling. Although TRP proceedings attract a relatively low duty of fairness, the Court held that Alabi was entitled to know and answer this serious allegation.

Key Principle

Even in the highly discretionary TRP context, where the duty of procedural fairness is at the lower end of the spectrum, an applicant must know the case to be met and receive a fair opportunity to respond. An officer need not identify ordinary evidentiary deficiencies or provide a running score, but must disclose a serious concern based on information the applicant could not reasonably have known, particularly where that concern becomes material to the refusal.

Background

Alabi first came to Canada in 1998 and had extensive dealings with Canadian immigration authorities. His earlier TRP applications had already resulted in two judicial review proceedings. On the previous review, the Federal Court ordered another redetermination.

Alabi’s TRP application sought permission to return to Canada to support his Toronto health-care business, Jodal Health Care Inc. He submitted an affidavit, marriage certificate, letters from his wife and children, and awards and commendations.

The officer reviewed inconsistencies in Alabi’s historical descriptions of his family. Processing notes from a 2000 H&C application contained an internal concern that the case could involve people smuggling. The officer repeatedly relied on this concern, together with Alabi’s past misrepresentations, when concluding that compelling reasons for a TRP had not been established.

Court Findings

• People-Smuggling Concern Had to Be Disclosed

The Court accepted that Alabi should have known about inconsistencies between his current and previous descriptions of his family. However, suspected involvement in serious illegal activity through people smuggling was fundamentally different. The concern had existed internally since the 2000 H&C application but had never been communicated to him.

• Low Duty of Fairness Still Requires Notice of New Serious Concerns

TRP decisions are highly discretionary, applicants bear the burden of presenting compelling evidence, and officers need not provide opportunities to repair incomplete applications. Nevertheless, procedural fairness still requires disclosure where a concern relates to credibility, veracity, authenticity, or information the applicant could not reasonably know. Alabi therefore had to be given an opportunity to answer the people-smuggling allegation before it was used against him.

• Mandamus Was Not Appropriate

The Court declined Alabi’s request for mandamus because the result of redetermination was not certain. It also noted that the absence of evidence demonstrating why his presence was necessary to operate his Canadian business remained relevant. However, the officer’s inference that Alabi had concealed his immigration misrepresentations from his family merely because their letters did not discuss those matters was unwarranted.

Outcome

Judicial review was granted. The refusal was set aside and the TRP application was remitted to a different officer. Alabi was permitted to make written submissions concerning his family configuration and the people-smuggling concern. No question was certified and no costs were ordered.

Case Citation:

Alabi v. Canada (Citizenship and Immigration), 2018 FC 1163 (CanLII)