Docket: T-122-11
Citation: 2012 FC 92
Ottawa, Ontario, January 24,
2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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OKEY FABIAN EZE
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an appeal of a Citizenship Judge’s decision, dated December 13, 2010,
denying the citizenship application of Okey Fabian Eze based on the prohibition
related to criminal charges in subsection 22(1)(b) of the Citizenship Act,
RSC, 1985, c C-29 (the Act).
[2]
For
the following reasons, the appeal is allowed.
I. Background
[3]
On
November 1, 2004, Okey Fabian Eze (the applicant) filed an application for
Canadian citizenship.
[4]
On
May 31, 2006, however, he was charged with the following offences under the Criminal
Code of Canada, RSC, 1985, c C-46: (a) conspiracy to commit an indictable
offence; (b) fraud over $5000; (c) possession of property obtained by crime;
and (d) commission of an offence for criminal organization.
[5]
On
August 10, 2010, Citizenship and Immigration Canada (CIC) Windsor mailed a
Request for a Court Information Sheet or Certificate of Conviction to assess
whether the applicant was now prohibited from becoming a Canadian citizen. On
September 14, 2010, the Citizenship Judge hand-delivered a second request. The
applicant had sixty days from the date of the initial request to comply, but
failed to do so.
[6]
On
October 7, 2010, however, the applicant and his counsel prepared a request for
a 90 day extension of time to file materials and fulfill the criminality
requirements of the Act. In this request he noted that some of the
charges had been withdrawn and his criminal counsel was seeking to stay the
proceedings for delay based on section 11(b) of the Canadian Charter of
Rights and Freedoms (Charter). According to the courier company,
Fedex, the request and supporting documents were received on October 13, 2010.
[7]
Regardless,
in a short letter dated the same day, the Citizenship Judge denied his
citizenship application, citing the criminal charges and failure to comply with
requests for additional information. The Citizenship Judge wrote that
“[b]ecause you have not complied with the requests within the period given, I
have no choice but to non-approve your file.” Based on the prohibition under
subsection 22(1)(b) of the Act, a person cannot be granted citizenship
under subsection 5(1) or take the oath of citizenship while charged with an
indictable offence under any Act of Parliament.
[8]
The
Citizenship Judge also considered whether he should make a favourable
recommendation to the Minister to exercise discretion under subsections 5(3)
and 5(4), but after reviewing the applicant’s submissions found that this was
not warranted in the circumstances. Notably, the request for an extension of
time was not referred to in the Citizenship Judge’s letter.
[9]
On
December 21, 2010, the Ontario Superior Court of Justice heard the applicant’s
motion for a stay of proceedings related to his criminal charges. On January
12, 2011, the applicant attended at the office of the Citizenship Judge to make
her aware of this development and claims he was informed she was unavailable.
[10]
On
January 17, 2011, the applicant’s motion for a stay of proceedings was granted
by Justice Wilson of the Ontario Superior Court of Justice based on sections 24
and 11(b) of the Charter and the delay in getting to trial. On January
19, 2011, the applicant attended at the office of the Citizenship Judge to
provide her with a copy of the decision. At this time, he was informed that
the Citizenship Judge had already denied his application.
[11]
The
applicant asks this court to review the Citizenship Judge’s decision to refuse
citizenship based on criminality for a failure to consider his request for an
extension of time and relying on charges subsequently withdrawn or stayed.
II. Issues
[12]
The
specific issues before the Court are as follows:
a) Did
the Citizenship Judge commit a breach of procedural fairness by not addressing
the request for an extension of time?
b) Did the Citizenship Judge err in
denying the application based on subsection 22(1)(b)?
III. Standard
of Review
[13]
Issues
of procedural fairness demand the correctness standard (see Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12, 2009
CarswellNat 434 at para 43).
[14]
However,
the standard of review for a Citizenship Judge’s decision under
subsection 22(1)(b) of the Act is reasonableness (see for example Zhan
v Canada (Minister of
Citizenship and Immigration), 2010 FC 822, [2010] FCJ no 1021 at para
18). The Court’s intervention is not warranted unless the decision fails to
accord with the principles of justification, transparency and intelligibility
or falls outside the range of possible, acceptable outcomes (see Dunsmuir v
New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
IV. Analysis
A. Did the
Citizenship Judge Commit a Breach of Procedural Fairness by Not Addressing the Request
for an Extension of Time?
[15]
The
applicant claims his right to a fair hearing was denied by the Citizenship
Judge in ignoring the request for an extension of time and subsequently
concluding that he had failed to provide necessary information regarding the
criminal charges. He relies on the decision of Niedzialkowski v Canada
(Minister of Employment and Immigration), [1992] FCJ no 459 where the
Federal Court of Appeal intimated in relation to a delayed request for an
extension of time, since the “Board never dealt with that request at all or
made any move to fix a date for claimant’s submissions; instead, within a few
days of counsel’s telephone call, it prepared and filed a written decision
dismissing the claim. Thus, the claimant never really had a chance to put his
case at all.”
[16]
The
respondent suggests that the fact the applicant’s request for an extension of
time was not granted does not mean that it was not considered. Given that the
applicant failed to comply with two previous requests for a Court Information
Sheet or Certificate of Conviction, it would not have been unreasonable for the
Citizenship Judge to refuse his request for an additional 90 day extension.
[17]
Admittedly,
the applicant’s previous failure to comply may justify a decision by the
Citizenship Judge not to grant the extension of time. The applicant was also
slow to bring the matter to the attention of the Citizenship Judge. Assuming
the applicant’s information regarding the receipt of the request is accurate,
the Citizenship Judge prepared her decision on that same day. This may in part
explain why the request was not mentioned as it may not have made its way to
the Citizenship Judge in the period prior to releasing the decision.
[18]
Regardless,
the issue is that a belated request was made by the applicant around the time
of the release of the decision. He was entitled to have this request
considered as supported by a similar holding in Niedzialkowski, above. Whatever
the Citizenship Judge’s decision on this matter, it was a breach of procedural
fairness not to consider the request.
B. Did the
Citizenship Judge Err in Denying the Application Based on Subsection 22(1)(b)?
[19]
I
acknowledge the respondent’s submission that notwithstanding the request for an
extension of time the Citizenship Judge’s decision was reasonable based on the
information available to her. As the respondent further contends, there was no
stay of proceedings in place when the Citizenship Judge issued her decision and
the applicant can always reapply for citizenship.
[20]
However,
there was a request filed with additional information as to a potential change
in the status of criminal proceedings which should have been addressed in the
course of her decision.
V. Conclusion
[21]
It
amounted to a breach of procedural fairness for the Citizenship Judge not to
explicitly consider the request for an extension of time to provide further
information in denying the citizenship application on the basis of criminal charges
under subsection 22(1)(b) of the Act.
[22]
Accordingly,
the appeal is allowed. The matter is referred to a different Citizenship Judge
to reconsider his application along with the request for an extension of time
to file material relevant to the criminal proceedings.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this appeal is allowed. The matter is referred to a
different Citizenship Judge to reconsider his application along with the
request for an extension of time to file material relevant to the criminal
proceedings
“ D.
G. Near ”
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