Docket: T-1871-13
Citation:
2014 FC 966
Ottawa, Ontario, October 10, 2014
PRESENT: The
Honourable Madam Justice Gagné
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BETWEEN:
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ODILON MAGALONG
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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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JUDGMENT AND REASONS
[1]
Mr. Odilon
Magalong seeks equitable relief in the nature of a writ
of mandamus under subsection 18(1)(3)(a) of the Federal Courts
Act, RSC, 1985, c F-7 [Act], ordering the Minister of Citizenship and
Immigration [Minister] to allow the applicant to swear his citizenship oath,
notwithstanding his ineligibility resulting from his conviction for certain
indictable criminal offences pursuant to section 22 of the Citizenship Act,
RSC, 1985, c C-29 [Citizenship Act]. In the alternative, he seeks an
order quashing or staying the removal and admissibility proceedings at the
Immigration Division of the Immigration and Refugee Board [ID] until such time
the applicant has completed his probation and is again entitled to swear the
oath of citizenship.
[2]
An exceptional factual situation lies before us.
After his application for Canadian citizenship was approved by a Citizenship Judge
and granted by the Minister, but before he swore his oath, the applicant was
arrested but not yet charged under certain provisions of the Criminal Code,
RSC 1985, c C-46 [Criminal Code]. Citizenship and Immigration Canada [CIC] put
a “hold” on his approved citizenship application. Criminal charges were then
laid five months later. CIC never informed the applicant that his application
had been approved and granted or that it had been put on “hold.” Had he been
made aware of these facts at the time, so the applicant argues, he could have
sought relief from this Court to expedite his grant of citizenship. Instead, he
now faces inadmissibility and removal proceedings at the ID.
[3]
For the reasons discussed below and although
some remedy is offered to the applicant, no equitable relief in the nature of a
writ of mandamus will be granted.
Background
[4]
The applicant is a citizen of the Philippines
and a permanent resident of Canada who made an application for citizenship in
December 2008. His wife and three children are Canadian citizens.
[5]
On November 25, 2009, he wrote the citizenship
test which he passed.
[6]
On December 23, 2009, a Citizenship Judge
approved the applicant’s application.
[7]
During the processing of his citizenship
application, the applicant committed various sexual offences against three
underage complainants. The allegations came to the attention of the complainants’
parents and, on December 19, 2009, the applicant was confronted by these
parents on complainant’s allegations (R v Magalong, 2013 BCCA 478 at
para 11 [Magalong]).
[8]
On or about January 2, 2010, theses incidents
were reported by the applicant’s pastor to the Royal Canadian Mounted Police
[RCMP] (Magalong at para 12). The applicant was arrested that same day.
He was subsequently released on bail.
[9]
On January 4, 2010, supervisors at CIC were
advised by email from Canada Border Services Agency [CBSA] that the RCMP had
arrested and fingerprinted the applicant for sexual interference.
[10]
On January 5, 2010, a CIC supervisor indicated
that CIC will place the applicant’s file on hold pending further information
from the RCMP relating to the swearing of charges. CIC was fully aware at the
time of the hold that no charges had been sworn. CIC noted to follow-up on the
applicant’s file in 60 days.
[11]
That same day, the applicant’s citizenship was
granted by a citizenship officier pursuant to subsection 5(1) of the Citizenship
Act.
[12]
The applicant was never informed by CIC that his
citizenship application had been approved by a Citizenship Judge or granted by
an officier. The applicant was also never informed by CIC that his citizenship
had been unilaterally suspended or put on hold. He only became aware of these
facts following the results of an access to information by counsel.
[13]
Charges against the applicant were not laid
until June 8, 2010, more than five months later.
[14]
On September 10 and 29, November 19, and
December 10, 2010, CIC sent letters to the applicant requesting information,
fingerprints and documentation relating to his criminal charges in order to
evaluate whether he could take the oath of citizenship. The applicant failed to
respond.
[15]
On July 7, 2011, CIC received the applicant’s
fingerprints from the RCMP.
[16]
On May 5, 2012, the applicant was convicted of
certain indictable offences. On October 18, 2012, he was sentenced to 22
months’ imprisonment (concurrent) on each charge, to be followed by three years
of probation. His appeal of his conviction was dismissed by the British
Columbia Court of Appeal.
[17]
Following the applicant’s conviction, the
Minister referred the applicant under subsection 44(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], for inadmissibility and
removal proceedings at the ID. The report was based on the applicant’s serious
criminality, pursuant to paragraph 36(1)(a) of IRPA. Following
submissions by counsel regarding the applicant’s prior grant of citizenship,
the member of the ID agreed to stay the removal proceedings pending the outcome
of this application.
[18]
On November 20, 2013, CIC advised the applicant
that his application had been closed and that he was prohibited from taking the
oath of citizenship under section 22 of the Citizenship Act, as he had
been convicted of an indictable offence.
[19]
On January 7, 2014, the applicant was released
from custody on probation and rejoined his wife, daughter and son after having
served his time. He currently works the night shift for his family’s cleaning
company.
Issues and Standard of Review
[20]
The issue raised by this application is whether the
applicant satisfied all of the elements of the test for the issuance of an
order of mandamus.
Submissions of the parties
[21]
The writ of mandamus is a discretionary
equitable remedy. It “lies to compel the performance of a
public legal duty which a public authority refuses or neglects to perform
although duly called upon to do so” (Dragan v Canada (Minister of
Citizenship and Immigration), 2003 FCT 211, [2003] 4 FC 189 at para 38).
[22]
The parties agree that the following criteria
must be satisfied, as set forth in Apotex Inc v Canada (Attorney General),
[1994] 1 FC 742, aff’d [1994] 3 S.C.R. 1100 at para 45, before the Court can issue
a writ of mandamus:
1.
there must be a public duty to act under the
circumstances;
2.
the duty must be owed to the applicant;
3.
there must be a clear right to 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 must have some practical
effect;
6.
in the exercise of its discretion, the Court
must find no equitable bar to the relief sought; and,
7.
on a balance of convenience, an order of mandamus
should issue.
[23]
The applicant argues that the test for mandamus
is satisfied in the case at bar. The respondent has a clear legal duty owed to
the applicant. Once an application for citizenship has been approved, the
Minister has no further discretion to suspend, “hold” or delay notifying the
applicant of his right to swear the oath in order to effectuate his
citizenship. As such, the Minister acted ultra vires the scope of his authority
and in so doing, denied the applicant’s right to citizenship.
[24]
The language of the Citizenship Act is
mandatory, not permissive. Subsection 5(1) states: The “Minister
shall grant citizenship to any person” who meets the conditions.
Section 12(2) further provides: “When an application
under section 5 or 5.1 or subsection 11(1) is approved, the Minister shall
issue a certificate of citizenship to the applicant.” Moreover, subsection
22(1) of the Citizenship Regulations, SOR/93-246 requires that the “Registrar shall make all necessary arrangements for the
purpose of administering the oath.”
[25]
The irrevocable nature of the grant of
citizenship is confirmed by the jurisprudence of this Court. In Stanizai v Canada (Minister of Citizenship and Immigration), 2014 FC 74 [Stanizai], Justice Mactavish held:
[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 (CanLII), 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 (CanLII), 2010
FC 1073, [2010] F.C.J. No. 1326; Canada (Minister of Citizenship and
Immigration) v. Farooq, 2009 FC 1080 (CanLII), 2009 FC 1080, 84 Imm.
L.R. (3d) 64; Canada (Minister of Citizenship and Immigration) v.
Jeizan, 2010 FC 323
(CanLII), 2010 FC 323, 386 F.T.R. 1; Canada (Minister of
Citizenship and Immigration) v. Wong, 2009 FC 1085 (CanLII), 2009 FC
1085, 84 Imm. L.R. (3d) 89; Canada (Minister of Citizenship and
Immigration) v. Wang, 2009
FC 1290 (CanLII), 2009 FC 1290, 360 F.T.R. 1.
[26]
As such, the Minister does not have the
authority to “hold off on
granting citizenship to an applicant whose application for citizenship has been
approved by a citizenship judge” (Stanizai
at para 29).
[27]
Justice Mactavish did, however, find that there
was a “limited exception to this rule”: Citing Khalil v Canada (Secretary of
State), [1999] 4 FC 661 [Khalil], she notes, at para 32 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.”
[28]
In the case at bar then, the Minister was
entitled to perform no other function and had no other remedy than to appeal
the decision within 60 days. The Minister did not appeal. In fact, on January
5, 2010, the Minister signed off and “granted” the citizenship.
[29]
Moreover the Khalil exception does not
apply. In that case, the judge was unaware of serious misrepresentations that
had been made in the application for permanent residence regarding the
husband’s involvement in terrorist acts. In the immediate case, the applicant
has never made any misrepresentations or been accused of such.
[30]
Having satisfied all conditions precedent for
citizenship under the Act, the respondent unjustly delayed and refused to
perform his duty.
[31]
The applicant further agues that there was no
statutory bar to the applicant’s citizenship during the five months before the
charges were sworn. None of the prohibitions listed at section 22 of the Citizenship
Act apply to an investigation undertaken by the RCMP for offences other
than war crimes and crimes against humanity prior to the laying of charges. The
legislature could have chosen to prohibit those under investigation for
indictable offences, but did not.
[32]
As a matter of fundamental justice, and under
the doctrine of abuse of process, the applicant argues that he should now be
granted citizenship, as he was previously entitled to, notwithstanding the fact
he is currently on probation and prohibited from taking the oath under subparagraph
22(1)(a)(i) of the Citizenship Act.
[33]
This Court has previously held that it does not
matter what happens after a mandamus application has been filed and by
implication after the right to citizenship has been vested. The relevant time
of reference is when the applicant was fully eligible for citizenship (Murad
v Canada (Minister of Citizenship and Immigration), 2013 FC 1089 [Murad]
at para 61). The sole difference with Murad is that the applicant did
not file his mandamus application prior to the charges leading to
inadmissibility; however, he could not have done so as the Minister failed to
inform him that his application had been approved.
[34]
This argument can also be framed in the context
of an abuse of process by the Minister, as there has been an affront to fair
play and decency, and so there is harm to the public interest if this abuse of
process is permitted to continue. The abuse should not be allowed to continue
by further denying the applicant’s citizenship, or by allowing the Minister to
proceed with an application to remove the applicant from Canada. Without a mandamus
granted by this Court, the applicant will suffer irreparable harm as he will be
deported from Canada away from his family and home.
[35]
Meanwhile, the respondent argues that both Stanizai
and Murad do not apply to the case at bar. Neither applicant in
these two cases was prohibited by statute from becoming Canadian citizen.
Considering the applicant is statute-barred from swearing the oath and
ineligible to become a citizen on account of his conviction, there is no
present duty owed by the Minister to the applicant, and so this Court cannot
compel the authority to perform it (Vaziri v Canada (Minister of Citizenship
and Immigration), 2006 FC 1159 [Vaziri]).
[36]
Furthermore, the Minister is not under any
statutory duty to administer the oath to any candidate for citizenship within a
prescribed period of time, and so did not err in not immediately administering
the oath to the applicant subsequent to the granting of citizenship.
[37]
Moreover, the applicant was aware of his
criminal activities well before he was granted Canadian citizenship. He ought
to have come forward and disclosed them to the RCMP and CIC, as opposed to
waiting for his pastor to bring the applicant’s criminality to the attention of
the police. The applicant should not be able to take advantage of the time that
it took the RCMP to properly investigate the crimes that he had committed. Had
he been upfront about his criminal activities, he would never have been granted
Canadian citizenship in the first place.
[38]
The respondent also argues that this Court cannot
order for the stay or suspension of the admissibility proceedings currently
before the ID. In Fox v Canada (Minister of Citizenship and Immigration),
2009 FCA 346, the Federal Court of Appeal allowed a judicial review of an ID
decision to grant an adjournment of an admissibility hearing to avoid or
circumvent the consequences of the prohibitions under the Citizenship Act,
as it lacked jurisdiction to grant it. The ID is bound by law to hear and
determine the applicant’s matter without delay.
[39]
Finally, the respondent argues that the
applicant does not come before this Court with clean hands, and cannot benefit
from abuse of process. The applicant has no right to Canadian citizenship; he
is statutorily prohibited from becoming a citizen because he was formally charged
and convicted of indictable offences, but did not alert CIC as to this turn of
events. He should not benefit from the time it took the RCMP to lay the
charges.
Analysis
[40]
I will first deal with the applicant’s argument that
there was an abuse of process on the part of the Minister. While it is true
that the Minister new that all prerequisites for the swearing in ceremony of
the applicant as a Canadian citizen were complied with on January 5, 2013, and that
he could have been sworn in during the following 5 months, it is also true that
as the applicant was processing his application for citizenship, he was engaged
into a behaviour that he knew or should have known was criminal and that if the
ongoing investigation resulted in charges being pressed before he was granted
citizenship, he would simply not be granted citizenship and he would be found
inadmissible. Paragraphs 22(1)(b) and 22(1)(c) of the Citizenship
Act make it clear that a person is prevented from being granted citizenship
if he or she is under investigation for a crime against humanity or a
war crime but for any other indictable offences, charges have to be pressed
for the applicant to be refused citizenship. Under these circumstances, it can
not be said that the respondent acted in an abusive way.
[41]
That being said, the applicant does not point us
to a positive duty on the part of the Minister to advise him that his
application had been granted and to invite him to a swearing in ceremony within
a specific amount of time. I am unable to find one in the legislation, the
Citizenship Policy Manual 15 [CP] or the jurisprudence.
[42]
However, I agree with the applicant that the
Minister had no right to put on “hold” his granted citizenship application. The
Khalil exception does not apply, as the Minister cannot point this Court
to any misrepresentations the applicant had made in his application for
Canadian citizenship. As such, the Minister had an unequivocal duty to grant
the applicant citizenship during that time period. The applicant satisfied the conditions
precedent giving rise to the duty. Section 5 of the Act uses mandatory
language, and so creates an obligation on the part of the Minister to grant
citizenship when those conditions precedent are met:
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5. (1) The Minister
shall grant citizenship to any person who […]
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5. (1) Le ministre
attribue la citoyenneté à toute personne qui, à la fois : […]
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[43]
Section 11 of the Interpretation Act, RSC 1985, c
I-21 confirms the imperative nature of the word “shall”:
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11. The expression “shall” is to be construed as imperative and the
expression “may” as permissive.
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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.
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[44]
The issue then lies as to whether this Court can
issue a mandamus, ordering the Minister to allow the applicant to swear
his citizenship oath, despite not having a “present” duty to do so. As the
respondent correctly notes, the Minister no longer as the statutory power to grant
the applicant citizenship, as subparagraph 22(1) (a)(i) of the Citizenship
Act acts as a legal prohibition to the granting of citizenship to a person
under a probation order.
[45]
For this temporality argument, the respondent
points us to Vaziri, albeit with no paragraph cite. In that case,
Justice Snider did not need to deal with this issue, nor did she address it
directly. I suspect though that it can be inferred from the following excerpt:
[38] The equitable remedy of mandamus lies
to compel the performance of a public legal duty that a public authority
refuses or neglects to carry out when called upon to do so. […]
[46]
The applicant concedes that his conviction makes
him currently ineligible for citizenship. As a result, he asks this Court for a
directed verdict effectuating his previous grant of citizenship notwithstanding
this fact. He would not now be prohibited had he been allowed to take the oath
during the five months when he was fully eligible.
[47]
Moreover, he analogizes his situation with that
of the applicant in Murad. I cite Justice Roy on this issue:
[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. [Emphasis added]
[48]
I agree with the respondent that the case at bar
is distinguishable. In Murad, the Court could issue a mandamus ordering
the CIC to grant the applicant citizenship, as the applicant still maintained
his eligibility for citizenship. Unlike the applicant in the present case, Mr. Murad
had not been convicted of an indictable offence and been sent a notwithstanding
letter from CIC in consequence. While an inadmissibility report had been
rendered against Mr. Murad by a CIC officer pursuant to subsection 44(1) of the
IRPA, it had yet to have been confirmed by a decision of the ID. No removal
order had been issued.
[49]
Similar logic distinguishes Stanizai, as
the applicant there was not subject to any statutory bars.
[50]
Since the respondent was not under a statutory
duty to take the applicant’s oath within a specific timeframe and since he is not under a public duty to act at the present time and under
the present circumstances, the main remedy sought by the applicant will not be
granted.
[51]
The applicant alternatively asks that I stay the
removal proceedings at the ID until such time as he has completed his probation
and is again entitled to take his oath and effectuate his citizenship grant,
and that I quash the November 20, 2013 decision by CIC to close his citizenship
application.
[52]
Although I find that I have the power to quash
the November 20, 2013 decision, I do not think that I should issue an order to
stay the removal proceedings at the ID as they are already stayed by a decision
of that tribunal.
[53]
The fact that the applicant is presently barred
from taking the oath has no impact on the fact that he was, for all intent and
purposes, granted Canadian citizenship. Although I can refuse to exercise my
discretion to issue a mandamus order based on that fact alone, it will
not prevent the applicant to seek from the ID a new stay of that hearing until
he is no longer on probation, just as it will not prevent him to simply argue
that he is not inadmissible as he was granted citizenship. Decisions of the ID
on both these issues could be reviewed by this Court at the request of the loosing
party.
[54]
In addition, I find that it would not be wise on
my part to order the respondent to administer oath to the applicant at the end
of his probation period, as this would be to assume that the applicant’s
situation will not change meanwhile.
Conclusion
[55]
For the reasons provided herein, this
application for judicial review will be granted, solely for the purpose of
quashing the November 20, 2013 decision by CIC to close
the applicant’s citizenship application. Considering the mitigated outcome of
this application, no costs will be granted.
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