Digests

Ali v. Canada (Minister of Citizenship and Immigration)

IMM-2993-99

Gibson J.

20/7/00

23 pp.

Judicial review of Immigration and Refugee Board, Appeal Division's decision allowing respondent's appeal, ordering deportation order be made against applicant --Applicant, Kenyan citizen, acquiring permanent resident status in Canada in 1992--During 1994 business trip to Kenya involved in confrontation with two other men, one of whom died of stab wound inflicted by applicant--Applicant charged with murder--Hastily departing Kenya, based on fear of police practices in Kenya--1995 Amnesty International Report indicating criminal suspects routinely tortured to extract confessions in Kenya--Applicant subsequently identified as permanent resident described in Immigration Act, s. 27(1)(a.1)(ii), i.e. committed act constituting offence under laws of place where act occurred that, if committed in Canada, would constitute offence punishable by maximum term of imprisonment of ten years or more--At inquiry, adjudicator concluding applicant not person described in s. 27(1)(a.1)(ii); holding Kenyan police statements not reliable because unsigned, deponents not subject to cross-examination, death penalty potential consequence of removal--On appeal on question of law, Tribunal reconvening to hear applicant's testimony--Majority preferring version of events disclosed by unsigned witness statements over applicant's version of events--Holding unsigned statements indicating originals attested to before witness, although nothing on face of statement indicating originals actually signed, let alone signed before witness--Saw no reason for need to flee Kenya, although Amnesty International Report before it--Application allowed based on error of law regarding onus--(1) Burden on respondent to establish before adjudicator that applicant person described in s. 27(1)(a.1)(ii)--Onus remained on respondent when decision appealed to Tribunal --Legal burden of proof not shifting, although may be conditional upon discharge of another evidential or legal burden by opposite party--Majority concluding adjudicator applied proper test in considering whether respondent acted in self-defence, since act not unlawful "had the respondent established that he acted in self-defence"--Constituting some evidence majority considered conditional burden on applicant--Burden on respondent, including burden to disprove self-defence--Majority not persuaded applicant "established that his version of events, on balance, is most likely what occurred"--Burden not on applicant to establish his version of events most likely what occurred, but on respondent to establish, on a balance of probabilities, version of events espoused by Kenyan police what had occurred--Majority of Tribunal erred in law in placing on applicant burden not properly his--(2) Hearing before Tribunal of appeal from adjudicator's determination trial de novo--Immigration Act, s. 72 authorizing Appeal Division to order reopening of inquiry for receiving of any additional evidence--Cannot read implication into s. 72 that Appeal Division precluded from requesting re-attendance of witness who appeared before adjudicator--Immigration Appeal Division Rules, R. 39 giving Appeal Division authority to take whatever measures necessary to provide for full, proper hearing and to dispose of matter before it expeditiously--Reasonably open to Appeal Division to require applicant to testify before it--That appeal on question of law only not restricting Appeal Division's discretion to provide for full, proper hearing--Credibility findings of majority reasonably open to them since heard testimony of applicant, observed demeanour--(3) Self-defence must be considered as part of decision about whether accused's act unlawful, not as separate matter following conclusion accused's act unlawful: R. v. Baker (1988), 45 C.C.C. (3d) 368 (B.C.C.A.)--Majority considering whether applicant's act unlawful before considering self-defence as separate matter--Nothing turning on failure to properly apply principle of law enunciated in R. v. Baker--(4) Majority appear to have ignored compelling evidence before them from Amnesty International as to why applicant would have felt need to flee Kenya--Error not central to decision, not reviewable--(5) Tribunal had before it sparse expert evidence regarding fatal wound, but concluded wound more likely intentional than accidental--Burden on respondent to provide such evidence--Tribunal's speculation as to whether fatal wound inflicted accidentally or intentionally, in absence of evidence, error in law--Immigration Act, R.S.C., 1985, c. I-2, s. 27(1)(a.1)(ii) (as am. by S.C. 1992, c. 49, s. 16), 72 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18)--Immigration Appeal Division Rules, SOR/93-46, R. 39.