Litigant also defrauded court by submitting forged evidence and wrong list of medication he needed
The Federal Court has overturned a decision to stay the removal from Canada of a Nigerian man who committed credit card fraud, finding the decision lacked an internally coherent and rational chain of analysis.
In Canada (Public Safety and Emergency Preparedness) v. Imalenowa, 2022 FC 1286, Prince Uyi Imalenowa was a Nigerian citizen who filed a refugee claim in 2011. His claim was rejected, but two years later he was granted permanent residency through spousal sponsorship. His marriage lasted more than a year and ended in divorce.
In 2018, Imalenowa was convicted for fraudulently impersonating 50 people to obtain credit cards in their names. The Immigration Division issued a removal order on the ground of serious criminality. Imalenowa sought a stay order from the appeal division based on humanitarian and compassionate (H&C) grounds. As part of the application process, Imalenowa submitted a letter allegedly from his former spouse. However, the Immigration Appeal Division (IAD) eventually discovered that Imalenowa forged the signature of his ex-wife on the letter.
Despite the fraud, the appeal division granted a stay, finding sufficient H&C grounds based on Imalenowa’s “moderate establishment” in Canada and “hardship” he would suffer if removed to Nigeria. The appeal division found that Imalenowa could re-establish himself in Nigeria and earn an average person’s wage, but his medical conditions would be difficult to address because of the state of the Nigerian healthcare system. The appeal division explained that most Nigerians were required to pay for their own medications.
Wrong prescription list submitted
The Minister of Public Safety and Emergency Preparedness challenged the appeal division’s decision to grant a stay of Imalenowa’s removal from Canada. The Minister argued that the decision lacked internal rationality in how the IAD treated Imalenowa’s medical conditions and documents.
The Federal Court agreed, finding that the IAD misapprehended evidence on a central aspect of the decision. The decision was primarily based on an assertion that Imalenowa required prescription medication, but it turned out that the prescription records submitted to the IAD were not actually Imalenowa’s. The Federal Court pointed out that the IAD’s decision to grant a stay was largely based on the argument that Imalenowa would suffer hardship because of the difficulty in obtaining his required medications in Nigeria.
“Whether or not the respondent requires prescription medication is therefore central to the decision. Yet, and with respect, we do not know whether and to what extent prescriptions are needed and for what and in what amounts, frequency or otherwise,” the Federal Court observed.
The court concluded that the entirely inappropriate and inaccurate prescription record filed, and the obvious inattention to it by all parties, including the IAD, were sufficient grounds to grant the judicial review in favour of the Minister. The court remanded the case to a differently constituted IAD because the court was unable to consider whether the newly filed prescription list was sufficient to establish whether Imalenowa still required prescription medication.
Rehabilitation and reoffending
The IAD gave positive weight on Imalenowa’s rehabilitation despite its findings on his lack of credibility, the absence of remorse, lack of insight into his criminality, his moderate likelihood of reoffending, and his continued fraud by forging his ex-wife’s signature.
The Federal Court concluded that the IAD’s ruling that Imalenowa “has a moderate possibility for rehabilitation and poses a moderate risk of reoffending” in light of the findings on the fraudulent letter and lack of remorse was a fatal flaw in the logic of the IAD’s decision.
