Date: 20110518
Docket: T-1617-10
Citation: 2011
FC 573
Ottawa, Ontario, May 18, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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LUCAS EMEKA OBI
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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 under section 21 of the Federal Courts Act, RSC 1985, c F-7
and subsection 14(5) of the Citizenship Act, RSC 1985, c C-29 (the Act),
of a decision dated September 9, 2010 of a Citizenship and Immigration Canada
(CIC) citizenship judge, wherein the citizenship judge denied the applicant’s
application for Canadian citizenship.
[2]
The
applicant requests that the decision be set aside and the matter referred back
to a different citizenship judge for redetermination.
Background
[3]
Lucas
Emeka Obi (the applicant) is a Nigerian citizen born on March 18, 1963. He
became a permanent resident in Canada on July 24, 2000.
[4]
The
applicant appeared before a citizenship judge in April 2004. He was asked for
and provided additional documents.
[5]
In
June 2004, CIC detained the applicant. In November 2005, he was issued a
removal order for inadmissibility on the ground that he had not disclosed that
he had a previous conviction in the United States. The applicant appealed this
order to the Immigration Appeal Division (IAD) which granted a stay of his
removal with terms and conditions until approximately June 23, 2011.
[6]
The
applicant appeared before the citizenship judge on November 21, 2008. The judge
then called the applicant in July 2010 concerning the status of the removal
order and issued a decision refusing the application for citizenship in
September 2010.
Citizenship Judge’s
Decision
[7]
The
citizenship judge determined that the applicant was under a removal order dated
November 24, 2005 which had not been quashed. The judge found that the
applicant did not meet the requirements of paragraph 5(1)(f) of the Act that an
individual applying for citizenship not be under a removal order.
[8]
Further,
the citizenship judge found that pursuant to paragraph 5(1)(c) of the Act, the
applicant ceased to be a permanent resident under section 46 of the Immigration and Refugee
Protection Act,
RSC 2001, c 27 (IRPA).
[9]
Finally,
the citizenship judge also determined that there were no materials in support
of making a favourable recommendation under subsection 5(4) of the Act.
Issues
[10]
The
applicant submitted the following issues for consideration:
1. What is the standard
of review?
2. Did the citizenship judge
err in law by making a determination while the applicant’s stay of removal was
still pending before the IAD?
3. Did the citizenship
judge deny the applicant natural justice and fairness by failing to provide the
applicant with notice and an opportunity to respond to his concerns prior to
making his final decision with respect to the applicant’s citizenship
application?
4. Did the citizenship
judge err in law by concluding that the applicant failed to meet the
requirements of paragraph 5(1)(c) of the Act as he had ceased to be a permanent
resident pursuant to section 46 of IRPA?
[11]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the citizenship
judge err by finding that the applicant was under a removal order?
3. Did the citizenship
judge breach the applicant’s right to procedural fairness?
Applicant’s Written Submissions
[12]
The
applicant submits that the citizenship judge erred in finding that he did not
meet the requirements of paragraph 5(1)(f) of the Act because he was a person
under a removal order. The applicant submits that this was an error
because of the application of subsection 14(1.1) of the Act which states
that a decision on citizenship should not be made until a final determination
about a removal order against that applicant.
[13]
The
applicant submits that because the IAD stayed his removal order for a period of
four years to be reconsidered on or about June 23, 2011, a final determination
had not been made.
[14]
The
applicant also submits that the citizenship judge denied the applicant natural
justice by failing to provide him with notice and an opportunity to respond
prior to making his final decision.
[15]
The
judge provided no explanation for why he rendered his decision in September
2010 as opposed to the end of the applicant’s IAD probationary period, as
requested.
[16]
Finally,
the applicant submits that the citizenship judge erred in finding that the
applicant had lost his permanent resident status. An individual appealing a
removal order to the IAD does not lose his permanent residence until the appeal
is finally determined. Consequently, section 46 of IRPA does not apply to the
applicant.
Respondent’s Written Submissions
[17]
The
respondent concedes that the citizenship judge erred in finding that the
applicant had lost his permanent residence status under sections 46 and 49 of IRPA.
[18]
However,
the respondent submits that the citizenship judge correctly determined that the
applicant is under a removal order and correctly denied the citizenship application.
[19]
The
respondent argues that subsection 14(1.1) applies where the applicant is a
subject of an admissibility hearing. Subsection 14(1.1) operates as a bar to a
decision by a citizenship judge until the outcome of an admissibility hearing
is known. At the conclusion of an admissibility hearing where an individual is
found inadmissible, a removal order is made. This is the only event that
subsection 14(1.1) directs a citizenship judge to consider. The judge is not
required to wait until an admissibility decision of the Immigration Division is
upheld or overturned. Further, the right to appeal a removal order to the IAD
indicates that the Immigration Division decision was a final determination of
the admissibility hearing.
[20]
The
respondent further submits that the citizenship judge was entitled to decide
the application. Subsection 14(1) of the Act requires the judge to decide the
application within sixty days. Even where the judge allowed the applicant to
submit further documentation and asked the applicant to clarify his removal
order, the judge remained bound by the duty to determine the application within
sixty days. He was not authorized to defer the application under the
reconsideration of the applicant’s removal order by the IAD.
Analysis and Decision
[21]
Issue
1
What is the
appropriate standard of review?
Where
previous jurisprudence has determined the standard of review applicable to a
particular issue before the court, the reviewing court may adopt that standard
of review (Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at paragraph 57).
[22]
This
case involves questions of law in the interpretation and application of
subsection 14(1.1) of the Act. While this might normally be within the
area of expertise of a citizenship judge and therefore afforded some deference
(see Dunsmuir at paragraph 56), in this case, the application of subsection
14(1.1) affects the jurisdiction or vires of the citizenship judge to
determine the citizenship application. As such, it will be reviewed on the correctness
standard (see Dunsmuir at paragraph 59).
[23]
Questions
of procedural fairness are also evaluated on a standard of correctness (see Sketchley
v Canada (Attorney
General),
2005 FCA 404, at paragraph 46, and Dunsmuir above, at paragraphs 126 and
129).
[24]
Issue
2
Did the
citizenship judge err by finding that the applicant was under a removal order?
An admissibility hearing involving the
applicant resulted in the Immigration Division issuing a removal order against
the applicant in November 2005. The applicant appealed the removal order to the
IAD and received a stay of his removal for four years with terms and
conditions. This stay decision is to be reconsidered by the IAD on or about
June 23, 2011.
[25]
The
starting point of this issue is paragraph 5(1)(f) of the Act which
states that the Minister
shall not grant citizenship to any person who is under a removal order.
[26]
The
applicant is currently under a removal order as the stay of the removal was
determinate and set at four years. However, I agree with the applicant that
subsection 14(1.1) applies in this case.
[27]
Subsection
14(1.1) states that:
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14(1.1) Where
an applicant is a permanent resident who is the subject of an admissibility
hearing under the Immigration and Refugee Protection Act, the
citizenship judge may not make a determination under subsection (1) until
there has been a final determination whether, for the purposes of that
Act, a removal order shall be made against that applicant.
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14(1.1) Le
juge de la citoyenneté ne peut toutefois statuer sur la demande émanant d’un
résident permanent qui fait l’objet d’une enquête dans le cadre de la Loi
sur l’immigration et la protection des réfugiés tant qu’il n’a pas été
décidé en dernier ressort si une mesure de renvoi devrait être prise contre
lui.
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[Emphasis added]
[28]
There
has been no final determination on the removal order against the applicant
because of the stay imposed by the IAD. The final determination of the appeal
has yet to occur.
[29]
While
the respondent correctly notes that the citizenship judge is obligated by
subsection 14(1) of the Act to determine the citizenship application within
sixty days, this must be read in conjunction with the exception created by
subsection 14(1.1).
[30]
The
respondent argues that the removal order issued by the Immigration Division was
a final determination despite the right of appeal under subsection 63(3) of IRPA.
However, this is not consistent with section 49 of IRPA. Paragraph 49(1)(c)
states that where an applicant has the right to appeal, “a removal order comes
into force … the day of the final determination of the appeal, if an appeal is
made.”
[31]
This
scheme of IRPA implies that the final determination concerning a removal order
occurs at the appeal level, the IAD, where the right to an appeal exists. To
consider the removal order of the Immigration Division to be a final
determination, would not be consistent with section 49 of IRPA.
[32]
This
is consistent with the jurisprudence of the Supreme Court of Canada stated in Medovarski
v Canada (Minister of Citizenship and Immigration) 2005 SCC 51 at paragraph
8:
The
words of this statute, like any other, must be interpreted having regard to the
object, text and context of the provision, considered together: E.A. Driedger, Construction
of Statutes (2nd ed. 1983), at p. 87. In interpreting s. 196 to determine
whether it eliminates appeals for permanent residents for whom a stay from an
order for removal had been granted, I consider the purpose of the IRPA
and its transitional provisions, the French and English text of s. 196, the
legislative context of s. 196, and the need to interpret the provision to avoid
an absurd, illogical or redundant result. Finally, I deal with concerns about
unfairness to the appellants caused by the transition to the new IRPA.
[33]
For
these reasons, the citizenship judge was obliged not to make a determination of
the citizenship application under subsection 14(1). Because of this error by
the citizenship judge, the matter should be returned to a different citizenship
judge for redetermination following a final determination of the applicant’s
admissibility by the IAD.
[34]
I
need not consider the issues of procedural fairness or the loss of permanent
resident status.
JUDGMENT
[35]
IT IS
ORDERED that the
appeal (application of the applicant) is allowed, the decision of the
citizenship judge is set aside and the matter is referred to a different
citizenship judge for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Citizenship Act, RSC 1985, c C-29
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5. (1) The Minister shall grant
citizenship to any person who . . .
(f) is
not under a removal order and is not the subject of a declaration by the
Governor in Council made pursuant to section 20.
14. (1) An
application for
(a) a
grant of citizenship under subsection 5(1) or (5), . . .
shall be
considered by a citizenship judge who shall, within sixty days of the day the
application was referred to the judge, determine whether or not the person
who made the application meets the requirements of this Act and the
regulations with respect to the application.
14(1.1) Where
an applicant is a permanent resident who is the subject of an admissibility
hearing under the Immigration and Refugee Protection Act, the citizenship
judge may not make a determination under subsection (1) until there has been
a final determination whether, for the purposes of that Act, a removal order
shall be made against that applicant.
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5. (1) Le
ministre attribue la citoyenneté à toute personne qui, à la fois : . . .
f) n’est
pas sous le coup d’une mesure de renvoi et n’est pas visée par une
déclaration du gouverneur en conseil faite en application de l’article 20.
14. (1) Dans les soixante jours
de sa saisine, le juge de la citoyenneté statue sur la conformité — avec les
dispositions applicables en l’espèce de la présente loi et de ses règlements
— des demandes déposées en vue de :
a) l’attribution
de la citoyenneté, au titre des paragraphes 5(1) ou (5);
14(1.1) Le
juge de la citoyenneté ne peut toutefois statuer sur la demande émanant d’un résident
permanent qui fait l’objet d’une enquête dans le cadre de la Loi sur
l’immigration et la protection des réfugiés tant qu’il n’a pas été décidé en
dernier ressort si une mesure de renvoi devrait être prise contre lui.
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Immigration
and Refugee Protection Act,
RSC 2001, c 27
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46.(1) A person loses permanent
resident status . . .
(c) when
a removal order made against them comes into force; or
. . .
49. (1) A removal order comes
into force on the latest of the following dates: . . .
(c) the
day of the final determination of the appeal, if an appeal is made.
50. A removal order is stayed . . .
c) for
the duration of a stay imposed by the Immigration Appeal Division or any
other court of competent jurisdiction;
63.(3) A
permanent resident or a protected person may appeal to the Immigration Appeal
Division against a decision at an examination or admissibility hearing to
make a removal order against them.
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46.(1) Emportent
perte du statut de résident permanent les faits suivants : . . .
c) la
prise d’effet de la mesure de renvoi;
. .
.
49. (1) La
mesure de renvoi non susceptible d’appel prend effet immédiatement; celle
susceptible d’appel prend effet à l’expiration du délai d’appel, s’il n’est
pas formé, ou quand est rendue la décision qui a pour résultat le maintien
définitif de la mesure. . . .
c) quinze
jours après la notification du rejet de sa demande par la Section de la
protection des réfugiés ou, en cas d’appel, par la Section d’appel des
réfugiés;
50. Il
y a sursis de la mesure de renvoi dans les cas suivants : . . .
c) pour
la durée prévue par la Section d’appel de l’immigration ou toute autre
juridiction compétente;
63.(3) Le
résident permanent ou la personne protégée peut interjeter appel de la mesure
de renvoi prise au contrôle ou à l’enquête.
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