Date:
20131025
Docket:
T-1010-12
Citation:
2013 FC 1089
Ottawa, Ontario,
this 25th day of October 2013
Present: The
Honourable Mr. Justice Roy
BETWEEN:
JAMAL MURAD
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
In
what appear to me to be the peculiar circumstances of this case, is it
appropriate for the Court to exercise its discretion and order the Minister of
Citizenship and Immigration to grant citizenship to the applicant? That is the
question.
[2]
The
applicant, Dr. Jamal Murad, met with a citizenship judge on January 17,
2011. She should have decided on his application within 60 days, with a maximum possible
extension by Citizenship and Immigration Canada [CIC] of an additional six
months for further investigation. In the event, a recommendation was made on
the application in March 2011, within the period allowed by the law, but never
transmitted to the applicant. By May 23, 2012, when he filed the present application,
the applicant had still received no decision on his citizenship application.
For that, he sought the redress of mandamus, as per paragraph 18.1(3)(a)
of the Federal Courts Act, RSC 1985, c F-7:
|
18.1 (1) An
application for judicial review may be made by the Attorney General of Canada
or by anyone directly affected by the matter in respect of which relief is
sought.
(2) An
application for judicial review in respect of a decision or an order of a
federal board, commission or other tribunal shall be made within 30 days
after the time the decision or order was first communicated by the federal
board, commission or other tribunal to the office of the Deputy Attorney
General of Canada or to the party directly affected by it, or within any
further time that a judge of the Federal Court may fix or allow before or
after the end of those 30 days.
(3) On
an application for judicial review, the Federal Court may
(a) order
a federal board, commission or other tribunal to do any act or thing it has
unlawfully failed or refused to do or has unreasonably delayed in doing; or
|
18.1 (1) Une
demande de contrôle judiciaire peut être présentée par le procureur général
du Canada ou par quiconque est directement touché par l’objet de la demande.
(2) Les
demandes de contrôle judiciaire sont à présenter dans les trente jours qui
suivent la première communication, par l’office fédéral, de sa décision ou de
son ordonnance au bureau du sous-procureur général du Canada ou à la partie
concernée, ou dans le délai supplémentaire qu’un juge de la Cour fédérale
peut, avant ou après l’expiration de ces trente jours, fixer ou accorder.
(3) Sur
présentation d’une demande de contrôle judiciaire, la Cour fédérale
peut :
a) ordonner à
l’office fédéral en cause d’accomplir tout acte qu’il a illégalement omis ou
refusé d’accomplir ou dont il a retardé l’exécution de manière déraisonnable;
|
[3]
In
July 2012, two months after the applicant had requested judicial review by the
Federal Court, a CIC agent reviewed his file in his absence and decided that in
spite of the citizenship judge’s recommendation on which no action had been
taken for 16 months, a report of inadmissibility under subsection 44(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] should be issued. The
applicant has therefore been sent a notice to appear for a determination of
whether he should be removed from Canada. As a result, the
respondent has raised the additional question of whether the July 2012
inadmissibility decision can be dealt with in the present proceeding.
[4]
For
the reasons that follow, I have reached the conclusion that the intervention of
this Court is warranted and that a writ of mandamus ought to be issued.
Facts
[5]
The facts of this case, as found in the record before the Court,
have some special importance.
[6]
The applicant was born on January 1, 1979. His father
practiced as a psychiatrist in Jordan until retirement. The whole family emigrated to Canada in 2004: Dr. Ibrahim Murad and his
wife Fadwa Adel Alnabelsi Murad, three sons (Serri, Omar, and the applicant
Jamal), a daughter (Dina), and a granddaughter born in 2006 (Judy Abu Sheikha).
In 2008, son-in-law Muammar Abu Sheikha joined them.
[7]
The
applicant declares that he moved to Montréal from Jerusalem, Palestine, in November 2004, although he seems to have been living in Amman, Jordan. His Jordanian passport issued on July 17, 2010 gives both his place of birth
and his address as “Jerusalem”. He explained to CIC when confronted over this
that he was making a political statement, which CIC seems to have accepted.
[8]
The
applicant, who was trained abroad as a medical doctor, passed a series of Canadian medical certification exams in 2005 and 2006,
enrolled in a graduate program in medicine at McGill University, and took
French courses. A certificate from the Medical Council of Canada is in the
record and states that he is entered in the Canadian Medical Register, license
number 103151. A letter from the applicant’s father indicates that the
applicant is living with the family and that they are supporting him until he
can establish a career in Canada. In the summers of 2005 and 2006 the applicant
took family vacations of 16 and 62 days respectively in Amman, Jordan. As of the date of the proceedings, he lived in La Prairie, outside of Montréal.
[9]
Dr. Murad applied for Canadian citizenship on February 11, 2008,
having fulfilled the residency requirement. Unfortunately, he could not secure
a job as a doctor in this country. The record holds refusal letters from many
places in Ontario, Nova Scotia, and British Columbia. I note that the
competition for positions seems to have been fairly intense. For instance, in
2007, the University of British Columbia’s Family Practice Residency program
“received over 450 applications to fill only 1 position”. In 2008, there were
“over ninety international medical graduate applicants for the one designated
position” at the University of Toronto and “over 110 applications from
excellent candidates from across Canada for our 2 IMG program residency
positions.” In 2009, “[o]ver 1300 applications were submitted for our 70
positions” in Ontario Family Medicine residency programs.
[10]
Without
a position in Canada, the applicant returned to Jordan for extended periods
after filing his citizenship application. In February 2008, he reported 74 days
of absence from Canada during the preceding three years; when he updated his
file in November 2009, he reported a total of 621 days of absence.
[11]
Dr. Murad took the citizenship test one year after his
application, in February 2009, and passed. Following the test, he met with a
CIC agent, who was concerned that he had left Canada for eight months after accumulating
the required residency time and submitting his application. In March 2009, CIC
asked him to fill out a questionnaire and provide supporting documents, which
he did.
[12]
It is fair to say that the applicant’s file generated interest at
Citizenship and Immigration Canada. While Dr. Murad kept on waiting for a
hearing before a citizenship judge, CIC was considering his file. On
October 12, 2010, a memorandum by a CIC official, who would continue to
show a special interest throughout, raised several questions about his case.
[13]
First, the official found it unlikely that Dr. Murad would have
shared a small apartment with his whole family. Handwritten notes by someone on
the copy of her memo in the Court record that do not appear to be in the same
handwriting as the citizenship judge’s say “Oui. Début difficile” to that
point. The official also notes that Dr. Murad had no income from 2004 to 2007,
to which the note writer commented “no work: study”. The official says that the
July and August 2005, and the July and August 2006 bank statements are missing;
“OK à venir” is the comment. The memo makes a few other observations on the documentation,
including that there is no lease document for the first three addresses in Canada. The note writer comments “premier mois: Hotel puis « Le Lincoln ».”
[14]
On January 17, 2011, close to three years after his application, Dr.
Murad presented himself at a hearing by citizenship judge Renée Giroux. The judge
said that she was fully satisfied and would render a decision as soon as the applicant
provided some missing account statements covering his summer vacations.
[15]
The
citizenship judge had reviewed two letters of acceptance by McGill University
from before July 2005, bank and credit card account statements from 2005 and
2006, a transcript from McGill covering the 2005-2006 academic year and the
autumn semester of 2006, a letter confirming his withdrawal from McGill’s MSc
program in March 2007, and letters turning the applicant down for jobs in
Canada from the end of 2007 through to 2010. The citizenship judge had been
satisfied that these demonstrated sufficient residence.
[16]
Dr. Murad sent the statements. The citizenship judge recommended
approval on March 11, 2011. The “Notice to the Minister of the Decision of the
Citizenship Judge”, completed by hand and signed by the judge on March 11,
says:
Excellente crédibilité en audience le 17 janv 2011. Vit avec sa
famille à La Prairie. Documentation satisfaisante incluant celle qui a été
produite à l’audience. Études terminées: en recherche d’emploi. Je n’ai aucune
raison de douter de sa résidence au Cda + excellente expertise à conserver ici.
[17]
The
applicant was not notified of the judge’s finding. Dr. Murad heard nothing more
for over a year.
[18]
Meanwhile,
unknown to the applicant, CIC internal correspondence from April and May 2011
shows that the consideration given by some within CIC to appealing the citizenship
judge’s decision was defeated by the expiration of the 60-day time limit for an
appeal, which ran out on May 10, 2011. In Dr. Murad’s case, as no decision
had been issued to him, Case Management at CIC authorized continued inquiries.
[19]
However,
it appears that the file remained inactive for the following months. By October
2011, the various security attestations (from CIC, the Royal Canadian Mounted
Police and the Canadian Security Intelligence Service) provided by the
applicant for his citizenship application began to expire.
[20]
Another
few months passed before the record shows that the same official noted on
January 4, 2012, close to one year after the hearing before the
citizenship judge and four years since the application:
Les clients sont en attente de
cérémonie. Nous n’avons plus d’autre choix que d’approuver les demandes,
cependant nous avions soulevé au juge que Dina ne soumettait pas un passeport
manquant, situation semblable selon les notes de l’aéroport.
[21]
The
official was seemingly instructed, in spite of the note, to call the applicant
for an interview. A letter, dated March 30, 2012, some three months after
the notation of January 4, requested that a complete questionnaire be filled
out, together with providing another complete set of documents. The applicant
was requested to present himself for an interview with CIC officials two weeks
later.
[22]
The
interview scheduled for April 19, 2012 did not take place. It appears that the
applicant had been told to present himself with his mother and sister. Instead
he presented himself alone, at 9:00 a.m. as requested. What followed can be
pieced together from the documentary evidence before the Court. The respondent
initially said that “[a]s the Applicants could not be interviewed together,
they were called for another interview.” Dr. Murad, however, said that he
presented himself at 9:00 a.m. as requested, waited for an hour, and then “I
was told after 10:00 am that the agent in charge of my file was not in the
office that day and that no one was free to see me”. In its Memorandum of Fact
and Law, the respondent clarified that when Dr. Murad presented himself without
his mother and sister, whom CIC also wanted to interview, “it was indicated to
him that Liliane Paré was not available”. The affidavit of
Liliane Paré actually states that “il a été indiqué au demandeur que je n’étais
pas disponible pour une entrevue”. The evidence shows that Ms. Paré was
in the office and pretended to be unavailable. Her colleagues went along with
this pretense. The interview was rescheduled for April 26.
[23]
It
seems that CIC had suspicions concerning Dr. Murad’s continued presence in Canada. The respondent says that CIC had previously twice tried to intercept Dr. Murad
on his arrival in Canada from trips abroad so as to interview him about
residency; once on January 13, 2011 just before the hearing with the citizenship
judge, and again on April 16, 2012. Both times, according to the respondent, Dr.
Murad’s customs card would have been coded for questioning but it is alleged
that he had filled out two cards and used the other one to pass through customs
without being diverted for an interview. On the second occasion an agent caught
up with him and interviewed him despite this manoeuvre. Dr. Murad was taken to
the immigration offices at Pierre Elliott Trudeau International Airport in Montréal on the April 2012 occasion and asked about his residence, work, and
travels. We do not know what, if anything came of that interview at the
Montréal airport.
[24]
It
is at this point that Dr. Murad consulted a lawyer. The advice received was
that a decision of the citizenship judge should have been rendered at the
latest 60 days after the hearing and that the Minister was entitled to postpone
a final decision for an additional six months. Thus, a decision was due since,
at the latest, September 2011.
[25]
A postponement of the April 26 interview occurred and Dr. Murad’s
lawyer wrote to CIC on May 1, challenging the interview demand and demanding
that the citizenship judge’s recommendation be implemented. CIC
re-rescheduled the interview for June 14 and apparently declined to answer
counsel’s letter.
[26]
On
May 23, 2012 the applicant filed his application for mandamus which is
before this Court. Dr. Murad’s lawyer wrote to CIC on June 12, again
challenging the interview demand. The applicant did not show up for the June 14
appointment. CIC then, for the fourth time, rescheduled to July 11. Dr. Murad
moved on July 9 for a stay of proceedings to prevent the interview from taking
place before the outcome of the citizenship application was determined. The
respondent resisted.
[27]
The
judicial phase of the saga was underway. The Federal Court gave oral direction
on July 9 instructing the respondent to provide by the next day an
explanation of the purpose of the interview, since as it stood “the Court does
not understand the purpose of these motions and is not inclined to intervene in
what appears to be an administrative process.” After receiving explanations, the
Court declined to intervene in an administrative procedure, doubting that the Court
had jurisdiction, and told the applicant that if the interview resulted in a
decision which he did not agree with, he could try to challenge that decision
through judicial review.
[28]
Dr.
Murad’s counsel wrote to CIC on July 10, advising that his client could not
attend the interview scheduled for the 11th at such short notice and
requesting a new date. Instead, on the 11th, Ms. Paré, the
agent who had been “not available” in April 2012, examined Dr. Murad’s file in
his absence and decided that he had not fulfilled his residency obligations
under the IRPA. On July 12, she issued a report of inadmissibility under subsection
44(1) of IRPA.
[29]
The
inadmissibility report states that Dr. Murad became a permanent resident on
November 21, 2004, that he did not present himself at interviews in June
and July 2012 to demonstrate that he had spent the required time in Canada and that his passport stamps demonstrated no more than 516 days in Canada in the past five
years. It concluded with one sentence stating that based on the available
information, there were insufficient humanitarian considerations to justify
continuing his status as a permanent resident.
[30]
Dr.
Murad was sent a notice to appear on July 24, 2012 for a proceeding under subsection 44(2)
of the Act to determine whether he should be removed from Canada, but he did not appear. To date, no removal order has been issued. I indicated
during the hearing of this case that it was my expectation that no action would
be taken while the case is under reserve.
The issues
[31]
In my view, two issues need to be resolved in this case:
(1) Did
the respondent err in withholding its approval for the applicant to be called
for the citizenship oath, instead conducting an investigation based on the
residency obligations, twelve months after the citizenship judge had issued her
recommendation?
(2) Does
this Court have jurisdiction to quash the inadmissibility report issued under
subsection 44(1) of the Act?
The position of the parties
[32]
The applicant argues that he qualifies for a mandamus. The
conditions for the issuance of a mandamus are well known and the parties
do not disagree. Their disagreement is rather about whether or not the
applicant meets those conditions.
[33]
In Apotex Inc. v Canada (Attorney General), [1994] 1 FC
742, the Federal Court of Appeal outlined the conditions that must be satisfied
for the writ of mandamus to be issued:
(1) There must be a public legal duty to act.
(2) The duty must be owed to the applicant.
(3) There is a clear right to the performance of that duty,
in particular:
(a) the applicant has satisfied all conditions precedent
giving rise to the duty;
(b) there was (i) a prior demand for performance of the
duty; (ii) a reasonable time to comply with the demand unless refused outright;
and (iii) a subsequent refusal which can be either expressed or implied, e.g.
unreasonable delay.
(4) No other adequate remedy is available to the applicant.
(5) The order sought will be of some practical value or
effect.
(6) The Court in the exercise of discretion finds no
equitable bar to the relief sought.
(7) On a “balance of convenience” an order in the nature of mandamus
should issue.
[34]
In the view of the applicant, relying on Conille v Canada
(Minister of Citizenship and Immigration), [1999] 2 FC 33 (TD) [Conille],
subsection 5(1) of the Citizenship Act, RSC 1985, c C-29 (the “Act”) requires
that citizenship be granted when the requirements are met. Subsection 5(1) is
unequivocal:
|
5. (1) The
Minister shall grant citizenship to any person who
(a) makes
application for citizenship;
(b) is
eighteen years of age or over;
(c) is
a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee
Protection Act, and has, within the four years
immediately preceding the date of his or her application, accumulated at
least three years of residence in Canada calculated in the following manner:
(i) for
every day during which the person was resident
in Canada before his lawful admission to Canada
for permanent residence the person shall be
deemed to have accumulated one-half of a day of
residence, and
(ii) for
every day during which the person was resident
in Canada after his lawful admission to Canada
for permanent residence the person shall be
deemed to have accumulated one day of
residence;
(d) has
an adequate knowledge of one of the official languages of Canada;
(e) has
an adequate knowledge of Canada and of the responsibilities and privileges of
citizenship; and
(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.
|
5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois :
a) en fait la demande;
b) est âgée d’au moins dix-huit ans;
c) est un résident permanent au sens
du paragraphe 2(1) de la Loi sur l’immigration et la
protection des réfugiés et a, dans les quatre
ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins
trois ans en tout, la durée de sa résidence étant calculée de la manière
suivante :
(i) un
demi-jour pour chaque jour de résidence au
Canada avant son admission à titre de résident
permanent,
(ii) un jour
pour chaque jour de résidence au Canada après son admission à titre de
résident permanent;
d) a une connaissance suffisante de
l’une des langues officielles du Canada;
e) a une connaissance suffisante du
Canada et des responsabilités et avantages conférés par la citoyenneté;
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.
|
[35]
The citizenship judge, as mandated by the Act, made her
determination and advised the Minister. The Minister was not entitled to delay
indefinitely the processing of the citizenship application. Even if one were to
argue successfully that the suspension of the processing of the application,
pursuant to section 17 of the Act, can be for six months after the citizenship
judge’s determination, as opposed to before the judge’s determination, that
six-month period expired in August 2011. The record shows that CIC was fully aware
of the 60-day deadline for an appeal that had come and gone by May 10, 2011.
There was a public duty to act.
[36]
Similarly, there was a clear right to the performance of the duty.
The decision in Khalil v Canada (Secretary of State), [1999] 4 FC 661
(FCA) [Khalil], does not find application. If the Minister can withhold
the conferral of citizenship on a person who otherwise qualifies, it must be
only if the Minister has information that the requirements of the Act have not
been met. Such was never the case.
[37]
The applicant argues that the other conditions for mandamus
are obviously met.
[38]
The respondent contends that the applicant has not met his burden
of satisfying the conditions. For the respondent, there was information
sufficient to deny the granting of citizenship. Relying on Khalil, supra,
it would not be an efficient use of resources to require that revocation of
citizenship be launched once information is discovered that affects the
granting of citizenship. It does not matter if the information is discovered
months after the six-month period of section 17 has expired, as long as a
satisfactory explanation is given.
[39]
Hence, the fact that the file was transferred to the Immigration
Division of CIC for verification more than nine months after the determination
made by the citizenship judge is the result of an administrative error that
should not benefit the applicant. In the three months that followed, the
applicant was summoned to an interview that did not take place because the two
family members that were to accompany the applicant were not present. The
inference is that it is the applicant’s fault if the interview did not occur.
[40]
The delays that followed are entirely imputable to the applicant
because he declined to participate in interviews. As a result, the respondent
argues the applicant did not establish a clear right to the performance of the
duty, if ever there was a duty.
[41]
The second issue relates to the ability of this Court to quash the
July 12, 2012 inadmissibility report under subsection 44(1) of the IRPA. The
applicant says little about the issue. The duty of procedural fairness would
have been denied, but the argument seems to be limited to “the unfair treatment
of the Applicant by the respondent agents constitutes a denial of procedural
fairness, a cornerstone of our judicial system” (paragraph 131 of the
Memorandum of Fact and Law).
[42]
The respondent relies on Rule 302 of the Federal Courts Rules,
SOR/98-106 and cases of this Court (Iwekaogwo v The Minister of Citizenship
and Immigration, 2006 FC 782; Gonsalves v The Minister of Citizenship
and Immigration, [1997] FCJ No 588 (QL)). Rule 302 edicts:
|
302. Unless the Court orders otherwise, an
application for judicial review shall be limited to a single order in respect
of which relief is sought.
|
302. Sauf ordonnance contraire de la Cour, la demande de contrôle
judiciaire ne peut porter que sur une seule ordonnance pour laquelle une
réparation est demandée.
|
Analysis
[43]
Being a Canadian citizen is a privilege, in that it confers
advantages available only to that group of people. With citizenship come some
constitutional rights. The Canadian citizen enjoys democratic rights (section 3
of the Canadian Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 (the “Charter”)). The Canadian citizen also benefits from mobility rights
under section 6 of the Charter. Minority language educational rights are also
conferred on a citizen (section 23 of the Charter).
[44]
In the case at hand, the conferral of citizenship to the applicant
would have made irrelevant whatever travel the applicant may have undertaken
after he had become a Canadian citizen. Subsection 6(1) of the Charter reads:
|
6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.
|
6. (1) Tout citoyen canadien a le droit de demeurer au Canada, d’y
entrer ou d’en sortir.
|
[45]
Citizenship is a creature of statute. As aptly put by the Federal
Court of Appeal in Taylor v Canada (Minister of Citizenship and Immigration),
2007 FCA 349, [2008] 3 FCR 324, Canadian citizenship “ has no meaning apart
from statute and that in order to be a Canadian citizen, a person must satisfy
the applicable statutory requirements” (at paragraph 50).
[46]
The Act uses mandatory language in creating an obligation for the
Minister to grant citizenship once the conditions set in legislation are met.
The introductory words of section 5 are worth restating:
|
5. (1) The
Minister shall grant citizenship to any person who
|
5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois :
|
[47]
There should not be much doubt of the imperative nature of the word
“shall” when found in legislation. Section 11 of the Interpretation Act,
RSC 1985, c I-21 leaves very little to the imagination:
|
11. The expression “shall” is to be construed
as imperative and the expression “may” as permissive.
|
11. L’obligation s’exprime essentiellement par l’indicatif présent
du verbe porteur de sens principal et, à l’occasion, par des verbes ou expressions
comportant cette notion. L’octroi de pouvoirs, de droits, d’autorisations ou
de facultés s’exprime essentiellement par le verbe « pouvoir » et,
à l’occasion, par des expressions comportant ces notions.
|
[48]
Thus, there is no doubt, in my view, that a public duty is owed to
the applicant. Furthermore, to the extent the conditions under the Act are met,
it is difficult to argue that there is not a clear right to the performance of
the duty: “the Minister shall grant citizenship”. I find myself in complete
agreement with my colleague Justice Danièle Tremblay-Lamer who found in Conille,
supra:
[14] Thus, when the citizenship judge
finds that the application meets the requirements, the Minister “shall” grant
citizenship to any person who meets the requirements therefor. Accordingly, in
the instant case, there is a public legal duty owed to the applicant where the
requirements are met.
[49]
In the case at bar, the citizenship judge had found for the
applicant. The appeal period had come and gone. The Act provides for the
procedure to be followed (sections 14 et al. of the Act) once the matter
has been referred to the citizenship judge. Cases like Conille, supra,
and Platonov v The Minister of Citizenship and Immigration, 2005 FC 569
[Platonov], are concerned with delays in processing applications by the
Registrar of Canadian Citizenship. The Registrar is mandated by subsection
11(1) of the Citizenship Regulations, SOR/93-246, to “cause to be
commenced the inquiries necessary to determine whether the person in respect of
whom the application is made meets the requirements of the Act and these
Regulations with respect to the application”.
[50]
In this case, the application was made on February 11, 2008.
Following, presumably, having conducted the inquiries provided for in section
11 of the Act, the Registrar allowed the case to go to the citizenship judge on
January 17, 2011. The citizenship judge had 60 days, under the Act, to make a
determination, and she did so on March 11, 2011. The respondent had 60 days to
appeal, and he did not.
[51]
Assuming, without deciding, that section 17 which allows the
Minister to suspend the processing of an application for six months applies
once the matter has been sent to the citizenship judge, as alluded to in Platonov,
supra, at paragraph 31, no decision had been made by the Minister within
that six-month period. Actually, some 14 months after the appeal period had
expired and more than four years after the application had originally been
launched, in spite of the mandatory language of section 5 of the Act, the
respondent had still not made a decision.
[52]
Parliament’s intent can be derived from, among other things, the
scheme of the legislation. Professor Sullivan, in Sullivan and Driedger on
the Construction of Statutes, 4th ed. (Markham: Butterworths,
2002), puts it this way at page 215:
Inferences about purpose are often drawn from analyzing the
structure or scheme embodied in an Act. In carrying out this analysis the
court, in effect, retraces the steps of the legislative drafter, examining the
relationship among provisions to surmise the overall plan. It attempts to
discover why each provision was included and the contribution each makes toward
implementing the legislature’s goals. It looks at the way provisions are
grouped under headings or divided into parts to discover a common theme or
rationale.
Here, the Act provides that
the citizenship judge has 60 days from the moment the application is referred
to him/her to make the determination that the conditions of the Act have been
met (subsection 14(1)); forthwith after having made that determination, the
Minister must be notified (subsection 14(2)); within 60 days any appeal of the
decision of the citizenship judge (subsection 14(5)) must be launched; the
processing of an application can be suspended for a maximum of six months
immediately following the day on which the processing is suspended (section
17).
[53]
It would be difficult to conclude from the scheme of the Act that
Parliament is not promoting diligence. Similarly, there is no avoiding, on the
evidence of this case, that diligence has been dearly missing.
[54]
The respondent sought to rely on Khalil, supra,
where a 2:1 majority of the Federal Court of Appeal found that the
discretionary nature of mandamus allowed for the refusal of the remedy.
[55]
The facts in Khalil are important to the disposition of the
case. Ms. Khalil signed with her husband a joint application for permanent
residence in Canada. The joint application had not disclosed that
Ms. Khalil’s husband had taken part in a terrorist attack against an El Al
plane at the Athens airport. After he had served about 18 months in jail, the
18-year sentence was commuted. The citizenship judge, not aware of these
particular circumstances, had found that citizenship ought to be granted.
[56]
As can be seen, a serious allegation of misrepresentation, prior
to the application for citizenship, was at the heart of the majority’s
concerns:
[14] … While the Minister has no
discretion to arbitrarily refuse to grant citizenship to a person who meets the
requirements, the Minister must retain some authority to refuse to grant
citizenship where it is discovered before citizenship is granted that there has
been a material misrepresentation, or some reasonable cause to believe that
there was.
[57]
The circumstances of the case before this Court are quite
different. There is no allegation on the record of misrepresentations having
been made by the applicant in order to gain permanent residence in Canada. At the time the mandamus application was launched, the respondent had only a
lack of diligence to show.
[58]
The respondent has suggested that the applicant does not have
clean hands because in at least one case he tried to evade an immigration
interview in 2012 upon returning to Canada. In my view, if a determination had
to be made as to who does not have clean hands, the respondent would have to
answer for what has been poor behaviour. At its most basic, the rule of law, on
which our country is founded (see the Preamble to the Canadian Charter of
Rights and Freedoms: Whereas Canada is founded upon principles that
recognize the supremacy of God and the rule of law), must mean this:
The core of the existing principle is, I suggest, that all persons
and authorities within the state, whether public or private, should be bound by
and entitled to the benefit of laws publicly made, taking effect (generally) in
the future and publicly administered in the Courts. (Tom Bingham, formerly Lord
Chief Justice of England and Wales and Senior Law Lord in the United Kingdom, in The Rule of Law (Toronto: Penguin Books, 2010) at 8).
An application for
citizenship commenced in early 2008 had not been resolved more than four years
later. Indeed, no explanation has been provided for why, between March 2011 and
this application for mandamus no diligence was shown by the respondent.
Instead, interviews were scheduled more than one year later, with the
Minister’s representatives resorting to a sham in order to refuse conducting
the interview in April 2012.
[59]
Suspicions that are not based on objective facts are not
reasonable suspicions (R v Chehil, 2013 SCC 49); they are merely
suspicions and they cannot justify the behaviour in this case. It is worth
repeating that one of the Minister’s representatives in this case, who was
denied the request to appeal the citizenship judge’s decision because the time
period for doing so had expired wrote, on January 4, 2012, that “(N)ous n’avons
plus d’autre choix que d’approuver les demandes …”.
[60]
The writer’s advice ought to have been taken seriously instead of
ordering new interviews. This case is significantly different from Khalil,
supra, because, in that case, the discretion exercised was in favour of
the state in view of the serious misrepresentations made to gain entry into Canada. Conversely, where there is misbehaviour on the part of some state actors who, on
this record, have not provided any explanation, the discretion should be
exercised in favour of an applicant.
[61]
What has taken place after the application for mandamus was
filed is not relevant to this application. The respondent argued that Rule 302 of
the Federal Courts Rules prevents a consideration of any further
decision. I agree. At the same time, had citizenship been granted when it
should have been, whatever travel done by the applicant would have been of no
moment given that the Constitution guarantees the right to enter and leave Canada (subsection 6(1) of the Charter). I note that an inadmissibility report, pursuant to
section 44 of the IRPA, can only be made about “a permanent resident or a
foreign national who is in Canada”. It cannot be made about a citizen of this
country.
Conclusion
[62]
I have come to the conclusion that discretion ought to be
exercised in favour of the applicant:
(1) The scheme of the Citizenship Act favour
diligence in the granting or denying of citizenship.
(2) The facts of this case show a lack of diligence on
the part of the respondent.
(3) Indeed, the facts of this case show a measure of
misbehaviour on the part of some state actors, without any satisfactory explanation
on this record.
(4) The Khalil exception does not find
application in the instant case.
(5) The conditions required in order for a mandamus application
have all been met:
(a) there is a public
duty to act;
(b) the public duty
is owed to the applicant;
(c) there is a clear
right to the performance of the duty.
(d) there is no
adequate remedy available;
(e) the order will be
of practical value or effect;
(f) there is no equitable bar to the exercise of discretion and
the relief sought;
(g) the balance of
convenience favours the applicant.
Costs
[63]
The applicant urged an award of costs on a solicitor-client basis.
I considered awarding costs on that basis, given the full discretionary power
given the Court (Rule 400). In my view, there was nothing in the conduct of the
litigation itself that was abusive. Moreover, I do not believe that this case
rises to the level described by the Supreme Court of Canada in Mackin v New
Brunswick (Minister of Finance), 2002 SCC 13, [2002] 1 S.C.R. 405, at paragraph
86:
The general rule in this regard is that solicitor-client costs are
awarded only on very rare occasions, for example when a party has displayed
reprehensible, scandalous or outrageous conduct […]. Reasons of public interest
may also justify the making of such an order.
In my view, Rule 407 should
find application here.
Conclusion
[64]
In view of the particular circumstances of this case, I believe an
order in the nature of a directed verdict is appropriate. As of the date of the
application for mandamus, close to four and a half years since the
original application for citizenship, there was no bar to the granting of
citizenship that had been identified. Furthermore, it would be unfortunate if any
further acrimony could delay some more the resolution of this matter.
[65]
The conditions for obtaining citizenship were obviously present in
January 2012 and nothing on this record suggests that there was anything
missing as of the date of the application for the issuance of a mandamus.
As the legislation speaks in terms of “[T]he Minister shall grant citizenship”,
there is not much to be gained by an order that would be less directive.
[66]
I find support for my conclusion that a more directive order is
appropriate in the decision of the Federal Court of Appeal in Lebon v
Minister of Public Safety and Emergency Preparedness, 2013 FCA 55:
[14] In our view, in these
circumstances, the Federal Court had at least two sources of power to exercise
its discretion in favour of making a mandatory order (mandamus):
. As
mentioned above, the Federal Court found the Minister’s conclusion that there
was a significant risk that Mr. LeBon would commit a “criminal organization
offence” to be unsupported by the evidence, and the Crown does not contest
this. With that factor off the table, all that remained were factors supporting
the transfer. In these circumstances, it was open to the Federal Court to
conclude on this evidence that the only lawful exercise of discretion is the
granting of transfer. In such circumstances, mandamus
lies: Apotex v. Canada (Attorney General), [1994] 3
S.C.R. 1100, aff’g [1994] 1
F.C. 742 at pages 767-768 (C.A.) (principles 3, 4(d) and 4(e)),
approved on this point in Trinity Western University v.
British Columbia College of Teachers, 2001 SCC
31, [2001] 1
S.C.R. 772 at paragraph 41.
. In the unusual
circumstances of this case, mandamus is also
available to prevent the further delay and harm that would be caused to Mr.
LeBon if the Minister were given a third chance to decide this matter in accordance
with law, in circumstances where the Minister did not follow this Court’s
earlier decision, paid “lip service” to it, and displayed a “closed mind” and “intransigency”:
see Pointon v. British Columbia (Superintendent of Motor
Vehicles), 2002 BCCA
516 at paragraph 27 (there is a jurisdiction to grant mandamus in exceptional circumstances where delay would
result in harm); see also the authorities cited in Blencoe
v. British Columbia (Human Rights Commission), 2000 SCC
44, [2000] 2
S.C.R. 307 at paragraph 148 (there is a jurisdiction, centuries-old, to grant mandamus
in exceptional cases of mal-administration) (per
LeBel J., dissenting, the majority not disagreeing with the existence of the
jurisdiction).
[67]
This case meets both. The Law provides that the Minister shall
grant citizenship if the conditions are met. The only lawful exercise of
discretion at this stage would appear to me to be the granting of citizenship.
Second, further delay and harm should be prevented.
[68]
Surely the rule of law commands that the respondent be bound by
the law and that the applicant be entitled to the benefit of the law. The
respondent has had more than ample time to flesh out its suspicions, if any,
about the claim to citizenship of the applicant.
JUDGMENT
THE COURT HEREBY ORDERS
AND ADJUDGES THAT:
1.
An
order in the nature of mandamus issues, requiring the respondent to
grant, in accordance with the law and section 5 of the Citizenship Act,
RSC 1985, c C-29, and as of the date of this application, May 23, 2012,
citizenship to the applicant within a period of thirty (30) days of this
Judgment.
2.
Costs
are awarded to the applicant and are to be assessed pursuant to Rule 407 of the
Federal Courts Rules, SOR/98-106.
“Yvan Roy”
Email this Content