The FCA said the tribunal ignored evidence that the claimant had been coerced into criminal activity
Canada’s immigration and refugee tribunal must reconsider a woman’s refugee claim after rejecting it based on her history of drug trafficking in Colombia, the Federal Court of Appeal has ruled, stating that the tribunal unreasonably ignored evidence that the woman was coerced into criminal activity by a narco-trafficking and guerrilla organization.
In its decision in Rodriguez Anzola v. Canada, the FCA said one of the key issues with the Immigration and Refugee Board of Canada’s analysis was the way it “ignored legal constraints on how – and what – it could lawfully decide.” This led the IRB to disregard evidence that the claimant was coerced into trafficking drugs, as well as evidence that she was coerced from citing duress as a defence when she was being prosecuted for trafficking in Colombia.
More broadly, the FCA ruled that when assessing whether a refugee claimant can be admitted to Canada, the IRB’s Immigration Division and Immigration Appeal Division are allowed to consider “extenuating circumstances that caused the legal defence of duress not to be practically available to the claimant in the foreign jurisdiction.”
The Immigration Division of the IRB rejected Nini Johana Rodriguez Anzola’s refugee claim in 2023, based on her criminal activity in Colombia. According to the FCA, Rodriguez Anzola’s husband had been working as a taxi driver in Colombia when one of his clients, who was part of the Revolutionary Armed Forces of Colombia (FARC), a narco-trafficking and guerrilla organization, demanded that the couple transport cocaine abroad.
Rodriguez Anzola and her husband ignored calls from FARC until November 2016, when her niece returned home from school crying, stating that men had approached her and threatened to hurt her cousins if Rodriguez Anzola’s husband did not answer his phone.
The couple eventually conceded to FARC and ingested cocaine before a flight to Spain. Colombian authorities apprehended them at the Bogota airport. At the end of Rodriguez Anzola’s husband’s house arrest, the family moved to another part of Colombia. However, FARC continued to pursue them, physically assaulting Rodriguez Anzola’s husband, his son, and the son’s girlfriend.
In 2022, Rodriguez Anzola and her husband separately arrived in Canada with some of the children and sought refugee protection. Her husband’s application was rejected due to his criminal history, and is currently under appeal.
Rodriguez Anzola’s application was also rejected due to her criminal history. At trial in Colombia, she had had the opportunity to cite duress as a defence. Instead, she pleaded guilty to the drug trafficking charges in exchange for a significantly reduced sentence. The Immigration Division of the IRB found that it would not be appropriate to speculate on the applicability of the duress defence and concluded that the Colombian and Canadian drug trafficking offences were equivalent.
According to the FCA, the Immigration Division’s conclusion relied heavily on the court’s 2016 decision in Beltran v. Minister of Citizenship and Immigration. Under s. 36(1)(b) of the Immigration and Refugee Protection Act, permanent residents and foreign nationals are inadmissible to Canada if they have been convicted of an offence abroad that, if committed in Canada, would constitute an offence punishable by a maximum prison term of at least 10 years. Through court decisions, a test was developed to determine whether an individual is inadmissible on these grounds. The test asks whether the acts committed outside Canada would have been punishable in Canada.
In Beltran, the Federal Court found that the equivalency test does not account for the Immigration Division considering a possible defence that was never raised in a foreign jurisdiction, in determining whether an offence would have resulted in a conviction in Canada.
Still, Rodriguez Anzola appealed, arguing that the Immigration Division should have meaningfully addressed her inability to cite duress as a defence at her criminal trial in Colombia.
The Federal Court declined to interfere with the Immigration Division’s decision, but said Rodriguez Anzola should have the opportunity to appeal the matter to the FCA. The Federal Court noted that a recent FCA decision, Canada (Public Safety and Emergency Preparedness) v. Gaytan, suggested that empowering the Immigration Division “to consider certain defences for the first time would not be excessively burdensome.”
The FCA said the Immigration Division’s decision to reject Rodriguez Anzola’s application was unreasonable for several reasons.
The court noted that she had testified about being unable to cite duress as a defence at trial because she was afraid that FARC would retaliate. She also pleaded guilty because she felt pressured to stay silent about FARC’s involvement, fearing that the group would engage in retribution against her family. The FCA said the Immigration Division completely disregarded this evidence by ignoring legal constraints on the approach it should take in its analysis.
The FCA also found that Beltran only had limited applicability to Rodriguez Anzola’s case, and that the Immigration Division should have engaged more with Gaytan instead.
“Gaytan was, no doubt… a relevant and critical constraint to what the [Immigration Division] could reasonably decide in this case,” the FCA said.
“In sum, what plagues the [Immigration Division’s] decision is the [Immigration Division’s]’s failure to account for significant legal and factual constraints that were relevant to what it had to decide in this case,” the FCA added. “In the result, I find that the [Immigration Division’s] decision fails to bear the hallmarks of reasonableness.”
In a statement on Tuesday, Downtown Legal Services director Prasanna Balasundaram, who represented Rodriguez Anzola, said the FCA’s decision “confirms that serious criminality inadmissibility under IRPA s. 36(1)(b) must be assessed consistently with basic principles of Canadian criminal law.
“Where the record raises a serious issue of duress, decision-makers must grapple with whether that defence was practically available in the foreign proceeding before treating the conviction as equivalent to a punishable Canadian offence,” Balasundaram added. “The FCA was clear that this does not turn immigration proceedings into appeals or retrials of foreign convictions. It ensures that, in exceptional cases, the equivalency analysis asks whether the conduct would truly have been punishable in Canada.”
Balasundaram declined to comment further because the matter is returning to the Immigration Division.
Spokespeople for the IRB and the Attorney General of Canada did not respond to requests for comment.
