Date: 20080515
Docket: T-1837-06
Citation: 2008 FC 614
Ottawa, Ontario, May 15, 2008
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
SHEON CHANG LEE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDMGENT
[1]
Sheon
Chang Lee (the “Applicant”) applies for a judicial review of a decision made by
a citizenship officer dated October 12, 2006, denying him a certificate of Canadian
citizenship on the basis of section 3(2) of the Citizenship Act, R.S.C.,
1985, c. C-29. This application is made pursuant to section 18.1 of the
Federal Courts Act, R.S.C., 1985, c. F-7.
[2]
For
reasons that follow, I have decided that the application for judicial review
does not succeed.
BACKGROUND
[3]
The
Applicant was born in Canada in 1979. At the time his
father was a representative of the Malaysian Industrial Development Authority (“MIDA”),
a quasi-governmental organization. In 1981, when the Applicant was three years
old, the family moved back to Malaysia. They returned to Canada in 1987. The Applicant has
remained in Canada since that time.
[4]
The
Applicant’s parents are Malaysian citizens. At the time of the Applicant’s
birth, his father held the formal title of Vice-Consul as granted by the
Malaysian government which he continued to hold until the family returned to Malaysia in 1981.
[5]
When the
family returned to Canada in 1987, the Applicant’s
father and all the members of the family, including the Applicant, entered Canada as permanent residents. However,
the Applicant grew up believing he was a citizen of Canada because he had been
born in Canada.
[6]
The
Applicant became involved in criminal activity when he was 18. In March 1999,
he was arrested. In May 2000, the Applicant pled guilty to three charges:
conspiracy to commit an indictable offence, trafficking in heroin, and
possession of a prohibited weapon. He received a sentence of six years and
nine months which expired in February 2007. Between his arrest and conviction,
the Applicant was under house arrest for 13 months during which period he
continued his education at York
University. The Applicant served 13.5
months in a minimum security prison before being released on parole.
[7]
The
Applicant says his criminal behaviour stemmed from issues relating to lack of
confidence, low self-esteem, and immaturity. He does not excuse his behaviour
which he sincerely regrets. While incarcerated he continued his studies by
correspondence and spent time as a tutor assisting other inmates in subjects
such as math and reading. After he was released from prison he completed an
Honours B.A. in Economics and Business at York University, graduating cum laude.
He entered the Masters in Financial Economics Program at the University of Toronto and completed his Masters
Degree in December 2004 receiving a graduate award as the student with the best
academic record. He is now in law school.
[8]
A
psychological report was provided by the Applicant which had been prepared by
the same psychologist who had assessed the Applicant when he was released from
prison. With respect to rehabilitation, the psychologist noted:
I have absolutely no doubt that [the
Applicant] made enormous gains both in his psychological and emotional
maturity, and in his accomplishments in society. Since his coming in to
trouble with the law as an immature teenager, with poor family relationships,
little in the way of “street smart” experience and very poor judgement, he has
made enormous strides in all spheres.
Indeed, [the Applicant’s] academic gains
alone would be considered remarkable for any person of his age; but for him to
accomplish this much under the circumstances he has faced and is still facing
is all the more rare.
Since his incarceration, [the Applicant]
has matured into an adult and has demonstrated good judgement, hard work,
goal-directed behaviour, good character, and social maturity. I noted in my
2001 report that the Applicant had a low risk of re-offending, among the very
lowest I have encountered in over 25 years of forensic work and well over 1000
assessments. This opinion is based on formal, actuarial, risk assessment
procedures, reflecting the most current and widely accepted risk assessment
instruments. I believe that my opinion has been further substantiated by the
official five years of experience we now have with [the Applicant] since my
last report, and I have even great confidence in that assessment of risk and
the assessment of his character and potential.
[9]
As a
result of the Applicant’s criminal conviction, Immigration officials contacted
him and advised that he was a permanent resident who was subject to removal. The
Department of Citizenship and Immigration issued an inadmissibility report
pursuant to section 44(1) of the Immigration and Refugee Protection Act S.C.
2001, c. 27 (“IRPA”) dated September 14, 2004 against the Applicant.
The inadmissibility report alleged that the Applicant is a permanent resident
of Canada who is inadmissible because he was convicted in Canada of an offence punishable by a
maximum term of imprisonment of at least 10 years. An inadmissibility hearing
is yet to be held.
[10]
On March
15, 2006 the Applicant submitted an application for a certificate of Canadian citizenship.
In his application, the Applicant advised Citizenship officials of his family
status, his belief that he was Canadian by virtue of being born in Canada, his
criminal conviction and rehabilitation, the difficulties he would face both on
separation from his family and fiancé and the further difficulties he would
encounter on being removed to Malaysia because he does not speak Malay, he
belongs to a minority group which is discriminated against, and he is
unfamiliar with the Malaysian culture. In addition, the Applicant states he is
asthmatic and the Malaysian climate would exacerbate his condition.
[11]
The
Applicant argues that he was entitled to a certificate of Canadian citizenship
by virtue of section 3(1) of the Citizenship Act which provides that
persons born in Canada are entitled to Canadian
Citizenship. The Applicant further submitted that the exception pertaining to
children of diplomats in section 3(2) of the Citizenship Act did not
apply to him because his father, although holding the title of Vice-Consul, did
not perform diplomatic functions. The Applicant also asked Citizenship officials
to consider an exemption in regards to his situation on the basis of section 7
of the Canadian Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982 being Schedule B to the Canada Act, 1982 (“Charter”).
[12]
On October
12, 2006, the Citizenship Officer informed the Applicant that he was not
eligible for a Canadian citizenship certificate. The Citizenship Officer
referred to Section 3(2)(a) of the Citizenship Act which states that a
child does not qualify for citizenship, if at the time of birth, neither parent
is a citizen or a permanent resident and either parent is a diplomat, consular
official or in the employ of a foreign government. The Citizenship Officer
found that the Applicant’s father, at the relevant time, was in the employ of a
foreign government.
DECISION UNDER REVIEW
[13]
The
Citizenship Officer referred to the provisions of the Citizenship Act,
in particular section 3(1) which stipulates a person is a citizen if born in Canada after February 14, 1977 and
section 3(2) which relates to the children of foreign diplomats. The Officer wrote
that section 3(2) of the Act:
stipulates that 3(1)(a) does not
apply to a person, if at the time of his birth neither of his parents
was a citizen or lawfully admitted to Canada for permanent residence and either
of his parents was:
a) a diplomatic or consular officer or
other representative or employee in Canada
of a foreign government;
b) an employee in the service of a
person referred to in paragraph (a);
(emphasis by the Citizenship Officer)
[14]
The
Officer confirmed that the Applicant was born in Canada after February 14,
1977,but found that neither of his parents were Canadian citizens or lawfully
admitted to Canada as permanent residents and that the Applicant’s father was
employed by a foreign government holding the office of Vice-Consul for the
Malaysian government at the time of the Applicant’s birth. The Officer did not
make reference to the Applicant’s section 7 Charter request.
[15]
In result,
the Officer advised the Applicant that he did not acquire a Canadian citizenship
as a result of his birth in Canada pursuant to section 3(1)(a) because he was
subject to the exclusion outlined in paragraph 3(2) of the Citizenship Act.
RELEVANT STATUTORY FRAMEWORK
[16]
The
relevant provisions of the Citizenship Act provide:
|
Persons who are citizens
3. (1)
Subject to this Act, a person is a citizen if
(a) the person was born in Canada after February 14, 1977;
(b) the person was born outside Canada after February 14, 1977 and at the time of his birth one of his
parents, other than a parent who adopted him, was a citizen;
(c) the person has been granted or acquired citizenship pursuant
to section 5 or 11 and, in the case of a person who is fourteen years of age
or over on the day that he is granted citizenship, he has taken the oath of
citizenship;
(c.1) the person has been granted citizenship under section 5.1;
(d) the person was a citizen immediately before February 15,
1977; or
(e) the person was entitled, immediately before February 15,
1977, to become a citizen under paragraph 5(1)(b) of the former Act.
Not applicable to children of foreign diplomats, etc.
(2) Paragraph (1)(a) does not apply to a person
if, at the time of his birth, neither of his parents was a citizen or
lawfully admitted to Canada for permanent residence and either of his parents was
(a) a diplomatic or consular officer or other representative or
employee in Canada of a foreign government;
(b) an employee in the service of a person referred to in
paragraph (a); or
(c) an officer or employee in Canada of a specialized agency of
the United Nations or an officer or employee in Canada of any other
international organization to whom there are granted, by or under any Act of
Parliament, diplomatic privileges and immunities certified by the Minister of
Foreign Affairs to be equivalent to those granted to a person or persons
referred to in paragraph (a).
R.S.,
1985, c. C-29, s. 3; 1995, c. 5, s. 25; 2007, c. 24, s. 1.
|
Citoyens
3. (1) Sous réserve des autres dispositions de la présente
loi, a qualité de citoyen toute personne :
a) née au Canada après le 14 février 1977;
b) née à l’étranger après le 14 février 1977 d’un père ou
d’une mère ayant qualité de citoyen au moment de la naissance;
c) ayant obtenu la citoyenneté — par attribution ou
acquisition — sous le régime des articles 5 ou 11 et ayant, si elle était
âgée d’au moins quatorze ans, prêté le serment de citoyenneté;
c.1) ayant obtenu la citoyenneté par attribution au titre de
l’article 5.1;
d) ayant cette qualité au 14 février 1977;
e) habile, au 14 février 1977, à devenir citoyen aux
termes de l’alinéa 5(1)b) de l’ancienne loi.
Inapplicabilité
aux enfants de diplomates étrangers, etc.
(2) L’alinéa (1)a) ne s’applique pas à la personne
dont, au moment de la naissance, les parents n’avaient qualité ni de citoyens
ni de résidents permanents et dont le père ou la mère était :
a) agent diplomatique ou consulaire, représentant à un
autre titre ou au service au Canada d’un gouvernement étranger;
b) au service d’une personne mentionnée à l’alinéa a);
c) fonctionnaire ou au service, au Canada, d’une organisation internationale — notamment d’une
institution spécialisée des Nations Unies — bénéficiant sous le régime d’une
loi fédérale de privilèges et immunités diplomatiques que le ministre des
Affaires étrangères certifie être équivalents à ceux dont jouissent les
personnes visées à l’alinéa a).
L.R.
(1985), ch. C-29, art. 3; 1995, ch. 5, art. 25; 2007, ch. 24, art. 1.
|
ISSUES
[17]
The issues
in this proceeding are:
1.
Did the
Citizenship Officer violate principles of procedural fairness in considering
the information provided by the Canadian Border Services Agency (“CBSA”)
without notice to the Applicant?
2.
Does the communication
between the CBSA Officer and the Citizenship Officer prior to the decision give
rise to a reasonable apprehension of bias?
3.
Did the Citizenship Officer
err in concluding that the Applicant came with the ambit of section 3(2) of the
Citizenship Act?
4.
The Charter Arguments:
i. Does the Citizenship Officer have
jurisdiction to consider the Charter?
ii. If the Citizenship Officer does not have
jurisdiction to consider the Charter, does this Court?
iii. Does section 3(2)(a) of the Citizenship
Act offend section 7 or 15 of the Charter?
STANDARD OF REVIEW
[18]
The proper
standard of review for denial of procedural fairness is correctness. If
procedural fairness is breached the impugned decision will be set aside (Hamzai
v. Canada (Minister of Citizenship and
Immigration, 2006
FC 1108 at para. 15).
[19]
Procedural
fairness also requires that there be no reasonable apprehension of bias. The
consequence of finding a reasonable apprehension of bias is that the hearing
and any subsequent order is void (Newfoundland Telephone Company v. Newfoundland (Board of Commissioners of
Public Utilities),
[1992] 1 S.C.R. 623 at paras. 39, 40).
[20]
The
correct interpretation of section 3(2) of the Citizenship Act is a
question of law and must be reviewed on the standard of correctness (Mugesera
v. Canada (Minister of Citizenship and
Immigration),
[2005] 2 S.C.R. 100 at para. 37).
ARGUMENT AND ANALYSIS
Did
the Citizenship Officer violate principles of procedural fairness in
considering the information provided by the Canadian Border Services Agency
without notice to the Applicant?
[21]
The
Applicant submits that the provision of correspondence and documents by the CBSA
Officer to Citizenship officials without notice to the Applicant was a breach
of procedural fairness.
[22]
In an
email dated May 18, 2006, the CBSA Officer advised Citizenship officials that
the Applicant was born in Canada but to a foreign diplomat and
therefore had no right to Canadian citizenship by virtue of his birth. The
email also advised that the Applicant had been convicted of trafficking in
heroin and had been sentenced to a term of six years and nine months plus three
months pre-trial custody. The CBSA Officer requested being advised which
Citizenship officer was assigned to the case so documentation from CBSA files
could be forwarded.
[23]
Following
the email, the CBSA Officer wrote a letter dated June 13, 2006 to the
Citizenship Officer charged with the file, attaching the following documents:
§
A letter
from the High Commission of Malaysia dated July 19, 2004
§
Documentation
from the Canadian Office of Protocol and their publication “Diplomatic Corps
and Other Representatives in Canada” from February 1978 to June
1982
§
The
Applicant’s record of landing
§
Report
under section 44(1) of IRPA
§
Conviction
Certificate
[24]
The CBSA
Officer’s June 13th letter to the Citizenship Officer indicated that
the Applicant’s father was a diplomat at the time of the Applicant’s birth as
confirmed by the letter from the High Commission of Malaysia and a publication
from the Canadian Office of Protocol. The CBSA Officer also expressed the view
that the Canadian Immigration Officer in Malaysia would not have accepted an application
for permanent residence for the Applicant if he was under the belief that the
Applicant was a Canadian citizen.
[25]
The
Applicant submits that the fact that the Citizenship Officer obtained information
from the CBSA Officer without giving notice to the Applicant was a breach of
procedural fairness. The Applicant does not dispute he had copies of the documents
submitted by the CBSA Officer. His argument is that had he known the Citizenship
Officer was considering those documents, he would have made submissions to
dispel any concerns (Bhagwandass v. Canada (Minister of Citizenship and
Immigration), 2001 FCA 49 at para. 21). The Applicant also relies on Haghighi
v. Canada (Minister of Citizenship and
Immigration),
[2000] 4 F.C. 407 at para. 37). In that case, the Federal Court of Appeal
concluded that, within the context of a H&C proceeding, an applicant had a
right to comment on a the report of a Post Claim Determination officer notwithstanding
the report contained information the applicant was aware of.
[26]
The
Applicant further submits that the CBSA letter, separate and apart from the accompanying
documentation, constituted extrinsic evidence as it contained submissions to
the merits of the Applicant’s citizenship application which was relied upon and
considered by the Citizenship Officer. Thus it was a breach of procedural fairness
to deny the Applicant the opportunity to comment on the CBSA letter (Batica
v. Canada (Minister of Citizenship and
Immigration, 2006
FC 762 at paras. 13-15).
[27]
The
Respondent submits that the central issue was whether the Applicant’s father
was a diplomatic or consular officer or other representative or employee of a
foreign government of Canada at the time of the
Applicant’s birth. The Citizenship Officer was required to make a
determination in order to fulfill her responsibilities and required information
to ascertain the Applicant’s father’s position at the relevant time.
[28]
The
Respondent submits the CBSA officer provided information which the CBSA was statutorily
entitled to provide. The Respondent relies on section 5(2) of the Canadian
Border Services Agency Act, S.C. 2005 c.38 (“CBSA Act”) which states:
The Agency may provide support, through
the provision of services, to departments and agencies for which the Minister
is responsible, in accordance with agreements or arrangements entered into with
those departments and agencies.
[29]
The
Respondent contends that the documents provided were either publicly available
or in the alternative, if they were private, were shared for the purpose for
which the information was obtained or compiled by the institution for use
consistent with that purpose. The documents, according to the Respondent, were
originally provided for the purpose of determining the Applicant’s immigration
status in Canada and as such were shared for a
use consistent with that purpose.
[30]
The
Respondent distinguishes Haghighi, above, from the case at bar.
In Haghighi, the Federal Court of Appeal had set out a mandatory process
in H&C applications where the decision-maker relies on the opinion of a third
party. The Respondent asserts that this same duty has not been afforded to
other processes where no outside opinion was relied on (Zolotareva v. Canada (Minister of Citizenship and
Immigration),
2003 FC 1274 at para. 24). Additionally, the Respondent argues that Haghighi,
above, was made in the context of a discretionary H&C decision. In this
case, section 3(2) of the Citizenship Act does not allow for the
exercise of discretion by the Citizenship Officer.
[31]
Finally,
the Respondent submits there was no extrinsic evidence of facts unknown to the
Applicant and the Applicant was not denied an opportunity to participate in the
decision-making process in a meaningful manner.
[32]
On review
of the material before the Citizenship Officer, it is clear that the Applicant
was aware that the diplomatic status of his father would be determinative in
his case. The Applicant, through his counsel, made submissions acknowledging
that the Applicant’s father was admitted to Canada with a diplomatic passport
and was registered as Vice-Consul, but stressed his function was not that of a
diplomatic or consular officer.
[33]
In Chen
v. Canada (Minister of Citizenship and
Immigration),
[2002] 4 F.C. 193 at paras. 33-36, Justice Dolores Hansen made the following
comments in regard to the distinction between extrinsic and non-extrinsic
evidence:
The broad principle I take form Mancia is
as follows. Extrinsic evidence must be disclosed to an applicant. Fairness,
however, will not require the disclosure of non-extrinsic evidence, such as
general country conditions reports, unless it was made available after the
applicant filed her submissions and it satisfies the other criteria articulated
in that case.
In my view, both of these “rules” shares
a single underlying rationale. Fairness requires that documents, reports, or
opinions of which the applicant is not aware, nor deemed to be aware, must be
disclosed.
The underlying rationale for the rule
established in Mancia, in my opinion, survives Haghighi and Bhagwandass. The
principle of those cases, generally stated, is that the duty of fairness
requires disclosure of a document, report or opinion, if it is required to
provide the individual with a meaningful opportunity to fully and fairly
present her case to the decision maker.
Therefore, while it is clear that the
distinction between extrinsic and non-extrinsic evidence is no longer
determinative of whether the duty of fairness requires disclosure, the rationale
behind the rule in Mancia remains. I arrive at this conclusion because even in
recent jurisprudence, applying the post-Baker framework for defining the duty
of fairness, the overriding concern with respect to disclosure is whether the
document, opinion, or report is one of which the individual is aware or deemed
to be aware.
[34]
In my
opinion, given that the Applicant was aware of the CBSA documents in question,
the Applicant was not denied an opportunity to make a full presentation. The
Applicant’s submissions to the Citizenship Officer clearly indicate he focussed
on the issue raised by section 3(2) of the Citizenship Act and the
status of his father. The CBSA letter refers to information in the possession
of the Applicant. It addresses questions the Applicant himself has addressed
in his submissions to the Citizenship Officer although not his submission that
the MIDA was a non-governmental organization.
[35]
I find
that the Applicant was not deprived of a meaningful opportunity to make
submissions concerning his father’s status at the time of the Applicant’s
birth. I conclude that the Citizenship Officer did not breach the Applicant’s
right to procedural fairness.
Does the communication between the CBSA
Officer and the Citizenship Officer prior to the decision give rise to a
reasonable apprehension of bias?
[36]
The Applicant submits
that the correspondence between the two officials initiated by the CBSA Officer
made without the Applicant’s knowledge and consent gives rise to a reasonable
apprehension of bias. The Applicant argues that there is nothing in the
procedure for an application for citizenship which allows for such a
correspondence. In the alternative, if the citizenship procedure does allow
for such correspondence, it has to be made openly and not through ‘secret’
emails. Further, the Applicant argues that the CBSA
Officer sought to pressure the Citizenship Officer to make a quick decision.
[37]
The Applicant relies on
Geza v. Canada (Minister of Citizenship and Immigration), 2006 FCA 124 at paras. 60-61, which found
that undisclosed emails, among other factors, exchanged between senior members
of management, one of whom participated in Refugee Protection hearings was
enough to establish a reasonable apprehension of bias. The Applicant admits
that the level of procedural fairness in Geza, above, was higher because
it involved a hearing before a quasi-judicial body. Nonetheless, the Applicant
submits that he is entitled to a hearing before an impartial tribunal and the
communication between the CBSA Officer and Citizenship Officer undermined that
impartiality.
[38]
The Respondent argues
that section 5(2) of the CBSA Act allows the CBSA to provide support,
through the provision of services, to departments and agencies for which the
Minister is responsible, in accordance with the agreements entered into with
those departments and agencies. Further, section 8(2) of the Privacy Act,
R.S.C., 1985, c. P-21, allows for the sharing of personal information between
government departments, if the information is used for the purpose for which
the information was compiled or obtained.
[39]
The test for
apprehension of bias was set out by Justice Grandpré of the Supreme Court of
Canada in Committee for Justice and Liberty v. Canada (National Energy
Board), [1978] 1 S.C.R. 369 at 394:
the apprehension of bias must be a reasonable one,
held by reasonable and right-minded persons, applying themselves to the
question and obtaining thereon the required information…[T]hat test is “what
would an informed person, viewing the matter realistically and practically –
and having thought the matter through –conclude. Would he think that it is
more likely than not that [the decision-maker], whether consciously or
unconsciously, would not decide fairly”
[40]
The legal notion of a
reasonable apprehension of bias implies circumstances that give rise to a
belief by a reasonable and informed observer that the decision-maker has been
influenced by some improper consideration. Similarly, a belief that a
decision-maker is not independent goes to the improper surrender of freedom as
to how disputes should be decided.
[41]
The Federal Court of
Appeal in Geza, above, at para. 57, stated that “in determining
propriety, the legitimate interest of the agency in the overall quality of its
decision cannot be ignored”. A
reasonable observer would conclude that the Citizenship Officer requires
confirmation of information provided and would necessarily have to obtain that
information from other agencies.
[42]
The
informal tone of the emails is one engendered by the form of communication
rather than from any undue closeness between officials of two separate
agencies. The formality of the June 13, 2006 letter confirms the official
nature of the communications between the two officials.
[43]
The
content of the emails does not present the appearance of bias due to any undue
pressure by the CBSA Officer to have the Citizenship application decided
quickly. The CBSA Officer’s initial May 18, 2006 email inquires about the
application and indicates documentation will be forwarded from CBSA files. The
Citizenship Officer’s May 19, 2006 reply indicates that the Department is
following its standard procedures. The October 10, 2006 email by the CBSA Officer
is more in the nature of a follow up inquiry to her earlier June 13, 2006 letter.
There is no appearance of bias
in the Record that would cause a reasonable person to conclude that the CBSA
Officer unduly influenced or pressured the Citizenship Officer to make a
decision, or that the Citizenship Officer was unduly influenced.
Did the Officer err in concluding that the Applicant came within the
ambit of section 3(2) of the Citizenship Act?
[44]
The Applicant argues
that the Citizenship Officer erred in simply asserting that the Applicant falls
within section 3(2) of the Citizenship Act while not providing any
reasons for this negative decision (Toro v. Minister of Employment and
Immigration, [1981] 1 F.C. 652 at 653). The Applicant submits that the issue
in front of the Citizenship Officer was, whether at the time of the Applicant’s
birth, his father was a diplomatic or consular officer or other representative
or employee in Canada of a foreign government. The Applicant
argues that notwithstanding that his father was registered as a consular
official at the time of his birth, he adduced evidence to demonstrate that his
father was not engaged in consular functions and therefore section 3(2) of the Citizenship
Act should not apply.
[45]
The Applicant states
that a functional and purposive approach should be taken when interpreting
section 3(2) of the Citizenship Act. This approach was taken by the
Supreme Court of Canada in Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, Chief Justice McLachlin in
interpreting provisions of the IRPA held, for the Court, 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.
[46]
In following the
guidance provided by the Supreme Court, the Applicant states that in
interpreting section 3(2) of the Citizenship Act, it is important to first
understand its purpose. The Applicant notes that a parent need not have legal
status in Canada for child born here to obtain
citizenship. The Applicant argues then that the purpose of the provision
cannot be to deny citizenship to children of persons who are not permanent
residents or citizens of Canada. On the contrary, according to the
Applicant, the purpose of the provision is related to international relations
and to the role and function of a diplomat in representing his country.
Continuing with the analysis, the Applicant submits that when deciding whether
section 3(2) should be applied to a particular individual it is necessary to
consider the person’s actual function and not his nominal title.
[47]
The Applicant maintains
that his father was an employee of a non-governmental organization as
demonstrated by the evidence before the Citizenship Officer. The Applicant
submits that the Citizenship Officer’s reasons do not disclose why she
determined that the Applicant’s father was diplomatic official despite this
evidence. The Applicant claims that the Citizenship Officer’s reasons fail to
consider the totality of the evidence and therefore the Citizenship Officer
erred in law.
[48]
The Applicant argues
that section 3 of the Citizenship Act deals with the conferring of
citizenship. Its purpose is to ensure that persons who have an important
connection to Canada, that is persons who are born here, have a
right to citizenship. Subsection 3(2) is an exception to the general rule, and
based on the rules of statutory interpretation should be interpreted narrowly.
In Brossard (Town) v. Quebec, [1988] 2 S.C.R. 279 at para. 56, the Supreme Court of Canada reaffirmed
that statutory exceptions which take away rights that otherwise benefit from a
liberal and broad interpretation should be read narrowly.
[49]
The principles of
statutory interpretation require that both the English and French text be
examined. The English and French texts of section 3(2)(a) of the Citizenship
Act,, for ease of reference, are set out below:
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Not applicable to children of foreign diplomats,
etc.
(2) Paragraph
(1)(a) does not apply to a person if, at the time of his birth,
neither of his parents was a citizen or lawfully admitted to Canada for permanent residence and either of his parents
was
(a) a diplomatic or consular
officer or other representative or employee in Canada of a foreign government;
|
Inapplicabilité aux enfants de diplomates étrangers,
etc.
(2) L’alinéa (1)a)
ne s’applique pas à la personne dont, au moment de la naissance, les parents
n’avaient qualité ni de citoyens ni de résidents permanents et dont le père
ou la mère était :
a)
agent diplomatique ou consulaire, représentant à un autre titre ou au service
au Canada d’un gouvernement étranger;
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The French version of section 3(2) of the Citizenship
Act denies citizenship to a child of a diplomat as well as persons working
in the service of a foreign government. In English, the child of an “employee”
of a foreign government is excluded from citizenship. The Applicant submits
that regardless of the word used, the concept itself is clear: the person must
be in the actual employ of the government or be its representative. The
Applicant argues that in this case his father maintained that he was neither an
employee nor a representative of his government and so the section 3(2)
exception should not apply.
[50]
The Applicant further
argues that when applying the principles of statutory interpretation, the
Citizenship Officer was required, but failed, to consider the actual function
carried out by the Applicant’s father to determine whether or not he was in
fact either an employee or a representative of the Malaysian government. The
Applicant submits that based on the evidence before the Citizenship Officer,
the only reasonable answer was that the Applicant’s father would not fit within
the ambit of the section 3(2) exclusion. The Citizenship Officer, according to
the Applicant, was required to do more than a review of the formal status of
the father and should have considered whether or not the Applicant’s father
carried out diplomatic functions.
[51]
The Applicant submits
that the function of a consular official as contained in the Vienna
Convention on Consular Relations, which forms Schedule II of the Foreign
Missions and International Organizations Act, S.C. 1991, c.41 above,
consists of, inter alia, protecting in the receiving State the interests
of the sending State and of its nationals, both individuals and bodies
corporate, within the limits prescribed by international law. Further a
“’consular officer’ means any person, including the head of a consular post,
entrusted in that capacity with the exercise of consular function”. Similarly,
Article 1 of the Vienna Convention of Diplomatic Relations, which forms
Schedule I of the Foreign Missions and International Organizations Act,
above, states that the functions of a diplomatic mission consists of, inter
alia, “representing the sending State in the receiving State”. The
Applicant argues that the focus of consular and diplomatic functions is on the
protection and representation of interests of the sending State. In the case
at bar, the Applicant maintains that as his father was employed by a
non-governmental organization, no State interests were being represented.
[52]
The Applicant argues
that if the Citizenship Officer had undertaken a functional analysis, it would
have been apparent, notwithstanding his father’s diplomatic passport, that his
father was not involved in diplomatic or consular functions. Rather, the
Applicant’s father was involved in the promotion of trade on behalf of a
non-governmental organization. While in Malaysia, the Applicant’s father was not an employee of the government, but
rather a quasi-governmental organization. The Applicant submits that his
father’s colleague in Boston, employed in the same capacity, was not
given diplomatic status and this supports his contention that his father was
not a diplomat.
[53]
The Applicant maintains
that based on the totality of evidence before her, the Citizenship Officer erred
in finding that the Applicant fit within section 3(2) of the Citizenship Act.
[54]
The Respondent argues
that the Citizenship Act is explicit by virtue of section 3(2) that the
statutory right to citizenship does not apply to persons who, at the time of their
birth neither of their parents was a citizen or permanent resident of Canada
and either of the parents was: (a) a diplomatic officer or (b) a consular
officer or (c) other representative in Canada of a foreign government or (d) an
employee in Canada of a foreign government. Section 3(2)(a) must be given its
ordinary common sense meaning, which refers to the understanding that
spontaneously emerges when words are read in their immediate context.
[55]
The Respondent argues
that to employ the interpretation of section 3(2)(a) as advocated by the
Applicant would be to put too much strain on the conventions of language. The
interpretation given to a legislative provision must be plausible and “must
still respect the actual words which express the legislative intention”
(Sullivan and Driedger on the Construction of Statutes, 4th
edition, at 35).
[56]
The Respondent highlights
that the Citizenship Officer’s decision was based on the evidence submitted:
(a)
the Applicant was born in Canada in 1979;
(b)
At the time of his birth in Canada, neither of
his parents were Canadian citizens or lawfully admitted to Canada as permanent residents;
(c)
The Applicant’s father was an employee of MIDA
in 1979;
(d)
His role was to promote the activities of MIDA
and the interests of the Malaysian government, specifically, investment from Canada to Malaysia;
(e)
He came to Canada with a diplomatic passport; and
(f)
Evidence from Malaysian authorities indicates
that he was registered as Vice-Consul
[57]
Based on the above,
the Citizenship Officer found that the Applicant’s father was employed by a
foreign government in Canada. As a result, the Officer concluded that
the Applicant fell within the ambit of section 3(2) of the Citizenship Act.
The Respondent argues that the reasons of the Citizenship Officer were not
deficient; in fact, they are explicit, based as they are on the finding that
the Applicant’s father was employed by a foreign government and in possession
of a diplomatic passport.
[58]
The Respondent also
notes that the Applicant originally submitted to the Citizenship Officer that
his father was employed by a quasi-governmental organization. However, in
material filed with this Court, he characterizes his father’s employer as a
non-governmental body (see Tribunal Record at 6; Tribunal Record at 12; Tribunal
Record at 20). The functional duties of the Applicant’s
father, according to the Respondent, are irrelevant. The Applicant’s father
was a representative and an employee of the Malaysian government. At the
relevant time, he held a diplomatic passport, was Vice-Consul and represented
the interests of the Malaysian government in promoting foreign investment into Malaysia. All amount to sufficient facts to place the
Applicant within the ambit of section 3(2) of the Citizenship Act.
[59]
The Respondent relies
on Solis v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 407 at para. 4, for the
proposition that the term “citizen” has no meaning apart from statute. It is a
creature of federal statute law. As such, the Citizenship Officer has no
discretion to look behind the Applicant’s father’s job title. Once the father
was determined to be a person described under section 3(2) of the Citizenship
Act, there was no room to reach a conclusion different than what was
reached in this case. Further, the Respondent argues that the Applicant has
not cited any authority for the contention that the officer could perform a
“review of the status of the father”.
[60]
The Respondent argues
that it is irrelevant whether MIDA Officers in the U.S.A. are not given diplomatic passports. The facts of this case are that the
Applicant’s father was given a diplomatic passport and did hold the position of
Vice-Consul.
[61]
The Citizenship Officer
had the Applicant’s submissions that his father did not perform the duties of a
diplomat or consular official and the father’s contract of employment.
However, the Officer also had the documents from the Canadian Office of
Protocol and the letter from the High Commission of Malaysia in Ottawa which both indicated that, at the time of the
Applicant’s birth, the Applicant’s father held the position of Vice-Consul.
[62]
Further, on the
family’s return to Canada in 1987, the Applicant was admitted as a
permanent resident. This would not have been possible if the Applicant was a
Canadian citizen. The Applicant’s father could have addressed the issue of
the Applicant’s citizenship at that time but did not.
[63]
It is my opinion that
the Applicant has not submitted any persuasive evidence to show that his father
was not a diplomat during the relevant time. The Citizenship Officer did not
err in her interpretation of the statute.
The Charter
Arguments:
i. Does the Citizenship Officer have jurisdiction to consider
the Charter?
ii. If the Citizenship Officer does not have
jurisdiction to consider the Charter, does this Court?
iii. Does section 3(2)(a) of the Citizenship Act
offend section 7 or 15 of the Charter?
[64]
Despite the submissions
made by the Applicant to the Citizenship Officer that his situation engages
section 7 and 15 of the Charter and the constitutionality of section
3(2) of the Citizenship Act, the Citizenship Officer does not have
jurisdiction to consider Charter and constitutional grounds. The
Applicant does not submit any authority or case law to show otherwise.
[65]
Notwithstanding that the
Citizenship Officer does not have jurisdiction to consider Charter and
constitutional issues, this Court is not precluded from doing so on
judicial review (Gwala v. Canada (Minister of Citizenship and Immigration),
[1999] F.C.J. No. 792, at paras. 3-4 (F.C.A.); see also Raza v. Canada
(Minister of Citizenship and Immigration), [1998] F.C.J No. 1826 at para.
30).
[66]
The Applicant argues
that a denial of citizenship engages section 7 of the Charter because it
puts him at risk of deportation which will result in severe state-imposed
psychological stress. This stress will be a result of the fact that the
Applicant for a major portion of his life believed he was a Canadian citizen, and
has strong ties to Canada: his parents and twin brothers are here
and his fiancée, also a Canadian citizen is here. He is a stranger to Malaysia. In addition, having been convicted of an offence in
Canada, upon his return to Malaysia, the Applicant claims he could be
imprisoned for two years.
[67]
The Applicant relies on
Blencoe v. British
Columbia (Human Rights
Commission), [2000] 2 S.C.R.
307 which held that section 7 of the Charter is engaged in
circumstances where severe state-imposed psychological stress results from a
determination by government officials. The Applicant also refers to Taylor
v. Minister of Citizenship and Immigration 2006 FC 1053 where the Federal
Court accepted that that loss of citizenship engages an individual’s rights to
“liberty” and “security of person”.
[68]
Notwithstanding the
significance of citizenship, the short answer is that the denial of citizenship
is not synonymous with deportation. The Applicant’s section 7 Charter rights,
if applicable, would be engaged if a deportation is crystallized. This is a
decision that has not yet been made and has no fixed certainty.
[69]
The Applicant will
have, at the very least, an opportunity to make an application to remain on
humanitarian and compassionate grounds if he is confronted with an Immigration
inadmissibility decision. The Applicant may then, if he chooses, argue that
deportation, if that is the ultimate decision of the Minister, engages his
section 7 Charter rights.
[70]
The Applicant has
failed to demonstrate that there exists for him a real or imminent deprivation
of life, liberty or security of the person arising from the Citizenship
Officer’s decision. (R v. White, [1999] 2 S.C.R. 417). The only
imminent consequence that the Applicant will be subject to is that he is not
entitled to Canadian citizenship by virtue of his birth.
[71]
The Applicant also
submits that denial of citizenship to him, under section 3(2) of the Citizenship
Act, violates section 15(1) of the Charter. Under section 3(1) of
the Citizenship Act those born in Canada after February14, 1977 are Canadian citizens. The Applicant, despite
being born in Canada in November 1979, is denied the right to
citizenship based on the diplomatic title his father held at the time of his
birth.
[72]
The test for whether a
statute offends section 15(1) of the Charter was set out in Little
Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120 at para. 110:
[i]t is now clearly established that the
analysis proceeds in three stages with close regard to context. At the first
stage the claimant must show that the law, program or activity imposes
differential treatment between the claimant and others with whom the claimant
may fairly claim equality. The second stage requires the claimant to
demonstrate that this differentiation is based on one or more of the enumerated
or analogous grounds. The third stage requires the claimant to establish that
the differentiation amounts to a form of discrimination that has the effect of
demeaning the claimant's human dignity. The "dignity" aspect of the
test is designed to weed out trivial or other complaints that do not engage the
purpose of the equality provision. In Law, supra, the Court stated, at para.
51:
It may be said that the purpose of s.
15(1) is to prevent the violation of essential human dignity and freedom
through the imposition of disadvantage, stereotyping, or political or social
prejudice, and to promote a society in which all persons enjoy equal
recognition at law as human beings or as members of Canadian society, equally
capable and equally deserving of concern, respect and consideration.
[73]
The requirements of
section 3(2)(a) and (c) of the Citizenship Act do impose differential
treatment between the Applicant and others with whom he may fairly claim
equality. The first step of the section 15 test is met.
[74]
To succeed on the
second step of the section 15 test, the Applicant must demonstrate that the
differential treatment is based on an enumerated or analogous ground. The case
at bar must proceed under an analogous ground analysis as the status of a child
of a foreign diplomat is not an enumerated ground. For a claim to based on
analogous ground, it must be immutable, that is, not susceptible to change.
The Applicant argues that the employment status of a parent at the time of
birth is something outside of the control of the child, and in that sense, it
is immutable.
[75]
This exact issue was
dealt with for the first time recently by Justice Michel Shore. In the May 2007 decision of Al-Ghamadi
v. Canada (Minister of Foreign Affairs and
International Trade),
[2007] F.C.J. No. 758, Justice
Shore held that section 3(2)
of the Citizenship Act does not offend section 7 or 15(1) of the Charter.
Justice Shore in Al-Ghamdi, above at para. 58, states:
Although immutability of the characteristic is a
strong indicator, immutability on its own is not necessarily sufficient. The
Courts have recognized that the hallmark of the analogous grounds is that they
protect a discrete and insular minority or a group that has been historically
discriminated against.
[76]
Thus even if this Court
views the status of the Applicant as a result of his father’s employment as
immutable, it cannot be said, and the Applicant has not offered, how his status
as a child of an individual enjoying diplomatic immunity is a characteristic
that would be associated with having suffered historical discrimination.
[77]
On the last step of the
section 15 Charter test, assuming that that the characteristic of the
Applicant being the child of diplomat is analogous to an enumerated ground, it
is clear that the distinction does not have the effect of demeaning the Applicant’s
dignity. Justice Shore in Al-Ghamdi, above, at para. 65, states:
The only individuals covered in paragraphs
3(2)(a) and (c) of the Citizenship Act are children of individuals with
diplomatic status. These are necessarily individuals who enter Canada under special circumstances and without
any of the normal procedures. Most importantly, while in Canada, they are granted all of the immunities
and privileges of diplomats; it is untenable to maintain that the treatment
could offend their "essential human dignity" viewed in this context.
[78]
Section 3(2) of the Citizenship
Act cannot be seen to violate the essential human dignity of the Applicant
through the imposition of disadvantage, stereotyping, or political or social
prejudice. As a result, and in accordance with Justice Shore’s decision in Al-Ghamdi, above, the
Applicant’s section 15 Charter claim must fail.
[79]
I also note that this judicial
review does not exhaust the Applicant’s remedies. The IRPA provides a means
to ensure that his rights are not violated during the process by which his
right to remain in Canada is considered. The Applicant is a
permanent resident of Canada. Before a permanent resident is deported
certain procedures need to take place. First, an inadmissibility report is
authored; second, if the Minister is of the opinion that the report is
well-founded, the case is referred to the Immigration Division for an
admissibility hearing (the Applicant’s case is at this stage). Third, the
Immigration Division shall only issue a removal order against the Applicant, if
it is satisfied that the Applicant is inadmissible. Once the removal order is
in force, the Applicant will lose his permanent residence status. Fourth, if
the Applicant loses his permanent residence status, he has the option of making
an application to stay in Canada based on H&C grounds. The Applicant
may also make an application for pre-removal risk assessment. In addition, the
Federal Court has judicial review jurisdiction each step of the way.
[80]
The Applicant has not
demonstrated that his section 7 rights have been violated as a result of the
denial of citizenship. Nor has the Applicant demonstrated that the decision
infringes his section 15 rights.
Conclusion
[81]
The
Applicant was not denied procedural fairness by not being given notice that the
Citizenship Officer considered documents provided by the CBSA that the
Applicant was aware of and had addressed in his submissions to the Officer.
Nor was there a reasonable apprehension of bias arising from the exchanges
between the Citizenship Officer and the CBSA Officer whose exchange of
information was within the scope of their respective duties.
[82]
The
Citizenship Officer’s interpretation of section 3(2) of the Citizenship Act
is in accordance with the legislation. The Officer is not required to go
behind the plain words of the Citizenship Act and the Applicant’s
father’s official status.
[83]
The
Applicant’s section 7 Charter rights were not engaged in the process of
considering the Applicant’s eligibility for citizenship. Nor has the Applicant
demonstrated that the Citizenship Officer’s decision infringed his section 15 Charter
rights.
[84]
The
application for judicial review does not succeed.
JUDGMENT
THIS
COURT ORDERS that:
1. This application for judicial review
is dismissed.
“Leonard
S. Mandamin”
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