The Federal Court reviewed the
refusal of Zakari Abubakar Kyari’s application for criminal rehabilitation. Mr.
Kyari had been convicted in the United States in 2001 of credit card fraud and
impersonation. His rehabilitation application focused on the offence and the
substantial changes in his life since then, but the visa officer placed
significant weight on his failure to disclose the conviction in a 2009 Canadian
visa application. The Court held that procedural fairness required an
opportunity to explain his state of mind before that adverse conclusion was
made.
Key Principle
Where an officer assessing
criminal rehabilitation intends to attribute dishonest intent to an applicant
based on a previous immigration omission, procedural fairness may require
disclosure of that concern and an opportunity to respond. However, an officer
should not make a determinative finding about an applicant’s intention to
deceive when that specific issue was not meaningfully addressed in the
application without first allowing the applicant to explain it.
Background
Mr. Kyari, a Nigerian citizen,
travelled to the United States in 1999 for university. In 2001, at age 26, he
was convicted of credit card fraud and impersonation after attempting to
purchase more than US$20,000 in diamonds using stolen credit card information.
He pleaded guilty and received a custodial sentence, supervised release, and a
fine.
After returning to Nigeria in
2003, Mr. Kyari completed an accounting degree, married, volunteered, became an
ordained minister, pursued professional employment, and established a real
estate company. He lived without further criminal incidents in Nigeria.
In 2009, Mr. Kyari obtained a
Canadian temporary resident visa without disclosing his U.S. conviction. The
conviction was discovered at the Canadian border, and he voluntarily departed.
He applied for criminal
rehabilitation in 2013, providing extensive evidence about the offence, his
rehabilitation, employment, community involvement, education, finances, police
clearance, and letters of support. Although his materials mentioned the unsuccessful
2009 visit, they did not explain why the conviction had not been disclosed.
The application was refused in
January 2019. The officer concluded that Mr. Kyari had clearly not intended to
be truthful in 2009 and found that this undermined his stated responsibility
and remorse.
Court Findings
• 2009 Non-Disclosure Was
Relevant to Rehabilitation
The Court accepted that the
earlier omission was relevant. A central consideration in rehabilitation is
whether the foreign national is likely to reoffend. Failure to comply with
Canadian immigration requirements can inform that assessment, particularly where
the original criminal conduct involved fraud or dishonesty.
• Officer Made an Adverse
Finding About Intent
The problem was that Mr. Kyari’s
submissions focused principally on his U.S. conviction and subsequent
rehabilitation, while the officer focused on his state of mind when he failed
to disclose the conviction in 2009.
The Court rejected the Minister’s
characterization that Mr. Kyari was “doubling down” on an earlier
misrepresentation. He had disclosed that the attempted 2009 visit occurred.
Instead, the applicant and officer were working at cross-purposes: Mr. Kyari addressed
his criminal conduct and rehabilitation, while the officer focused on why he
omitted the conviction from his earlier visa application.
• Procedural Fairness Required
an Opportunity to Explain
The Court recognized that
rehabilitation applications generally attract a relatively limited duty of
fairness. Nevertheless, further communication may be required where an officer
questions the sincerity or credibility of an applicant’s evidence.
Before attributing deceptive
intent to Mr. Kyari and using that conclusion against his rehabilitation, the
officer should have allowed him to explain the 2009 omission. No interview or
procedural fairness letter was provided. Because the officer’s conclusion about
intentional dishonesty was central to the refusal and affected the assessment
of future reoffending, the failure to provide an opportunity to respond was
procedurally unfair.
Outcome
The Federal Court granted
judicial review and set aside the rehabilitation refusal. The matter was
returned to a different visa officer for redetermination. Since procedural
fairness was determinative, the Court did not address the remaining arguments
concerning reasonableness. No question was certified.
Case
Citation:
Kyari v. Canada (Citizenship and Immigration), 2020 FC 159 (CanLII)
Prepared by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian Immigration Case Law and
Statistics Analyst
