Docket:
T-1225-13
Citation:
2014 FC 74
Ottawa, Ontario, January 22, 2014
PRESENT: The Honourable
Madam Justice Mactavish
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BETWEEN:
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ASAD STANIZAI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
Asad Stanizai seeks
an order of mandamus compelling the Minister of Citizenship and
Immigration to grant him Canadian citizenship, asserting that his application
for citizenship has been approved by a citizenship judge and that he meets all
of the statutory requirements for citizenship.
[2]
The respondent
contends that Mr. Stanizai has not received a necessary immigration
clearance and that he is currently the subject of cessation proceedings before
the Refugee Protection Division of the Immigration and Refugee Board, with the
result that he is not currently entitled to Canadian citizenship.
[3]
For the reasons that
follow, I am satisfied that Mr. Stanizai meets all of the statutory
requirements for citizenship, that his application for citizenship has been
approved by a citizenship judge and that no new information came to the
attention of Canadian immigration authorities after the citizenship judge made
his decision that would justify this Court exercising its discretion to deny mandamus
in this case. Consequently an order of mandamus will issue.
Background
[4]
Mr. Stanizai is
a citizen of Afghanistan who came to Canada in 1995. He was granted Convention
refugee status in 1996, based upon the risk that he faced in Afghanistan as a
result of the perception by the Taliban that he was a communist sympathizer. Mr. Stanizai
was landed as a permanent resident in 2001.
[5]
In July of 2007, Mr. Stanizai
applied for Canadian citizenship. The relevant period for the calculation of
residence was thus from July 13, 2003 to July 13, 2007. Mr. Stanizai’s
application for citizenship declared 264 days of absence during this period.
This included a lengthy trip to Afghanistan in 2005-2006, some four years after
the fall of the Taliban.
[6]
While he was in Afghanistan, Mr. Stanizai was married, and his first son was born in July 2006. A
second son was born a few years later. Mr. Stanizai also maintained a home
and business in Afghanistan. Citizenship and Immigration Canada (CIC) was aware
of all of this from at least October of 2009.
[7]
Before referring Mr. Stanizai’s
application to a citizenship judge, in February of 2008, CIC requested a status
update from Canada Border Services Agency (CBSA) with respect to his file. When
no response was received from CBSA, follow-up requests were sent in September
and November of that year. In particular, CIC wanted to know whether there were
any outstanding concerns or investigations with respect to Mr. Stanizai.
[8]
An internal CBSA
email written by a CBSA official on November 25, 2008 states, in part, that:
More concerning … [is] the fact that he’s a [Convention Refugee] who
apparently has no trouble traveling to and doing business in his country of
persecution. (Man that annoys me.) Not sure if CIC/CBSA has any recourse and/or
would want to take actions on that… Just thought I’d get your feedback before
telling CIC that CBSA does not have any interest with this subject at this
time.
[9]
Some 17 months later,
CBSA finally informed CIC that it had “not established any inadmissibility”
with respect to Mr. Stanizai, and that CBSA’s involvement in the case had
therefore ended. On July 29, 2009, a CIC representative noted in the GCMS
system that “As per email from CBSA, there is no further investigation pending.
Citizenship application is to proceed.”
[10]
Mr. Stanizai
took and passed his citizenship exam on November 10, 2009. In a Residence
Questionnaire completed on December 8, 2009, he indicated that he was on
vacation in Afghanistan and the U.K. for 83 days, from December 26, 2005 until
March 19, 2006, and that he was on vacation for 31 days in Kabul, from November
1, 2006 to December, 2006.
[11]
On February 11, 2011,
Mr. Stanizai’s citizenship file was sent to a citizenship judge for
review. Section 14 of the Citizenship Act, R.S.C., 1985, c. C-29,
provides that an application for citizenship shall be considered by a citizenship judge, and the
citizenship judge “shall, within sixty days of the day the application was
referred to the judge” determine whether or not the applicant meets the
requirements of the Act and the regulations. That did not happen in this case.
[12]
Mr. Stanizai
finally attended before a citizenship judge on May 3, 2011 - some 446 days
after his application had been referred to the judge for consideration. The citizenship judge then asked Mr. Stanizai
to provide additional supporting documentation, including a copy of all of the
pages of his passport and his travel documents, for the period from July 2003
to July 13, 2007. This information was provided to the citizenship judge by Mr. Stanizai
in May and June of 2011.
[13]
An updated Residence
Questionnaire was also provided to the citizenship judge which indicated that Mr. Stanizai
had been absent from Canada for a total of 944 days since arriving in Canada, a
number which the respondent submits, “was clearly wrong.” The respondent also
underlined that the dates of his absences indicated in this questionnaire did
not correspond with those in his original citizenship application form or his
original Residence Questionnaire. The respondent contends that Mr. Stanizai
deliberately withheld information regarding his absences from Canada from citizenship officials.
[14]
The citizenship judge
approved Mr. Stanizai’s application for citizenship on February 21, 2012 -
some 740 days after the application
had first been referred to the judge for consideration. The Minister was
notified of the judge’s decision. In accordance with subsection 14(5) of the Citizenship Act, the
Minister had 60 days from this date in which to file an appeal from the
citizenship judge’s decision. No appeal was filed in this case.
[15]
Throughout the
lengthy application process, Mr. Stanizai had been required to obtain
multiple immigration, security and RCMP clearances. According to CIC policy,
immigration and RCMP clearances are valid for one year and security clearances
are valid for two years.
[16]
The respondent
contends that Mr. Stanizai’s immigration and criminal clearances were not
valid when the citizenship judge approved his application for citizenship on
February 21, 2012, his most recent immigration and criminal clearances having
expired a few days before the citizenship judge made his decision.
[17]
On March 1, 2012, CIC
officials once again asked Mr. Stanizai for his fingerprints in order to
re-do his criminal record check with the RCMP. However, there is no suggestion
that CIC made any attempt to obtain a fresh immigration clearance for Mr. Stanizai
at this time.
[18]
On May 22, 2012, a
CIC official noted in the GCMS system “Fwd file to officer to update FOSS.
Client is approved and once cleared, to be granted in GCMS then to ceremony”.
Once again, there is no suggestion that CIC made any attempt to obtain a fresh
immigration clearance for Mr. Stanizai.
[19]
In July of 2012, a
CBSA email flagged Mr. Stanizai’s file for a possible cessation proceeding
based upon his ongoing ties with Afghanistan. On January 10, 2013, Mr. Stanizai
was interviewed by CBSA in connection with a cessation investigation. On
February 21, 2013, CBSA advised CIC that Mr. Stanizai should not be
granted citizenship as a cessation investigation was underway.
[20]
In the meantime, Mr. Stanizai’s
wife and children had been granted permanent resident status in December 2012,
based upon his sponsorship. Mr. Stanizai traveled to the United Arab Emirates in February of 2013 to meet up with his wife and children and bring them to Canada. However, in the spring of 2013, after being informed of the investigations into Mr. Stanizai’s
refugee status, the Canadian embassy in Dubai cancelled the families’ permanent
resident visas and revoked their permanent resident status. Mr. Stanizai’s
family has since returned to Afghanistan.
[21]
On April 19, 2013,
CBSA filed an application with the Refugee Protection Division of the
Immigration and Refugee Board for the cessation of Mr. Stanizai’s
Convention refugee status. No explanation has been provided as to why CBSA
waited at least four years to commence these proceedings, nor has the
respondent been able to identify any new information regarding Mr. Stanizai’s
ties to Afghanistan that came into the CBSA’s possession after July of 2009.
[22]
The cessation
proceedings were postponed at the request of Mr. Stanizai pending the
outcome of this application for judicial review. Under recent amendments to the
Immigration and Refugee Protection Act, S.C. 2001, c. 27, if the Refugee
Protection Division were to find that Mr. Stanizai had ceased to be a
Convention refugee or a protected person, he would become inadmissible to Canada, he would lose his permanent resident status and a departure order could be made
against him.
[23]
On July 10, 2013, Mr. Stanizai’s
counsel’s office contacted CIC to determine the reason for the delay in
processing Mr. Stanizai’s citizenship application. The CIC official
advised that the delay was attributable to Mr. Stanizai’s outstanding
criminal clearance, assuring Mr. Stanizai’s representative that there were
no other barriers to Mr. Stanizai obtaining citizenship. I understand that
a criminal clearance has since been obtained for him.
[24]
However, it turns out
that CIC had in fact suspended the processing of Mr. Stanizai’s
citizenship application while the cessation proceedings are ongoing. It takes
the position that no decision to grant citizenship has been made in this case.
According to CIC, the normal course of action is for a citizenship judge to approve
a citizenship application, following which a CIC officer makes the actual
decision to grant status, only after conducting the requisite database
searches.
[25]
Given that the
Minister’s right to appeal the citizenship judge’s decision expired on
July 22, 2012, Mr. Stanizai argues that there is no statutory
authority for the CIC to put his citizenship application “on pause” until the
cessation proceedings have been concluded. Because he has met all of the
statutory conditions for citizenship and is not subject to any of the statutory
bars, Mr. Stanizai submits that the Minister is under a mandatory
statutory duty to grant him citizenship, since subsection 5(1) of the Citizenship
Act provides that the Minister “shall” grant citizenship to an applicant if
the statutory conditions are met.
[26]
The respondent
contends that until the Refugee Protection Division determines the cessation
application, Mr. Stanizai will not have a valid immigration clearance and
the Minister cannot finalize his citizenship application. The respondent
attributes the delays in the processing of Mr. Stanizai’s application for
citizenship to Mr. Stanizai’s request to delay the cessation proceedings,
insisting that once the issue of cessation is resolved, “CIC can and will
finalize the Applicant’s citizenship application.”
Analysis
[27]
I do not understand
there to be any disagreement between the parties as to the appropriate test for
mandamus. As the Federal Court of Appeal noted in Apotex Inc. v.
Canada, [1994] 1 F.C. 742, [1993] F.C.J. No. 1098, the following criteria
must be satisfied before this Court will order a writ of mandamus:
(a) there must be a public legal duty to act;
(b) the duty must be owed to the applicant;
(c) there must be a clear right to
performance of that duty: in particular:
i) The applicant must have satisfied all
conditions precedent giving rise to the duty; and
ii) There was a prior demand for performance
of the duty, a reasonable time to comply with the demand, and a subsequent
refusal which can be either expressed or implied, e.g. unreasonable delay;
(d) no other adequate remedy is available to
the applicant;
(e) the order sought must have some practical
effect;
(f) there is no equitable bar to the relief
sought; and,
(g) on a balance of convenience, an order of mandamus
should issue.
[28]
The respondent
submits that it has not refused or neglected to carry out its statutory duties.
According to the respondent, there is currently no duty on the CIC to act as
there is no valid immigration clearance for Mr. Stanizai and one cannot be
obtained until after the completion of the cessation proceedings, assuming that
Mr. Stanizai is successful in those proceedings. The respondent says that
what Mr. Stanizai really wants is to get his Canadian citizenship in order
to insulate himself from the consequences of his own misrepresentations.
[29]
The question at the
heart of this application is whether CIC has the authority to hold off on
granting citizenship to an applicant whose application for citizenship has been
approved by a citizenship judge, pending the receipt of an immigration
clearance.
[30]
Mr. Stanizai’s
application for citizenship was approved by the citizenship judge on February
21, 2012. Subsection 14(2) of the Citizenship Act provides that
“forthwith” after approving an application for citizenship, the citizenship
judge shall “notify the Minister accordingly and provide the Minister with the
reasons therefore”.
[31]
The
jurisprudence of this Court is clear: “unless there is an appeal, the approval
or refusal by a citizenship judge, is a final matter as to the applicant’s
Canadian citizenship. The Minister has no further function to perform or other
remedy other than an appeal”: Canada (Minister of Citizenship and
Immigration) v. Mahmoud, 2009 FC 57, 339 F.T.R. 273, at para. 6. See also Canada (Minister of Citizenship and Immigration) v. Abou-Zahra, 2010 FC 1073, [2010]
F.C.J. No. 1326; Canada (Minister of Citizenship and Immigration) v.
Farooq, 2009 FC 1080, 84 Imm. L.R. (3d) 64; Canada (Minister of
Citizenship and Immigration) v. Jeizan, 2010 FC 323, 386
F.T.R. 1; Canada (Minister of Citizenship and Immigration) v.
Wong, 2009 FC 1085, 84 Imm. L.R. (3d) 89; Canada (Minister of Citizenship and Immigration) v. Wang, 2009 FC 1290, 360 F.T.R. 1.
[32]
There is a limited
exception to this principle. The Federal Court of Appeal held in Khalil v.
Canada (Secretary of State), [1999] 4 FC 661, [1999] F.C.J. No. 1093, that
the Minister retains a residual discretion to withhold citizenship from a
person who meets the requirements of citizenship if he discovers
misrepresentations after the citizenship judge has submitted his report (see
also Canada (Minister of Citizenship and Immigration) v. El Bousserghini,
2012 FC 88, 408 F.T.R. 9, at para. 27).
[33]
It is, however,
important to have regard to the facts of Khalil in order to understand
the limited scope of that discretion.
[34]
The provisions of the
Citizenship Act in effect when Khalil was decided required that
in order to be eligible for Canadian citizenship, an applicant must have been
lawfully admitted to Canada. This was thus a condition precedent to
citizenship.
[35]
The Court explained
in Khalil that while the Minister cannot arbitrarily withhold
citizenship from someone who has qualified for it, “[w]here the Minister has
information that the requirements of the Act have not been met, however, she
may delay the conferral of citizenship until it is determined that all the
conditions precedent have been met”: Khalil, at para. 14.
[36]
What was, however,
central to the decision in Khalil was that at the time that Ms. Khalil’s
application for citizenship was approved by the citizenship judge, the judge
was unaware of serious misrepresentations that had been made in Ms. Khalil’s
application for permanent residence regarding her husband’s involvement in
terrorist acts. In addition, an inadmissibility report had been filed with
respect to Ms. Khalil under the provisions of the Immigration Act in
effect at the time.
[37]
It was in these
circumstances that the Federal Court of Appeal held that “[w]hile 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”: at para. 14, my emphasis.
[38]
That is not the case
here.
[39]
Both CIC and CBSA
were fully aware of Mr. Stanizai’s ongoing personal and business ties to Afghanistan by 2009, at the very latest. Indeed, when invited to do so, counsel could not
identify any new information in this regard that had come to the
attention of citizenship or immigration authorities after 2009.
[40]
The citizenship judge
was, moreover, fully aware of all of the conflicting information that had been
provided by Mr. Stanizai with respect to his absences from Canada. The citizenship judge interviewed Mr. Stanizai and was ultimately satisfied
that he met the requirements of the Citizenship Act. Indeed, that was
the role of the citizenship judge.
[41]
Once again, the
respondent has been unable to point to any new information regarding the
frequency and duration of Mr. Stanizai’s absences from Canada during the relevant period that was not before the citizenship judge when he made his decision
to approve Mr. Stanizai’s application for citizenship.
[42]
As a consequence, the
facts of this case are fundamentally different than those that confronted the
Federal Court of Appeal in Khalil, and the limited Ministerial
discretion identified in that case does not arise here.
[43]
The respondent also
attempts to justify the delays in processing Mr. Stanizai’s application
for citizenship by stating that the irregularities in Mr. Stanizai’s
reporting of his absences from Canada were “not properly considered by the
citizenship judge” and “slipped by the judge”.
[44]
If the respondent was
not satisfied with the citizenship judge’s assessment of whether Mr. Stanizai
met the residency requirements of the Citizenship Act, the proper course
of action was for the respondent to appeal the judge’s decision. Although there
is no evidence before me to explain the Minister’s failure to do so, counsel
for the respondent says that Mr. Stanizai’s case simply “slipped through
the cracks”. Be that as it may, an error within the offices of the respondent
does not have the effect of overriding the statutory requirements of the Citizenship
Act and conferring a discretion on the Minister to withhold citizenship
that he would not otherwise have.
[45]
The respondent also
takes issue with the fact that the citizenship judge approved Mr. Stanizai’s
application for citizenship even though he did not have a current immigration
clearance. Once again, if the respondent was of the view that the citizenship
judge’s decision was defective in this regard, the proper course of action was
for the respondent to appeal that decision within the 60 day appeal period
provided for in the Act.
[46]
I would also note
that there is an element of circularity to the respondent’s argument. The
respondent says that there was no duty to confer Canadian citizenship on Mr. Stanizai
because an immigration clearance had not been obtained. However, an immigration
clearance had not been obtained because the respondent did not seek one.
[47]
An immigration
clearance essentially requires a computer search - something that ordinarily
takes a matter of minutes: see Martin-Ivie v. Canada (Attorney General),
2013 FC 772, [2013] F.C.J. No. 827, at para. 32. There is no suggestion that
any attempt was made to obtain an immigration clearance for Mr. Stanizai
in the weeks and months after the citizenship judge approved his application
for citizenship and no explanation has been offered for CIC’s failure to do so.
Nor is there any suggestion that such a search would have revealed any
statutory impediment to Mr. Stanizai being granted citizenship during the
14 months prior to the commencement of the cessation proceedings in April of
2013.
[48]
There is no statutory
authority for the obtaining of immigration clearances prior to granting
citizenship; such clearances appear to be creatures of departmental policy.
Section 14 of the Citizenship Act provides that a citizenship judge “shall … determine whether or not
the applicant meets the requirements of the Act and the regulations”. While the
Act is clear that citizenship may not be granted to an individual who is the
subject of an admissibility hearing or a removal order, neither limitation
applies in this case. The respondent has, moreover, not identified any provision of either the Act or the regulations that
would require the obtaining of a current immigration clearance prior to the
granting of citizenship.
[49]
In addition,
subsection 5(1) of the Citizenship Act provides that “[t]he Minister shall grant citizenship” to any
person who meets a series of statutory conditions. A current immigration
clearance is not one of those conditions.
[50]
The respondent also
argues that Mr. Stanizai would be unable to take the citizenship oath or
receive a citizenship certificate until he receives his immigration clearance.
The form of the oath of citizenship is a set out in a schedule to the Citizenship Act. It provides as follows: “I swear (or affirm) that I will be faithful
and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of
Canada, Her Heirs and Successors, and that I will faithfully observe the laws
of Canada and fulfil my duties as a Canadian citizen”. There is nothing in the
oath that relates to an applicant having a current immigration clearance.
[51]
It became apparent in
oral argument that what the respondent was actually referring to is a document
that must be completed prior to the oath being administered. Mr. Stanizai’s
counsel objected to this argument, submitting that she was not prepared to
address it as it was not raised in the respondent’s memorandum of fact and law
and the document in question is not in the record. I agree that in these
circumstances it would be unfair to Mr. Stanizai to consider this argument
and I decline to do so.
[52]
Finally, the
respondent relies on the decision of this Court in Platonov v. Canada
(Minister of Citizenship and Immigration), 2005 FC 569, [2005] F.C.J. No.
695 as authority for the proposition that the Minister “has a duty to check out
applicants” and “it would be intolerable” if people could obtain Canadian citizenship
simply because that screening process took too long: see para. 31.
[53]
At issue in Platonov
was section 17 of the Citizenship Act, which provides
that where the Minister is of the view that “there is insufficient information”
in order to ascertain if an applicant meets the requirements of the Act and the
regulations, “the Minister may suspend the processing of the application for
the period, not to exceed six months immediately following the day on which the processing is suspended,
required by the Minister to obtain the necessary information”. The period of suspension at issue in Platonov
had exceeded the six month period contemplated by section 17 of the Act.
[54]
However, Platonov
dealt with a delay in forwarding the file to the citizenship judge for
approval, which is not the case here. I note that it is not clear that section
17 has any application once an applicant’s file has been approved for
citizenship by a citizenship judge. I do not need to decide this question,
however, as the respondent has not relied upon section 17 to justify the
inaction in this case.
[55]
In any event, it
bears repeating that some three and a half years elapsed between the date that Mr. Stanizai
applied for citizenship and the date that file was referred to a citizenship
judge for review. In my view, this should have been more than sufficient time
to “check out” Mr. Stanizai, particularly in light of the fact that the
delays in this case do not appear to have been attributable to a need to wait
for responses from third parties such as foreign agencies.
[56]
Moreover, Mr. Stanizai’s
application for citizenship was before the citizenship judge for some 740 days
before it was approved on February 21, 2012, and an additional two years have
elapsed since then.
[57]
More fundamentally,
unlike the situation that confronted the Court in Platonov, the
respondent in this case was admittedly aware of all of the information that it
now says gives rise to concerns regarding the ongoing validity of Mr. Stanizai’s
refugee status from at least 2009.
[58]
The facts of this
case are similar to those in Murad v. Canada (Minister of Citizenship and Immigration), 2013 FC 1089, [2013] F.C.J.
No. 1182. In Murad, the applicant’s application for citizenship had been
approved by a citizenship judge in March of 2011. No appeal was taken from that
decision by the Minister, but citizenship was not granted to the applicant for
some 14 months because CIC was continuing to investigate suspicions regarding
the applicant’s presence in Canada.
[59]
Two months after the
applicant brought an application for mandamus, a CIC official reviewed
his file and decided that despite the citizenship judge’s recommendation, a
report of inadmissibility under subsection 44(1) of IRPA should be
issued. The applicant was thus facing the potential loss of his permanent
resident status and, ultimately, his removal from Canada.
[60]
The Court in Murad
carried out a careful analysis of the statutory scheme, and I adopt that
analysis as my own. The Court further found that CIC was not entitled to
withhold the conferral of citizenship to the applicant in Murad, and
that CIC had provided no explanation for its lack of diligence on the file. As
a consequence, the Court exercised its discretion to grant mandamus.
[61]
In light of the
substantial delays that had already occurred, the Court was further satisfied
that an order should be made in the nature of a directed verdict. Consequently,
the Court ordered that the respondent grant citizenship to the applicant within
a period of thirty days of the Court’s judgment.
[62]
In this case,
although counsel alluded to a lack of clean hands on the part of Mr. Stanizai
in response to a question from the Court, the respondent did not argue that
there was an equitable bar to mandamus in its memorandum of fact and
law. Nor has the respondent argued that any of the remaining conditions for mandamus
have not been satisfied here.
[63]
As a consequence, I
am satisfied that mandamus should issue. In the unusual circumstances of
this case, and given the inordinate and unexplained delays in this matter, I
am, moreover, satisfied that an order like that made in Murad would be
appropriate. Consequently, this Court will order that the respondent grant
citizenship to Mr. Stanizai within thirty days of the Court’s judgment in
this matter.
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