Date: 20070312
Docket: T-1170-06
Citation: 2007 FC 280
Ottawa, Ontario, March 12,
2007
PRESENT: The Honourable Madam Justice Simpson
BETWEEN:
WAYNE
KARL BABCOCK
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
Karl Wayne Babcock
is a self-represented party (the Applicant). He applied for Canadian
citizenship under paragraph 5(2)(b) of the Citizenship Act, R.S.C.
1985, c. C-29 (the Act). His application was received by the Respondent on
September 14, 2004 (the Application) but he was subsequently advised that
his Application had not been processed because the transitional provisions
under paragraph 5(2)(b) of the Act had expired on August 14, 2004 (the
Expiry Date).
[2]
The
Applicant seeks judicial review of the decision not to process his Application
(the Decision) alleging that the Respondent breached its duty to accord him
procedural fairness by not giving him notice of the Expiry Date.
THE FACTS
[3]
The
Applicant was born on November 2, 1970 in Dearborn, Michigan. He claims
an entitlement to Canadian citizenship derivatively through the citizenship of
his mother, who was born in Canada on August 15, 1949.
[4]
Paragraph
5(2)(b) of the Act (the Provision) gave persons who were born outside Canada, between
January 1, 1947 and February 14, 1977 to a mother who was a Canadian
citizen, the right to apply for Canadian citizenship.
[5]
However,
applications under the Provision were to be made before February 15, 1979
or within such extended period authorized by the Minister of Citizenship and
Immigration (the Minister). After 1979, the Minister granted a series of
extensions.
[6]
The
Respondent’s affidavit for this application for judicial review was sworn by
Margaret Dritsas on August 24, 2006 (the Respondent’s Affidavit). She
deposed that in 1999, the Minister decided that the Provision would not be
extended indefinitely. Thereafter, the Department of Citizenship and
Immigration (CIC) published a brochure, in hard copy, which indicated that the right
to apply under the Provision would “eventually” expire (the Brochure). The Brochure
invited potential applicants for Canadian Citizenship to apply “soon”. The
Brochure may also have appeared on the internet from 2000 to 2004. However, a
copy was not exhibited as part of the Respondent’s Affidavit. Instead, it was
included in the Respondent’s Record. That copy shows that it was first
published in January of 2000 and was revised on June 1, 2004. The
revision involved the addition of text which said that “The transitional
provisions expire August 14, 2004”.
[7]
The
Respondent’s Affidavit said that brochures and posters announcing the Expiry
Date were placed in Canadian missions abroad and that media outlets were
contacted. The Respondent’s record (but not its Affidavit) includes an article
from the Toronto Star Newspaper of May 29, 2004 which describes the Expiry
Date and an internet notice of June 1, 2004 which also gave the Expiry Date.
[8]
In
this case, the difficulty arose because information about the Expiry Date did
not reach the Applicant. That was the case because the Applicant lived in Michigan until the
end of July 2004 and had no occasion to access the internet, visit a Canadian
mission or read the Toronto Star.
[9]
However,
when he came to Windsor, Ontario by bus on July 31, 2004, the Applicant
immediately contacted CIC by telephone to ask about the procedure for making a
citizenship application under the Provision. However, instead of citizenship
materials, he was sent refugee application forms. When, after a second
telephone call, he was again sent refugee forms, he went to the Windsor CIC
office in person.
[10]
The
evidence varies slightly about the exact date of this visit but the Respondent
acknowledges that it was definitely before August 14, 2004. At the CIC
office, the Applicant was served by a woman (the CIC Official) who provided him
with a pamphlet in hard copy entitled “On-Line and Call Centre Services” (the
Pamphlet). It indicated that the Applicant needed Application Kit CIT 0303E
(the Kit) and showed him how to download the Kit from CIC’s website. However,
the Pamphlet did not mention the Expiry Date. The uncontested evidence of the
Applicant’s friend Don Rivard in his affidavit sworn on June 23,
2006 is that the CIC Official did not warn the Applicant that the Expiry Date
was imminent. This was the case even though a CIC document entitled “Operation
Bulletin” included the following statements in connection with the Provision
and the Expiry Date:
All staff should encourage applicants who
believe that they fall under these provisions to submit their applications on
or before August 14, 2004. Given the expiry of these provisions, it is
very important to accept these applications and to forward them to CPC Sydney.
Please inform clients that fall within
these categories of the expiry date.
[11]
The
Applicant downloaded the Kit which included an application form and the
Respondent acknowledges that he must have taken this step before the Expiry
Date because the Kit would not have been available thereafter. The Kit did not
mention the Expiry Date.
[12]
CIC’s
Case Processing Centre received the completed Application on September 14,
2004.
[13]
Fifteen
months later, in a letter dated January 30, 2006, CIC informed the
Applicant that his Application could not be processed because it had been
received one month after the Expiry Date.
THE RESPONDENT’S
SUBMISSIONS
[14]
The
Respondent says that the doctrines of legitimate expectation and procedural
fairness do not apply in the context of legislative changes enacted by
Parliament. In this regard, the Respondent relies on the Supreme Court of
Canada’s decision in Attorney General of Canada v. Joseph
Patrick Authorson et al, [2003] 2 S.C.R. 40. It concerned legislation passed
by the Federal Government in 1990 which extinguished claims to interest which
had been owed to veterans. In 1999, a class action was certified in which veterans
claimed that they had a right to notice and to a hearing before legislation was
enacted which expropriated their funds.
[15]
The
Supreme Court held that the legislative decision making process is not subject
to a duty of fairness and the Respondent says that this ruling means that no
duty of fairness was owed to the Applicant by CIC in this case.
[16]
I
do not agree. This case has nothing to do with the legislative process. There
is no allegation that the Applicant was entitled to prior notice of the Minister’s
decision to set the Expiry Date. Rather, this case concerns CIC’s handling of
a particular application which was at risk of being nullified by the Expiry
Date.
[17]
The
Respondent also submits in the alternative that, if due process is owed, it
should be evaluated in a context in which the Applicant has the following
options:
1.
The
Applicant can make an inland application for permanent residence under section
25 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 and,
if successful, can later apply to become a citizen.
2.
The
Applicant can return to the United States and apply for permanent
residence from there and, if successful, can later apply for citizenship.
3.
The
Applicant can apply for citizenship under subsection 5(4) of the Act which
allows the Minister to grant citizenship in cases of undue hardship.
[18]
However,
the Respondent acknowledges that all these options involve the exercise of discretion
whereas, if the Applicant can show that he is qualified under the Provision, he
has the right to become a citizen. In these circumstances, I am not persuaded
that the options the Respondent has identified are relevant.
[19]
Finally,
the Respondent criticizes the Applicant for not being diligent saying that he
could have applied at any time since the Provision was introduced in 1977 and
instead waited until the Expiry Date was near. However, the Applicant had no
knowledge of the Expiry Date and further, in my view, diligence only becomes relevant
once an applicant decides to apply. In this case, it is clear that after his
arrival in Canada, the
Applicant pursued his application with utmost diligence.
CONCLUSION
[20]
I
am satisfied that the Respondent breached the duty of procedural fairness owed to
the Applicant when, in contravention of CIC’s Operational Bulletin, it failed
to alert him to the Expiry Date either when he downloaded the Kit or when he
visited the CIC’s Windsor office.
JUDGMENT
The Respondent is to consider
the Applicant’s Application under the Provision as if the Application had been
received before the Expiry Date.
“Sandra
J. Simpson”
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