Docket: T-1077-15
Citation:
2016 FC 505
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, May 19, 2016
PRESENT: The Honourable Madam Justice St. Louis
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BETWEEN:
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TAWFIK ASSAL
NICOLE CHALABY
(ON BEHALF OF LUCA TAWFIK SHAKER TAWFIK ASSAL)
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Applicants
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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
I.
Introduction
[1]
The parties agreed to group the six (6) dockets
so they could be heard together, given that they present the same facts and
raise the same questions. Thus, the Court will deliver a judgment in the docket
T-1077-15 and will file a copy in the dockets T-1078-15, T‑1079‑15,
T-1080-15, T-1081-15 and T-1082-15.
[2]
Each docket pertains to a child, and three
families are represented. Thus, Luca Tawfik Shaker Tawfik Assal is represented
by Nicole Chalaby and Tawfik Assal; Sophie Paul George Antoun Sabbagh, Alain
Paul George Sabbagh and Thomas Paul Georges Sabbagh are represented by Diane
Labrie and Paul Sabbagh; Luca Andrew Maroun Aziz and Isabella Aziz are
represented by Giuseppina Deponte and Andrew Aziz.
[3]
The facts underlying the decision under appeal
are allowed. Thus, between 1996 and 2007, the applicants, who are Canadian
citizens, travelled to Egypt where they took in children who were not their
own, obtained fraudulent birth certificates that falsely identified them as the
biological parents of these children and presented these fraudulent birth
certificates to Canadian authorities to obtain a citizenship certificate and a
Canadian passport for each child.
[4]
Canadian authorities therefore issued a
certificate of citizenship for each of the children under paragraph 3(1)(b)
of the Citizenship Act, R.S.C. 1985, v C-29 (the Act), presented in the
appendix, which states that a person born outside Canada after February 14, 1977,
of a father or a mother who is a citizen at the time of the birth, is a
citizen.
[5]
Each of the six (6) children therefore arrived
in Canada shortly after birth and has lived here since.
[6]
In 2009, the Canadian authorities discovered the
fraudulent scheme and, in April 2012, charges were laid against the applicants.
Citizenship and Immigration Canada (CIC) informed them that the proceedings
relating to the children would be concluded once the criminal proceedings were
finished.
[7]
In November 2014, the charges against Nicole
Chalaby, Giuseppina Deponte and Paul Sabbagh were dropped, while in December
2014, Tawfik Assal, Andrew Aziz and Diane Labrie pleaded guilty to one charge
of misrepresentation under section 127 of the Immigration and Refugee Protection
Act, S.C. 2001, c. 27. On February 17, 2015, the Honourable Justice
Jean-Pierre Boyer of the Court of Quebec (docket 500-73-004219-149) discharged
them absolutely.
[8]
On May 15, 2015, the Registrar of Canadian
Citizenship (Registrar) delivered her decision, which was the same for each
child, cancelling their birth certificates. The Registrar stated that the
children do not have the right to hold the certificates of citizenship issued
to them, and listed the information it considers relevant and asked that the
certificates of citizenship be sent to the address listed. The Registrar
supported her decision to cancel the children's certificates of citizenship on
the basis of subsection 26(3) of the Citizenship Regulations,
DORS/93-246 (Regulations), adopted under the authority of paragraphs 27(1)(j)
and 27(1)(k) of the Act, all of which are presented in the appendix.
[9]
The applicants requested a judicial review of
the Registrar's decision. They argued that it is inconsistent with the rule of
law because rescinding the certificates of citizenship does not constitute
proper recourse in these circumstances, and that CIC should instead have
applied the procedure for revocation under subsection 10(1) of the Act, as it
was on May 15, 2015, and presented in the appendix. They also argue that the
principles of natural justice and procedural fairness were not respected in the
process leading to the certificates of citizenship being rescinded, and that
they have the right to costs on a solicitor-client basis.
[10]
The respondent argued that the Registrar's
decision is consistent with the rule of law because subsection 26(3) of the
Regulations affords her jurisdiction to cancel certificates of citizenship
issued illegally and because the revocation procedure does not apply in this
instance. The respondent maintains that the principles of natural justice were
respected and that no special reason justifies the awarding of costs.
[11]
The Court is obviously sensitive to the
children's situation, but is bound by the legislative and regulatory framework
governing issues concerning Canadian citizenship. Thus, for the reasons stated
hereafter, this Court concludes that the Registrar's decision is consistent
with the rule of law, that the Registrar has the jurisdiction to cancel
certificates of citizenship, that the revocation procedure does not apply in
this case, that the principles of natural justice and procedural fairness were
respected and that the facts do not justify the awarding of costs. Thus, the
Registrar's decision is upheld and the application for judicial review is
dismissed.
[12]
The applicants are neither the biological
parents, nor the adoptive parents of the children they are representing.
However, for the purposes of this judgment, this Court will nonetheless
identify them as the parents and will identify the children as their
children.
II.
Additional relevant facts
[13]
The applicants relied on the statement of facts
cited in the above judgment from Boyer J.C.Q. Thus, it is understood that the
children were born outside of Canada to parents who were not Canadian citizens
at the time of their birth, and that they are not Canadian citizens. It is not
necessary to provide more details regarding this.
[14]
However, the applicants alleged that the
principles of natural justice and procedural fairness were not respected in the
process leading to the Registrar's decision to cancel the children's
certificates of citizenship. Thus, it becomes necessary to provide further
detail about the exchanges that occurred between the applicants and CIC in
order to assess this allegation.
[15]
Yet the majority of these exchanges, letters and
emails are not in the Certified Tribunal Record (CTR). They were submitted by
the applicants with the affidavit from Sara Goessaert. The applicants requested
that the Court consider these documents, particularly the demand letter
addressed to the CIC Director General on April 17, 2015.
[16]
The Court must regularly limit its review to CTR
documents (Ajeigbe v Canada (Minister of Citizenship and Immigration),
2015 FC 534 at paragraph 13). However, in this case, the applicants submitted
documents with their docket that are not part of the CTR and requested that the
Court consider them. The respondent consented to this, and the review of these
documents is necessary to assess whether there was a breach of the principles
of natural justice and procedural fairness (Assoc. des universités et
collèges du Canada v Canadian Copyright Licensing Agency, 2012 FCA 22).
Therefore, this Court agrees to consider the documents submitted by the
applicants, despite the fact that they are not in the CTR.
[17]
Thus, for the purposes of this docket, the
exchanges between CIC and the applicants began on July 7, 2014. The case
management analyst informed the applicants that CIC had determined that the
children would not be expelled from Canada following the legal proceedings and
would "recall" their certificates of citizenship. The analyst
indicated that it was CIC's intention to issue temporary resident permits
lasting three (3) years, a period during which they could apply for permanent
residency on humanitarian and compassionate grounds, and then citizenship.
[18]
On August 18, 2014, the applicants, through
their solicitor, sent a letter to the CIC Director General in which they
recognized the CIC's intention to rescind the children's certificates of
citizenship and requested a point of contact with whom they could communicate
at each step of the process to uphold their best interests. This letter went
unanswered, so the applicants sent a reminder on September 11, 2014.
[19]
On September 25, 2014, CIC informed the
applicants that it had not received anything, and the latter therefore resent
their letter from August 18.
[20]
On October 1, 2014, CIC sent an email to the
solicitor for the applicants, acknowledging receipt of the letters and noting
that the certificates of citizenship would be rescinded once the criminal case
had finished before the courts. CIC then outlined the two steps in the process
of recalling certificates of citizenship, namely (1) sending a letter of
procedural fairness and the granting of a period of 30 days to respond and (2),
once the submissions are received, sending the file to the Registrar who will
render a decision to recall, or not to recall, the certificates of citizenship.
[21]
On October 14, 2014, the applicants acknowledged
receipt of the email from CIC and, specifically, reiterated their request to
designate a point of contact with whom they would be able to communicate during
each step.
[22]
On December 17, 2014, the applicants informed
CIC of the withdrawal of the charges filed against Nicole Chalaby, Giuseppina
Deponte and Paul Sabbagh and reiterated their request to designate a point of
contact. The word revocation appears for the first time, but the
applicants referred then both to the [translation]
"recall of the certificates" and to
the [translation]"case of the children's citizenship recall"
to describe the procedure chosen by CIC.
[23]
On February 17, 2015, Boyer J.C.Q. delivered his
decision, ending the criminal proceedings against the applicants.
[24]
On April 17, 2015, having received no updates
from CIC despite the end of criminal proceedings, the applicants sent a demand
letter to the CIC Director General. They stressed that the legal proceedings
against the applicants came to an end on February 17, 2015, and they restated
their wish for a prompt recall of the certificates of citizenship, which would
allow them to submit their humanitarian reasons to the Governor in Council as
part of the citizenship revocation procedure provided for in subsection
10(1) of the Act. They insisted on the urgent need for action because a
legislative change affecting subsection 10(1) of the aforementioned Act was to
come into force shortly and eliminate the possibility of submitting
humanitarian reasons to the Governor in Council in the context of a revocation
of citizenship for fraud. The applicants then listed numerous difficulties that
the children will face in the event that their citizenship status is recalled
as well as the impact of this loss on each of them; they requested that CIC not
proceed with the recall of the certificates of citizenship, but
revalidate them instead.
[25]
On June 19, 2014, the Strengthening Canadian
Citizenship Act, SC 2014, c. 22, modified subsection 10(1) of the Act by
eliminating the intervention of the Governor in Council in the citizenship
revocation procedure, and instead granted the exercise of this power to the
Minister of Citizenship and Immigration (the Minister). However, this
modification came into effect on May 28, 2015, after the Registrar had rendered
her decision.
[26]
On April 22, 2015, CIC acknowledged receipt of
the applicants' demand letter and noted that the next step would be the recall
of the children's certificates of citizenship, as mentioned previously, and not
the revocation of the status of Canadian citizen. CIC reiterated the
steps in the recall process for certificates of citizenship, as well as the
procedure that would allow the children to qualify for legal status in Canada.
[27]
On April 27, 2015, the applicants withdrew the
letter of procedural fairness in order to accelerate the recall process
for the certificates of citizenship.
[28]
On May 5, 2015, the applicants sent their demand
letter from April17, 2015, to the Registrar and, on May 27, 2015, to the
Minister.
[29]
On May 15, 2015, the Registrar decided to cancel
the certificates of citizenship, but this decision was not then conveyed to the
applicants.
[30]
On May 28, 2015, unaware that the Registrar had
rendered her decision, the applicants submitted a request for a remedy of
mandamus to force CIC to render a decision regarding the recall process for the
children's certificates of citizenship.
[31]
On June 11, 2015, the Registrar's decision from
May 15, 2015, was brought to the attention of the applicants by counsel for the
respondent and, on June 25, 2015, the decision was forwarded to them.
[32]
Also, on August 5, 2015, the applicants
submitted citizenship applications for the children under the auspices of
subsection 5(4) of the Act, then in effect and presented in the appendix.
III.
Issues in dispute
[33]
This Court must determine the appropriate
standard of review and respond to the three questions raised by the applicants,
namely:
(1) Is the Registrar's decision consistent
with the rule of law?
(2) Were the principles of natural justice
and procedural fairness respected?
(3) Are the
applicants entitled to costs?
IV.
Status of the parties
A.
Status of the applicants
(1)
Is the Registrar's decision consistent with the
rule of law?
[34]
The applicants maintain that the Registrar could
not use subsection 26(3) of the Regulations and cancel the children's
certificates of citizenship, but that CIC should instead use the citizenship
revocation procedure set out in subsection 10(1) and in section 18 of the Act
in effect on May 15, 2015.
[35]
The applicants maintain that they were thereby
deprived of a remedy before the Governor in Council, whom they could have asked
not to revoke the children's citizenship for humanitarian reasons.
[36]
The applicants maintain that they always clearly
took the position that the revocation procedure is the only one applicable to
decide the children's citizenship because it applies to all citizens, both natural-born
and naturalized citizens when there are cases of fraud, misrepresentations or
intentional concealment of material circumstances.
[37]
The applicants based their argument on a
combined reading of subsection 10(1) of the Act and 26(3) of the Regulations in
effect on May 15, 2015, as well as on the meaning of the terms used in these
subsections.
[38]
The applicants therefore argued that (1) the
case law at subsection 26(3) of the Regulations includes administrative errors
rather than misrepresentations, (2) the common meaning of the words does not
make is possible to conclude that subsection 10(1) of the Act only applies to
naturalized citizens and not to natural-born citizens, (3) the case law at
subsection 10(1) of the Act is not restricted to naturalized citizens (Canada
(Minister of Citizenship and Immigration) v Obodzinsky, 2003 FC
1080), and (4) distinguishing between natural-born citizens and other citizens
is contrary to the provisions of section 6 of the Act, which stipulates that
all citizens enjoy the same rights.
(2)
Were the principles of natural justice and
procedural fairness respected?
[39]
The applicants argue that they always referred
to the revocation procedure, that CIC did likewise and that the change of
course was likely to take advantage of the imminent legislative change and to
deprive them of the aforementioned remedy before the Governor in Council.
[40]
The applicants argue that CIC violated the
principles of natural justice and procedural fairness by failing to consider
all of the evidence and the decision's impact on the lives of those involved,
in this case innocent children, who will face significant administrative
problems (Baker v Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817 at paragraphs 15, 22). The impacts include ineligibility for
health care, the imposition of school fees for foreign students, the loss of
international mobility, the inability to obtain a driver's license and having
the status of stateless person.
[41]
The applicants also argue that CIC should have
considered the humanitarian reasons put forward in their demand letter from
April 17, 2015, being obliged to consider the best interests of the children,
and also should have used the discretionary power under subsection 5(4) of the
Act to grant Canadian citizenship to children.
(3)
Are the applicants entitled to costs?
[42]
The applicants maintain that there are special
reasons justifying the awarding of costs and, furthermore, that the respondent's
reprehensible behaviour justifies the awarding of costs on a solicitor-client
basis. They argue that the respondent's decision-making process lacked all
transparency, that the respondent created confusion by referring to the term
recall rather than to the term cancellation, which is used in subsection 26(3)
of the Regulations, and that the respondent refused to communicate adequately
with the applicants.
B.
Status of the respondent
(1)
Is the Registrar's decision consistent with the
rule of law?
[43]
The respondent argued that the Registrar's
decision is consistent with the rule of law and that she had the jurisdiction
to cancel the children's certificates of citizenship, who had enjoyed a
privilege to which they were not entitled.
[44]
The respondent began by noting the legislative
framework. The respondent stated that paragraphs 27(1)(j) and 27(1)(k)
of the Act specify that the Governor in Council may, by law, provide for the
surrender, the retention and the cancellation of certificates of citizenship
issued under the Act and that subsection 26(3) of the Regulations results from
the exercise of this authority.
[45]
Subsection 26(3) of the Regulations states that
when the Minister has determined that the holder of a certificate of
citizenship is not entitled to it, the Registrar will cancel the aforementioned
certificate. In this case, the respondent took note of an undisputed fact, that
the children were never Canadian citizens under paragraph 3(1)(b) of the
Act, because they were not born outside Canada to a father or a mother who was
a citizen at the time of their birth.
[46]
The respondent relied mainly on the statements
from Mr. Justice Harrington in the decision Hitti v Canada (Minister
of Citizenship and Immigration), 2007 FC 294 at paragraph 16, to the effect
that "section 26 of the Citizenship Regulations,
1993, DORS/93-246, provides that the Registrar of Canadian Citizenship may
cancel an unlawfully issued certificate."
[47]
The respondent also relied on the statements
from Mr. Justice Rennie in the decision Afzal v Canada (Minister of
Citizenship and Immigration), 2014 FC 1028, according to which a
certificate, even if issued, is of no effect where the conditions precedent to
citizenship have not been met. At paragraph 25, Rennie J. also stated that
sections 10 and 18 of the Act do not apply "because
the applicants never obtained citizenship." "The requirements of the Act had not been
fulfilled," and the Registrar has the jurisdiction to cancel a
certificate of citizenship when, on an objective basis, it is obvious that the
person concerned did not have the right to the aforementioned certificate of
citizenship.
[48]
In relation to the revocation procedure provided
for in subsection 10(1) of the Act, the respondent highlighted three reasons to
dismiss the applicant's arguments and argue that the revocation does not apply
in this case.
[49]
First, because the children never had, obtained
or possessed Canadian citizenship, it cannot be taken from them. They were
never entitled to it and they cannot have revoked what they never possessed.
[50]
In the alternative, subsection 10(1) of the Act
requires that the person has obtained citizenship, which involves a
citizenship application having been submitted and citizenship having been
granted. In fact, paragraph 3(1)(c) of the Act states that a person acquires
citizenship as the result, among others, of the procedure set out in articles 5
and 11 of the Act. These steps do not apply when citizenship is the result of
being born in Canada or filiation. Thus, in this case, because there was no
claim or granting of citizenship, we are not faced with an acquisition case and
subsection 10(1) of the Act therefore does not apply.
[51]
Lastly, the respondent maintains that it would
be paradoxical and absurd for a person who fraudulently obtained a certificate
of citizenship to enjoy wider procedural rights than a person who obtained a
certificate of citizenship following an administrative error.
[52]
When a person bases their right to citizenship
on the situation at birth, under paragraphs 3(1)(a) or 3(1)(b) of
the Act, there is neither obtainment nor attribution of citizenship under
section 5 of the Act, and citizenship can only be revoked under subsection
10(1) of the Act. This conclusion applies equally when the incorrect
application of paragraphs 3(1)(a) and 3(1)(b) of the Act stems
from a fraud or a misrepresentation, and only the cancellation procedure of the
certificate of citizenship by the Registrar then applies.
[53]
Lastly, the respondent does not contest the fact
that the revocation procedure in effect on May 15, 2015, was the same as the
one that would apply if the circumstances allowed it. However, the respondent
maintains that the revocation procedure is not at play and that legislative
change is therefore irrelevant.
(2)
Were the principles of natural justice and
procedural fairness respected?
[54]
The respondent maintains that the principles of
natural justice and procedural fairness were respected. The respondent stresses
that this was a case of fraud; that in July 2014 a CIC analyst confirmed that,
taking into account the children's best interests, they would not be expelled
from Canada; that CIC adopted a proactive position to allow the children to
stay in Canada with a status and to obtain, after a certain period, Canadian
citizenship; that CIC constantly referred to the recall procedure for the
certificates of citizenship, which cannot be mistaken for the revocation
procedure, which CIC stated to the applicants was not a revocation procedure;
that one of the applicants' demand letters is even addressed to the Registrar,
who does not have jurisdiction over revocations.
(3)
Are the applicants entitled to costs?
[55]
The respondent is opposed to the awarding of
costs. The respondent argues that nothing in the applicants' correspondence
makes it possible to infer that they did not understand the nature of the
planned procedure, and that CIC never mentioned the revocation procedure and
informed the applicants that it would not apply as soon as they mentioned it.
[56]
The respondent sent numerous notifications to
the applicants to state that the recall procedure for the certificates of
citizenship was going to begin, and the applicants never indicated that they
did not understand the nature of the planned procedure.
V.
Standard of review
[57]
The issues relating to the Registrar's
jurisdiction and procedural fairness must be reviewed on the basis of the
correct decision (Dunsmuir v Nouveau-Brunswick, 2008 SCC 9 [Dunsmuir]
at paragraph 50 and (Canada (Minister of Citizenship and Immigration) v
Khosa, 2009 SCC 12 at paragraph 43)), whereas the Registrar's decision must
be based on the standard of reasonableness (Dunsmuir, at paragraph 47).
VI.
Analysis
A.
Is the Registrar's decision consistent with the
rule of law?
[58]
The parties are pitting two distinct procedures
against one other: the cancellation of a certificate of citizenship issued
unlawfully, and the revocation of citizenship obtained fraudulently.
[59]
The cancellation of a certificate of citizenship
is provided for under subsection 26(3) of the Regulations and results from the
exercise by the Governor in Council of the authority conferred upon him under
paragraphs 27(1)(j) and 27(1)(k) of the Act and under which it
may, by law, provide for the surrender, the retention and the cancellation of
certificates of citizenship issued under the Act.
[60]
Thus, subsection 26(3) of the Regulations
confers upon the Registrar the jurisdiction to cancel a certificate of
citizenship when the Minister determines that its holder is not entitled to it.
[61]
The cancellation of a certificate of citizenship
in this context does not, therefore, remove any right or status from the holder
because he or she has none. This is merely the concrete action based on the
finding that the holder of a certificate of citizenship is not a Canadian
citizen, that a certificate was nonetheless issued to the holder and that the
certificate must consequently be cancelled.
[62]
The revocation of citizenship is set out in
subsection 10(1) of the Act, a subsection found in Part II, entitled "Loss of Citizenship."
[63]
The schema of the Act, as well as the meaning of
the words "loss of citizenship" and "revocation of citizenship" require at least
as a premise that the person affected "have" citizenship because, as
the respondent argued, a person cannot lose what he does not have.
[64]
The children are not Canadian citizens and never
have been, and a procedure meant to revoke their citizenship when they do not
have it therefore does not apply to them.
[65]
This Court could end its analysis here. However,
the applicants argue that subsection 10(1) of the Act, noted above, dealing
with revocation, must be used when there is fraud, and that it applies as much
to naturalized citizens as to natural-born citizens.
[66]
Even if the Court agreed to this proposal,
revocation could not have been used in this case because the children are
neither naturalized nor natural-born citizens.
[67]
Furthermore, this Court cannot agree to the
applicants' proposal in this regard. In fact, subsection 10(1) of the Act then
in effect states that "where the Governor in
Council, on a report from the Minister, is satisfied that any person has
obtained, retained, renounced or resumed citizenship … under this Act by false
representation or fraud or by knowingly concealing material circumstances, the
person … ceases to be a citizen" [my emphasis]. The language
of the paragraph itself requires the acquisition of citizenship by fraud.
[68]
Persons who are citizens are those born in
Canada (paragraph 3(1)(a) of the Act), or born outside of Canada to a
father or a mother who is a Canadian citizen at the time of the birth
(paragraph 3(1)(b) of the Act), provided that they are not excluded. Canadian
citizenship is therefore given to persons through their filiation (jus
sanguinis) or through their birth on the territory (jus soli). They
are then Canadian citizens regardless of whether they have applied for it, and
regardless of whether they applied for or obtained a certificate of Canadian
citizenship. For a citizen at birth, the certificate of citizenship only
constitutes the recognition or evidence of this citizenship.
[69]
Thus, persons who are not citizens due to their
birth must apply for it. It will be granted to them if they meet the conditions
set out in the Act and will then have acquired it.
[70]
There is therefore a distinction between persons
who are citizens due to their birth, and persons who do not have it and must
acquire it and, therefore, have it granted to them.
[71]
Subsection 10(1) of the Act in effect on May 15,
2015, clearly refers, in particular, to the acquisition of citizenship
that occurred by false representation or fraud or by knowingly concealing
material circumstances and, consequently, cannot be used in the absence of
such an acquisition even in the presence of fraud.
[72]
Also, the case law submitted by the parties
makes no reference to a case where there was a revocation of citizenship
from an individual who was falsely represented as a natural-born citizen, nor a
case of simple cancellation of the certificate of citizenship of an
individual to whom citizenship had been granted.
[73]
The revocation procedure for citizenship set out
in subsection 10(1) in effect on May 15, 2015, of the Act requires that
individuals be a Canadian citizen and that they acquired citizenship through
fraud, thereby excluding natural-born citizens.
[74]
In this case, the applicants misrepresented
their children as Canadian citizens due to their births, under paragraph 3(1)(b)
of the Act. However, these children were never citizens, they never acquired
citizenship and it was never granted to them. CIC therefore could not
follow the revocation procedure in this instance, even if fraud had been
committed.
[75]
The Registrar had the jurisdiction to cancel the
certificates of citizenship, and her decision is consistent with the rule of
law because the children did not have citizenship and were not entitled to it.
The conditions precedent to citizenship listed in paragraph 3(1)(b) of
the Act were never met and the certificate of citizenship, even if issued, had
no effect (Afzal, at paragraph 25).
[76]
Lastly, section 6 of the Act, cited by the
applicants, also assumes the status of Canadian citizen, which the children do
not have. It is therefore not useful in this debate.
B.
Were the principles of natural justice and
procedural fairness respected?
(1)
Representations from CIC relating to the
revocation procedure at subsection 10(1) of the Act
[77]
This Court substantiated the communication
between CIC and the applicants and is satisfied that CIC never referred to the
revocation procedure in subsection 10(1) of the Act.
[78]
The correspondence from CIC to the applicants on
July 7, 2014, clearly refers to the recall of the certificates of citizenship;
that of October 1, 2014, details the steps that will follow the conclusion of
the criminal proceedings, refers to the recall of the certificates of
citizenship and, in particular, to the authority of the Registrar to decide
whether to recall certificates of citizenship; and that of April 22, 2015,
corrects the reference made by the applicants in their letter on April 17,
2015, and states that, in this case, it is not a revocation.
[79]
Moreover, the applicants themselves mostly refer
to the [translation] "recall
of certificates" in their correspondence. Based on the Court's review, the
term revocation appears for the first time on December 17, 2014, in an
email that the applicants sent to CIC, but there is no indication that they
then wanted or were waiting for the revocation procedure.
[80]
The applicants confirmed that they were
expecting the revocation procedure in the demand letter dated April 17, 2015,
which CIC corrected five (5) days later by insisting on the fact that this was
a certificate recall procedure.
[81]
On April 27, 2015, the applicants confirmed that
they were withdrawing the letter of procedural fairness that [translation] "noted
the correspondences from October 1, 2014, and April 22, 2015,"
which describe the certificate recall procedure
[82]
This Court cannot therefore find in favour of
the applicants because CIC never referred to the citizenship revocation
procedure, but instead referred to the certificate recall procedure and even
explained the steps in this procedure, the outcome of which is decided by the
Registrar. It certainly would have been preferable for CIC to refer to the
cancellation of the certificates, following from the verb used at subsection
26(3) of the Regulations, instead of referring to the recall of the
certificates, but this cannot lead to confusion with the revocation process.
(2)
Minister's obligations
[83]
This Court cannot conclude that the Minister
breached procedural fairness and natural justice by not considering the
humanitarian reasons raised by the applicants in their demand letter dated
April 17, 2015, because there is no indication that the Minister has the
discretionary authority that would allow him not to cancel a certificate of
citizenship issued illegally.
[84]
As stated by Mr. Justice Hughes in Valois-D'Orleans
v Canada (Minister of Citizenship and Immigration), 2005 FC 1009,
subsection 5(4) of the Act provides for the possibility for the Minister to
attribute citizenship in cases of "special and
unusual hardship." However, there is no indication that this
authority must or can be exercised in a certificate of citizenship cancellation
procedure in the absence of an application to this effect.
(3)
Persona designata
[85]
The applicants demanded that CIC designate a
point of contact, something that was not done. After reviewing the
communication, it cannot be concluded that this slowed or complicated the
process to the point of representing a breach of procedural fairness.
C.
Are the applicants entitled to costs?
[86]
This Court is satisfied that the facts do not
justify the awarding of costs.
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