Cordero v. Canada (Citizenship and Immigration), 2018 FC 24 : Decision Set Aside After Applicant Was Not Warned He Would Face Crimes Against Humanity Allegations

The Federal Court reviewed the refusal of Rey Cordero’s spousal permanent residence application. Mr. Cordero, a former member of the Armed Forces of the Philippines, was found inadmissible under paragraph 35(1)(a) of the IRPA after the officer found reasonable grounds to believe he was complicit in crimes against humanity committed by his infantry battalion. The Court granted judicial review because Mr. Cordero received no advance notice that complicity in crimes against humanity would be addressed at his interview or a meaningful opportunity to respond.

Key Principle

Even where the duty of procedural fairness owed to an overseas permanent residence applicant is relatively minimal, the applicant must know the case to meet and receive a meaningful opportunity to answer it. Where allegations involve complicity in crimes against humanity, their seriousness may require advance notice. Confronting an applicant with allegations during an interview may be insufficient when that interview is the applicant’s only opportunity to respond.

Background

Mr. Cordero, a citizen of the Philippines, served in the Armed Forces of the Philippines from 2006 to 2011, including with the 11th Infantry Battalion. The Battalion was known to have committed crimes against humanity where he had served.

After marrying Canadian permanent resident Christiene June Labestre in 2014, Mr. Cordero applied for permanent residence through spousal sponsorship. During processing, he was asked to complete a chart detailing his military service. Two years later, he was interviewed.

At the interview, the officer questioned him extensively about the Battalion and reports concerning human rights abuses. The officer found reasonable grounds to believe Mr. Cordero had been complicit in crimes against humanity and refused the application under paragraph 35(1)(a) of the IRPA.

Court Findings

• Military Information Request Did Not Provide Adequate Notice

The Court rejected the argument that being asked to provide routine military details should have alerted Mr. Cordero that he was suspected of complicity in crimes against humanity. Information about rank, unit, duties, commanders, and locations was different from notice that he had to defend himself against such an allegation.

• Raising Allegations at the Interview Was Insufficient

The officer disclosed the concerns only during the interview and asked Mr. Cordero to respond immediately to reports concerning the Battalion. Given the gravity and legal complexity of complicity under Ezokola, this did not provide a meaningful opportunity to prepare or obtain evidence answering the allegations.

• Existing CBSA Report Strengthened the Fairness Concern

More than a year before the interview, CBSA had prepared an inadmissibility assessment applying the six Ezokola factors and concluding there were reasonable grounds to believe Mr. Cordero was complicit. Although he was not necessarily entitled to the report itself, its substantive concerns could have been communicated beforehand. The absence of advance disclosure deprived him of an opportunity to present responsive evidence.

Outcome

The Federal Court granted judicial review on procedural fairness grounds and did not decide the remaining arguments concerning the War Crimes Act or reasonableness of the complicity finding. The refusal was set aside and the matter remitted to a different visa officer for redetermination. No question was certified.

Case Citation:

Cordero v. Canada (Citizenship and Immigration), 2018 FC 24 (CanLII)