Date: 20100222
Docket: T-459-09
Citation: 2010 FC 189
BETWEEN:
RASLAN, Nasoh
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
Respondent
REASONS FOR
JUDGMENT
LEMIEUX J.
Introduction and
Background
[1]
These
reasons support the decision I rendered from the Bench following a hearing held
in Montreal on January
21, 2010.
[2]
The
underlying matter is a judicial review application by Nasoh Raslan, a permanent
resident of Canada and a citizen of Syria, challenging the January
26, 2009 decision of Citizenship Judge, Renata Brum Bozzi (the Judge) who
dismissed his application for Canadian Citizenship filed on October 24, 2006.
The Judge was of the view he did not meet the residence requirement set out in
paragraph 5(1)(c) of the Act. She wrote:
My conclusion is based on the absence of
evidence indicating that Mr. Raslan established and maintained residence during
the relevant period for the number of days required in the Act and due to
the lack of credibility of the Applicant. [My Emphasis.]
[3]
The
principal issue in this application is whether this Court, in the exercise of
its discretion, should dismiss this judicial review application without
deciding it on the merits because Mr. Raslan did not have clean hands when he came
to this Court, having knowingly provided false information in his application
for Canadian Citizenship, in his Residence Questionnaire and to the Judge at
his hearing before her. The Applicant, in his affidavit in support of this
judicial review application acknowledged he lied about being a resident of Ontario when he
filed his third citizenship application with Citizenship and Immigration Canada
on November 6, 2006.
[4]
In
his affidavit, Mr. Raslan states: (1) He landed in Canada with his family on August
16, 1999; (2) He made his first application for Canadian Citizenship,
filing his application with Citizenship and Immigration Canada (CIC) in
Montreal but voluntarily withdrew it after he realised he did not have
sufficient days of presence in Canada; and, (3) He made his second citizenship
application on January 25, 2005, also filing it with CIC Montreal. He was asked
to complete a Residence Questionnaire which according to him meant “a delay of
years” in Montreal because he
would be required to appear before a Citizenship Judge. An immigration
consultant advised him to withdraw, what he claims to be a perfectly good
application meeting all of the residence requirements, in order to apply
through the CIC Mississauga where a special citizenship school “made the
treatment of files much faster.” He was advised by the immigration consultant
all he had to do is to say: “I have lived in Mississauga and get Ontario ID cards. He
[the immigration consultant] had an address for me to claim as my residence”.
[5]
As
a preliminary matter, the parties agreed this judicial review application
should be based on the documentation contained in the Certified Tribunal Record
(CTR) and not on the information appended to Mr. Raslan’s affidavit because of
the well-settled rule judicial review must, except in extraordinary circumstances,
be based on the record before the decision-maker and cannot be supplemented by
fresh evidence (see Canada
(Minister of Citizenship and Immigration) v. Mahmoud, 2009 FC 57 and Abderrahim
v. Canada (Minister of Citizenship and Immigration), 2004 FC 1486).
The deception
[6]
Mr.
Raslan’s deception centered on his place of residence within Canada.
[7]
In
his third citizenship application, he stated his home address was 305 – 30 Elm
Drive East, Mississauga, Ontario and he had
resided there since July 2006. On his application form, he signed the following
printed declaration: “The information provided is true, correct and complete.”
He understood: “That if I make a false declaration, or fail to disclose all
information material in my application, I could lose my Canadian citizenship
and be charged under the Citizenship Act.”
[8]
Mr.
Raslan was asked to fill a Residence Questionnaire which he completed on
August 1, 2008 also declaring the information provided was true, correct
and complete. The declaration on his Residence Questionnaire contained a
similar warning concerning the making of a false declaration. In that
questionnaire he stated between July 7, 2006 and October 2006 he lived at 811 – 30 Elm
Street
in Mississauga (CTR, page
29).
[9]
A
citizenship officer at CIC Mississauga noticed the discrepancy in the residence
information and in a note to the Citizenship Judge recommended his residency be
verified. The officer pointed out this address had been used by nine (9) other
people, the telephone number he gave had been used by 62 people and at ten (10)
other addresses and the mailing address he provided had been used by 127
people. She also noted the different address he provided in his Residency Questionnaire
had been used by 33 people. The CIC officer remarked Mr. Raslan provided a copy
of a lease for Unit 2003 – 30 Elm Street, Mississauga (CTR, page
25).
[10]
Mr.
Raslan was convened to a hearing before a Citizenship Judge on October 21,
2008: “because the Citizenship Judge needs more information to make a
decision about your citizenship application” (CTR, page 84). He appeared before
the judge. Her hearing notes are contained at CTR, pages 13 to 17.
[11]
My
reading of the Judge’s hearing notes tells me Mr. Raslan maintained his
deception before her. He was asked why he came to Ontario – he provided
an answer for himself and also in respect of his family. He provided false
information to the Judge on how he obtained the address mentioned in his
Citizenship application.
[12]
To
be fair, Mr. Raslan admitted to the Judge he had never lived at either 305-30 Elm
Street
or at 811
– 30 Elm Street; but he was asked about Unit 2003 – 30 Elm Street. In her
reasons for decision (CTR, page 20), the Judge observes he indicated to her his
current address was that apartment. Because of the contradictory information
about his residence, the Judge concluded she was not persuaded he met the
residency requirement and “a determinative factor in reaching this decision was
the lack of credibility of the Applicant.”
His recognition of his
deception
[13]
I
reproduce the following paragraphs of Mr. Raslan’s affidavit on this point:
64.
I felt
uncomfortable with the idea, but he assured me the process was simple and that
I wouldn’t be the first to apply through Mississauga even though my residence
and domicile was truly Montreal.
65.
I admit
to this Honourable court that I was not previously truthful in declaring my
residence as Ontario. I was, however, completely truthful in
all other respects. If any other information I have provided is erroneous, it
can only be an error made in good faith.
66.
I now
know that I definitely did not do the right thing, but at the time, I thought
that applying through Mississauga was simply a common and small
stretch to the rules, and I was exhausted by all the applications and the
complications so far.
[…]
76.
This is
when I met with Citizenship Judge Renata BRUM BOZZI. Throughout the hearing
I became more and more nervous as I realised that I should not have applied in Mississauga but rather simply pursued the
Montreal application. I was very uncomfortable
and did not quite know what to do.
77.
I was
now afraid to get in trouble for the place of residence issue and was afraid to
admit it. I realised the scale of my mistake, I felt trapped and put in this
delicate situation, by an immigration consultant whom I trusted. Had I fully
realised the consequences before, I definitely would not have pursued an
application in Mississauga and I definitely would have pursued my Montreal application.
78.
After my
hearing with Judge Renata BRUM BOZZI, I was thinking that all this could have
and should have been avoided and I was angry. I felt misled and caught in a
situation I did not want to be in, led there under false promises and mostly
false statements which downplayed the importance of respecting the
jurisdictions of the different Citizenship offices. [My emphasis.]
The Law
[14]
The
law is clear that the grant of judicial review is a discretionary remedy which may
be refused on grounds of equity – the lack of clean hands.
[15]
The
Federal Court of Appeal recently discussed this issue in Thanabalasingham v.
Canada (Minister of Citizenship and Immigration), 2006 FCA 14 (Thanabalasingham),
a case where the respondent admitted in a proceeding before the Immigration
Appeal Division, he had made false representations in earlier proceedings to
review his detention.
[16]
I
cite paragraphs 8, 9, 10 and 11 of Justice Evans’ decision:
8 The Judge certified the following
question for appeal:
When an applicant comes to the Court
without clean hands on an application for judicial review, should the Court in
determining whether to consider the merits of the application, consider the
consequences that might befall the applicant if the application is not
considered on its merits?
9 In my view, the jurisprudence cited by
the Minister does not support the proposition advanced in paragraph 23 of
counsel's memorandum of fact and law that, "where it appears that an
applicant has not come to the Court with clean hands, the Court must initially
determine whether in fact the party has unclean hands, and if that is proven,
the Court must refuse to hear or grant the application on its merits." Rather,
the case law suggests that, if satisfied that an applicant has lied, or is
otherwise guilty of misconduct, a reviewing court may dismiss the application
without proceeding to determine the merits or, even though having found
reviewable error, decline to grant relief.
10 In exercising its discretion, the
Court should attempt to strike a balance between, on the one hand, maintaining
the integrity of and preventing the abuse of judicial and administrative
processes, and, on the other, the public interest in ensuring the lawful
conduct of government and the protection of fundamental human rights. The
factors to be taken into account in this exercise include: the seriousness
of the applicant's misconduct and the extent to which it undermines the
proceeding in question, the need to deter others from similar conduct, the
nature of the alleged administrative unlawfulness and the apparent strength of
the case, the importance of the individual rights affected and the likely
impact upon the applicant if the administrative action impugned is allowed to
stand.
11 These factors are not intended to be
exhaustive, nor are all necessarily relevant in every case. While this
discretion must be exercised on a judicial basis, an appellate court should not
lightly interfere with a judge's exercise of the broad discretion afforded by
public law proceedings and remedies. Nonetheless, I have concluded in this case
that the Judge erred in the exercise of his discretion by failing to take
account of the remedy provided to Mr. Thanabalasingham by his right to appeal
to the IAD against his removal and the relevance of that appeal to an
assessment of the consequences if the Minister's opinion stands. [Emphasis
mine.]
Analysis and Conclusions
[17]
In
his submission in an effort to persuade me to hear his client’s appeal on the
merits, counsel for Mr. Raslan emphasized the deception was not material
because the required residency is a Canada-wide presence not confined to any
particular province. In his submission, Mr. Raslan’s deception was a technical
transgression of the Act citing Canada (Minister of
Multiculturalism and Citizenship) v. Minhas, 66 F.T.R. 155.
Moreover, Mr. Raslan did not deceive anyone about his physical presence in Canada during the
relevant period – his information on that point was accurate and truthful, he
submits. He argued the Citizenship Act itself contained provisions for
the transfer of files between Citizenship Courts. I note, however, that at the
time Mr. Raslan filed his Citizenship application with CIC Mississauga, the Citizenship
Regulations provided in section 3 such application is to be filed “with a
Citizenship Officer of the Citizenship Court that is the closest
to the place where the applicant resides”. Finally, he submitted his client
had suffered enough – he had been deceived and was ill advised. To make him
re-file his application would be unfair, he had waited long enough to become a
Canadian citizen.
[18]
As
guided by the Federal Court of Appeal’s decision in Thanabalasingham,
the Court is required to balance relevant factors. This is not a case of a
minor transgression; Mr. Raslan knowingly and wilfully embarked on a course of
conduct to deceive the Citizenship Court concerning his true
residence in Canada and this for
the purpose of jumping the queue. He falsified his citizenship application to
obtain an advantage which was not his in order thus to obtain a fundamental
right – Canadian citizenship. As was pointed out in Canada (Minister of Citizenship and
Immigration) v. Wysocki,
2003 FC 1172, [2003] F.C.J. No.
1505 a misrepresentation of a material fact includes an untruth, the withholding
of the truthful information or a misleading answer. Sanction for such behavior
is appropriate and necessary in my view and is reflected in Parliament’s
intention by enabling the revocation of Canadian citizenship obtained by false
representation. The need to deter others from this course of conduct is
evident. Not to sanction such behavior will encourage others. The sanction –
dismissing his citizenship application – is not disproportionate – he retains
his permanent residence with the substantial rights and benefits it confers.
[19]
In my view the bottom
line is this: one never obtains Canadian citizenship by trickery. For these
reasons, I dismissed his appeal.
“François Lemieux”
____________________________
Judge
Ottawa,
Ontario
February
22, 2010
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