Docket: T-232-16
Citation:
2016 FC 896
Ottawa, Ontario, August 3, 2016
PRESENT: The
Honourable Mr. Justice Russell
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BETWEEN:
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NISREEN AHAMED
MOHAMED NILAM
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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
I.
INTRODUCTION
[1]
The Applicant seeks an order of mandamus to
compel the responsible Citizenship Officer to continue to process his
citizenship application without regard to the cessation proceedings now
underway.
II.
BACKGROUND
[2]
The Applicant is a citizen of Sri Lanka. He was
granted refugee protection in Canada in 2009 based on his alleged fear of
persecution by the Liberation Tigers of Tamil Eelam. He became a permanent
resident of Canada in January 2011 and currently resides in Vancouver, British
Columbia.
[3]
After being granted permanent residence in
Canada, the Applicant returned to Sri Lanka for extended stays between August
2011 and May 2013. The Applicant renewed his Sri Lankan passport and travelled
to Sri Lanka twice for extended periods of time to visit his family and to be
married.
[4]
The Applicant is the subject of ongoing
cessation proceedings pursuant to ss 108(1)(a) and (2) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], being heard by the
Refugee Protection Division of the Immigration and Refugee Board of Canada
[RPD] as a result of his alleged re-availment of Sri Lanka’s protection. By a
decision dated March 27, 2015, the RPD denied the Minister’s application for
cessation. The Minister filed an application for judicial review of that
decision.
[5]
On October 8, 2015, Justice Mactavish of this
Court granted the Minister’s application for judicial review and found that the
RPD’s conclusions that the Applicant did not voluntarily return to Sri Lanka
and did not intend to re-vail himself of the country’s protection to be
unreasonable: Canada (Citizenship and Immigration) v Nilam, 2015 FC 1154
at paras 13-19. The Court ordered that the matter be re-determined by the RPD,
but a new hearing has not yet been scheduled.
[6]
On April 11, 2015, the Applicant applied for
Canadian citizenship. On July 15, 2015, the Applicant was invited to appear for
an interview, to write his knowledge test and to verify his identity documents
in support of his application. On July 30, 2015, the Applicant took his citizenship
test and presented his documentation for review. The Applicant passed the
knowledge examination, met the language requirements and confirmed his physical
presence in Canada for 1130 out of the 1460 days prior to the date of his
application.
[7]
On December 7, 2015, counsel for the Applicant
wrote to Citizenship and Immigration Canada [CIC] requesting an update on the
Applicant’s citizenship application.
[8]
On January 4, 2016, the Applicant was advised by
letter sent by a Citizenship Officer that on August 4, 2015, his citizenship
application proceeding had been suspended under s 13.1 of the Citizenship
Act, RSC, 1985, c C-29 [Citizenship Act], due to the cessation
proceeding scheduled to be re-determined by the RPD as a result of the Federal
Court’s decision.
III.
ISSUE
[9]
The only issue to be determined is whether the
Applicant has met the requirements for an order of mandamus.
IV.
STATUTORY PROVISIONS
[10]
The following provisions from the Citizenship
Act are relevant in this proceeding:
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Grant of
citizenship
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Attribution
de la citoyenneté
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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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(a) makes
application for citizenship;
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a) en fait la
demande;
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(b) is
eighteen years of age or over;
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b) est âgée
d’au moins dix-huit ans;
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(c) is a
permanent resident within the meaning of subsection 2(1) of the Immigration
and Refugee Protection Act, has, subject to the regulations, no unfulfilled
conditions under that Act relating to his or her status as a permanent
resident and has, since becoming a permanent resident,
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c) est un
résident permanent au sens du paragraphe 2(1) de la Loi sur l’immigration et
la protection des réfugiés, a, sous réserve des règlements, satisfait à toute
condition rattachée à son statut de résident permanent en vertu de cette loi
et, après être devenue résident permanent :
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(i) been
physically present in Canada for at least 1,460 days during the six years
immediately before the date of his or her application,
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(i) a été effectivement
présent au Canada pendant au moins mille quatre cent soixante jours au cours
des six ans qui ont précédé la date de sa demande,
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(ii) been
physically present in Canada for at least 183 days during each of four
calendar years that are fully or partially within the six years immediately
before the date of his or her application, and
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(ii) a été
effectivement présent au Canada pendant au moins cent quatre-vingt trois
jours par année civile au cours de quatre des années complètement ou
partiellement comprises dans les six ans qui ont précédé la date de sa
demande,
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(iii) met any
applicable requirement under the Income Tax Act to file a return of income in
respect of four taxation years that are fully or partially within the six
years immediately before the date of his or her application;
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(iii) a
rempli toute exigence applicable prévue par la Loi de l’impôt sur le revenu
de présenter une déclaration de revenu pour quatre des années d’imposition
complètement ou partiellement comprises dans les six ans qui ont précédé la
date de sa demande;
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(c.1)
intends, if granted citizenship,
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c.1) a
l’intention, si elle obtient la citoyenneté, selon le cas :
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(i) to
continue to reside in Canada,
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(i) de
continuer à résider au Canada,
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(ii) to enter
into, or continue in, employment outside Canada in or with the Canadian Armed
Forces, the federal public administration or the public service of a
province, otherwise than as a locally engaged person, or
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(ii)
d’occuper ou de continuer à occuper un emploi à l’étranger, sans avoir été
engagée sur place, au service des Forces armées canadiennes ou de
l’administration publique fédérale ou de celle d’une province, son père ou sa
mère — qui est citoyen ou résident permanent — et est, sans avoir été engagée
sur place, au service, à l’étranger, des Forces armées canadiennes ou de
l’administration publique fédérale ou de celle d’une province;
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(d) if under
65 years of age at the date of his or her application, has an adequate
knowledge of one of the official languages of Canada;
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d) si elle a
moins de 65 ans à la date de sa demande, a une connaissance suffisante de
l’une des langues officielles du Canada;
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(e) if under
65 years of age at the date of his or her application, demonstrates in one of
the official languages of Canada that he or she has an adequate knowledge of
Canada and of the responsibilities and privileges of citizenship; and
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e) si elle a
moins de 65 ans à la date de sa demande, démontre dans l’une des langues
officielles du Canada qu’elle a une connaissance suffisante du Canada et des
responsabilités et avantages conférés par la citoyenneté;
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(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.
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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.
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Suspension
of processing
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Suspension
de la procédure d’examen
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13.1 The
Minister may suspend the processing of an application for as long as is
necessary to receive
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13.1 Le
ministre peut suspendre, pendant la période nécessaire, la procédure d’examen
d’une demande :
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(a) any
information or evidence or the results of any investigation or inquiry for
the purpose of ascertaining whether the applicant meets the requirements
under this Act relating to the application, whether the applicant should be
the subject of an admissibility hearing or a removal order under the
Immigration and Refugee Protection Act or whether section 20 or 22 applies
with respect to the applicant; and
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a) dans
l’attente de renseignements ou d’éléments de preuve ou des résultats d’une
enquête, afin d’établir si le demandeur remplit, à l’égard de la demande, les
conditions prévues sous le régime de la présente loi, si celui-ci devrait
faire l’objet d’une enquête dans le cadre de la Loi sur l’immigration et la
protection des réfugiés ou d’une mesure de renvoi au titre de cette loi, ou
si les articles 20 ou 22 s’appliquent à l’égard de celui-ci;
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(b) in the
case of an applicant who is a permanent resident and who is the subject of an
admissibility hearing under the Immigration and Refugee Protection Act, the
determination as to whether a removal order is to be made against the
applicant.
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b) dans le
cas d’un demandeur qui est un résident permanent qui a fait l’objet d’une
enquête dans le cadre de la Loi sur l’immigration et la protection des
réfugiés, dans l’attente de la décision sur la question de savoir si une
mesure de renvoi devrait être prise contre celui-ci.
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[11]
The following provisions of the IRPA are
relevant in this proceeding:
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Cessation of refugee protection — foreign national
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Perte de l’asile — étranger
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40.1 (1) A foreign national is inadmissible on a final
determination under subsection 108(2) that their refugee protection has
ceased.
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40.1 (1) La décision prise, en dernier ressort, au titre du
paragraphe 108(2) entraînant la perte de l’asile d’un étranger emporte son
interdiction de territoire.
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(2) A
permanent resident is inadmissible on a final determination that their
refugee protection has ceased for any of the reasons described in paragraphs
108(1)(a) to (d)
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(2) La
décision prise, en dernier ressort, au titre du paragraphe 108(2) entrainant,
sur constat des fait mentionnes à l’un des alinéas 108(1)(a) à (d), la perte
d l’asile d’un résident permanent emporte son interdiction de territoire.
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Permanent
resident
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Résident
permanent
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46 (1) A
person loses permanent resident status
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46 (1)
Emportent perte du statut de résident permanent les faits suivants :
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(c.1) on a
final determination under subsection 108(2) that their refugee protection has
ceased for any of the reasons described in paragraphs 108(1)(a) to (d);
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c.1) la
décision prise, en dernier ressort, au titre du paragraphe 108(2) entraînant,
sur constat des faits mentionnés à l’un des alinéas 108(1)a) à d), la perte
de l’asile;
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Rejection
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Rejet
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108 (1) A
claim for refugee protection shall be rejected, and a person is not a
Convention refugee or a person in need of protection, in any of the following
circumstances:
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108 (1) Est
rejetée la demande d’asile et le demandeur n’a pas qualité de réfugié ou de
personne à protéger dans tel des cas suivants :
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(a) the
person has voluntarily reavailed themself of the protection of their country
of nationality;
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a) il se
réclame de nouveau et volontairement de la protection du pays dont il a la
nationalité;
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(b) the
person has voluntarily reacquired their nationality;
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b) il
recouvre volontairement sa nationalité;
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(c) the
person has acquired a new nationality and enjoys the protection of the
country of that new nationality;
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c) il
acquiert une nouvelle nationalité et jouit de la protection du pays de sa
nouvelle nationalité;
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(d) the
person has voluntarily become re-established in the country that the person
left or remained outside of and in respect of which the person claimed
refugee protection in Canada; or
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d) il
retourne volontairement s’établir dans le pays qu’il a quitté ou hors duquel
il est demeuré et en raison duquel il a demandé l’asile au Canada;
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(e) the
reasons for which the person sought refugee protection have ceased to exist.
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e) les
raisons qui lui ont fait demander l’asile n’existent plus.
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Cessation
of refugee protection
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Perte de
l’asile
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(2) On
application by the Minister, the Refugee Protection Division may determine
that refugee protection referred to in subsection 95(1) has ceased for any of
the reasons described in subsection (1).
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(2) L’asile
visé au paragraphe 95(1) est perdu, à la demande du ministre, sur constat par
la Section de protection des réfugiés, de tels des faits mentionnés au paragraphe
(1).
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Effect of
decision
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Effet de
la décision
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(3) If the
application is allowed, the claim of the person is deemed to be rejected.
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(3) Le
constat est assimilé au rejet de la demande d’asile.
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V.
ARGUMENTS
A.
Applicant
[12]
The Applicant submits that by meeting all conditions
for Canadian citizenship, he has acquired a right to Canadian citizenship.
[13]
The test for mandamus was set out in Dragan
v Canada (Minister of Citizenship and Immigration), 2003 FCT 211 at para 39
[Dragan]:
(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.
[14]
The language of s 5 of the Citizenship Act is
mandatory, and says that an applicant “shall” be
granted citizenship where he or she meets all of the necessary requirements.
There is therefore a duty to act owed to the Applicant and the suspension of the
process is unauthorized. The Applicant argues that the first two conditions of
the test for mandamus (1 and 2) have therefore been met.
[15]
The Applicant notes that in the recent decision
of Godinez Ovalle v Canada (Citizenship and Immigration), 2015 FC
935 [Godinez Ovalle], I stated the following:
[64] …The purpose of the suspension in
this case is to allow CBSA to conduct cessation proceedings that may result in
the Applicant losing permanent residence status at some time in the future. I
do not think that either the old s 17 or the present s 13.1 authorize
suspension for that reason …The Minister has suspended the citizenship
application to give CBSA time to, possibly, strip the Applicant of his
permanent residence status at some time in the future so that he will no longer
be eligible for citizenship. In my view, that is a misplaced and abusive use of
s 13.1.
[65] I say this because under s 13.1
those specific instances where this provision can be used to suspend the
processing of an application, and that are contingent upon something that could
happen in the future, are clearly set out. They deal with admissibility and
security issues. Re-availment, and cessation proceedings based upon
re-availment, are not admissibility or security issues. Even if cessation
proceedings before the RPD could be called an investigation or an inquiry, they
are not an investigation or inquiry into whether the Applicant meets the
requirements under the Act; they are an investigation or an inquiry into
whether the Applicant should be stripped of a qualification and a requirement
(permanent residence) that CIC knows full-well he holds because CIC has granted
and confirmed that requirement.
[16]
The Applicant also says that the third criteria
for mandamus (3(a) and 3(b)) are also fulfilled in this case. He says he
has met all of the requirements for citizenship (including age, status as a
permanent resident, and knowledge of an official language). The delay in the
processing of his application is unnecessary, unreasonable and done for an
improper purpose. The Respondent informed the Applicant of the status of his
application only after his counsel requested an explanation as to what else was
required, or notice of when the citizenship oath would be scheduled.
B.
Respondent
[17]
The Respondent says that the Applicant has not
demonstrated that an order of mandamus is warranted in the present case.
The Applicant has not established the presence of a public duty to act,
unreasonable delay, or that the balance of convenience is in his favour: Apotex
Inc v Canada (Attorney General), [1994] 1 FC 742 (CA); aff’d [1994]
3 SCR 1100.
[18]
The Court has recognized that an applicant’s
immigration status should be conclusively settled, including by the RPD in
cessation proceedings, prior to the determination of his or her citizenship application:
Jaber v Canada (Citizenship and Immigration), 2013 FC 1185 at para 32; Tapie
v Canada (Citizenship and Immigration), 2007 FC 1048 at paras 9-12; Seyoboka
v Canada (Minister of Citizenship and Immigration), 2005 FC 1290 at para
10.
[19]
The Respondent says that for an order for mandamus
to issue, an applicant must show that officials have been unresponsive, slow or
have otherwise not dealt with the issue in a reasonable manner: Tumarkin v
Canada (Citizenship and Immigration), 2014 FC 915 at paras 17-18. Since being
received, the Applicant’s citizenship application has been processed towards a
determination, including the current suspension. The Respondent notes that the
RPD may very well reject the Minister’s cessation application and the
citizenship application may ultimately be approved, but until such a
determination is made, the Minister is authorized to suspend the application.
[20]
The Applicant has candidly admitted that he is
applying for citizenship in order to forestall an RPD decision that could
result in his losing refugee protection and permanent residence status in
Canada. The Respondent submits that an order of mandamus would
perpetuate an unseemly race between the process being followed by the Minister
and that being pursued by the Applicant.
[21]
The Respondent takes particular issue with the
Applicant’s reliance on Godinez Ovalle, above. The Respondent notes that,
in that case, the applicant’s citizenship application was suspended four months
prior to s 13.1 of the Citizenship Act coming into force. Here, the
section was already in force before the Applicant applied for citizenship and
his application was suspended immediately once it was determined that the
cessation proceeding were still ongoing. The Respondent goes on to assert that
not only are the present facts distinguishable from those of Godinez Ovalle,
but the decision was also wrong in law as it overlooked IRPA provisions
with respect to cessation of refugee protection and the conditional nature of
permanent resident status. Better parallels can be found in Justice O’Keefe’s decision
in Valverde v Canada (Citizenship and Immigration), 2015 FC 1111 [Valverde]
which found that s 13.1 did not apply where the Minister had purported to
suspend the applicant’s citizenship application before s 13.1 came into force.
The Respondent also notes similarities between this case and Khalifa v
Canada (Citizenship and Immigration), 2016 FC 119, wherein Justice Mosley
observed that a citizenship application does not shield an applicant from an
investigation into his refugee status.
[22]
Finally, as regards the balance of convenience,
the Minister submits that it favours completion of the process initiated under
s 108 of the IRPA which will determine whether the Applicant has met a
fundamental requirement for Canadian citizenship. The Applicant has not
demonstrated that the delay has caused significant prejudice. He remains in
Canada as a permanent resident and is authorized to work: Blencoe v British
Columbia (Human Rights Commission), 2000 SCC 44 at para 101; Vaziri v
Canada (Minister of Citizenship and Immigration), 2006 FC 1159 at para 52.
The Court must consider which of the two parties will suffer the greater harm
from a refusal or granting of the order requested. The Respondent says that
here, the order would do harm to the public interest by interfering with the
administration of Canada’s citizenship program.
VI.
ANALYSIS
A.
Section 13.1 of the Citizenship Act
[23]
The Minister has suspended the processing of the
Applicant’s application for citizenship relying upon s 13.1 of the Citizenship
Act which reads as follows:
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13.1 The
Minister may suspend the processing of an application for as long as is
necessary to receive
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13.1 Le
ministre peut suspendre, pendant la période nécessaire, la procédure d’examen
d’une demande :
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(a) any
information or evidence or the results of any investigation or inquiry for
the purpose of ascertaining whether the applicant meets the requirements
under this Act relating to the application, whether the applicant should be
the subject of an admissibility hearing or a removal order under the
Immigration and Refugee Protection Act or whether section 20 or 22 applies
with respect to the applicant; and
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a) dans
l’attente de renseignements ou d’éléments de preuve ou des résultats d’une
enquête, afin d’établir si le demandeur remplit, à l’égard de la demande, les
conditions prévues sous le régime de la présente loi, si celui-ci devrait
faire l’objet d’une enquête dans le cadre de la Loi sur l’immigration et la
protection des réfugiés ou d’une mesure de renvoi au titre de cette loi, ou
si les articles 20 ou 22 s’appliquent à l’égard de celui-ci;
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(b) in the
case of an applicant who is a permanent resident and who is the subject of an
admissibility hearing under the Immigration and Refugee Protection Act, the
determination as to whether a removal order is to be made against the
applicant.
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b) dans le
cas d’un demandeur qui est un résident permanent qui a fait l’objet d’une
enquête dans le cadre de la Loi sur l’immigration et la protection des
réfugiés, dans l’attente de la décision sur la question de savoir si une
mesure de renvoi devrait être prise contre celui-ci.
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[24]
At the hearing before me, Minister’s counsel
clarified that the Minister had suspended the citizenship application to receive
any information or evidence or the results of any investigation or inquiry “for the purpose of ascertaining whether the application
meets the requirements under this Act relating to the application….” The
Minister is not concerned about an admissibility hearing or a removal order
under IRPA or whether ss 20 or 22 apply with respect to the Applicant.
Nor does the Minister rely upon s 13.1(b).
[25]
The Minister has done this because cessation
proceedings are underway so that the Applicant could, at some time in the
future (no one knows when), lose his permanent resident status because he has
ceased to be a refugee, and under s 5 of the Citizenship Act permanent
residence is a prerequisite for citizenship.
[26]
My review of the record leads me to conclude
that the Applicant has satisfied all other requirements for citizenship and
that, if it were not for the suspension of the citizenship application to await
the outcome of the cessation proceedings, he would have been granted
citizenship some time ago.
[27]
So the central issue in this application is
whether s 13.1 authorizes the Minister to suspend the processing of the
Applicant’s citizenship application pending the final outcome of the cessation
proceedings.
[28]
This issue has previously come before me in Godinez
Ovalle, above. I decided that s 13.1 did not give the Minister the power to
suspend a citizenship application in these circumstances:
[63] Clearly, the wording of this new
provision allows suspension beyond the narrow security and admissibility
context and permits it “for as long as necessary” to receive “any information
or evidence or the results of any investigation or inquiry for the purpose of
ascertaining whether the applicant meets the requirements under the Act
relating to the application….” The issue for me is whether these words
authorize the Minister to suspend a citizenship application in order to allow
CBSA to conduct cessation proceedings before the RPD.
[64] As the Applicant points out, he is
currently a permanent resident and will remain one until such time as that
status is removed, which may never happen. So he does meet the permanent
residence requirement under the Act. No inquiry is needed to establish that
fact. The purpose of the suspension in this case is to allow CBSA to conduct
cessation proceedings that may result in the Applicant losing permanent
residence status at some time in the future. I do not think that either the old
s 17 or the present s 13.1 authorize suspension for that reason. The Minister
has suspended the application not because the Applicant does not meet the
permanent residence requirement (it was reconfirmed in 2011 after the
Applicant’s final visit to Guatemala with a full knowledge of the Applicant’s
comings and goings). The Minister has suspended the citizenship application to
give CBSA time to, possibly, strip the Applicant of his permanent residence
status at some time in the future so that he will no longer be eligible for
citizenship. In my view, that is a misplaced and abusive use of s 13.1.
[65] I say this because under s 13.1
those specific instances where this provision can be used to suspend the
processing of an application, and that are contingent upon something that could
happen in the future, are clearly set out. They deal with admissibility and
security issues. Re-availment, and cessation proceedings based upon
re-availment, are not admissibility or security issues. Even if cessation
proceedings before the RPD could be called an investigation or an inquiry, they
are not an investigation or inquiry into whether the Applicant meets the
requirements under the Act; they are an investigation or an inquiry into
whether the Applicant should be stripped of a qualification and a requirement
(permanent residence) that CIC knows full-well he holds because CIC has granted
and confirmed that requirement.
…
[73] In my view, there is also no
statutory authority for what CIC has done in the present case. As I have
already said, I do not think that s 17 of the old Citizenship Act or s
13.1 of the present Citizenship Act address the Applicant’s situation.
This is because the Applicant clearly met all of the requirements of the Citizenship
Act when he was interviewed on February 14, 2014. He had received
immigration clearance on May 28, 2013 and this was on his application file.
Neither s 17 nor s 13.1 say that the Minister can or should suspend an
application to investigate the cessation process though CBSA. Maybe s 13.1
should allow for that to occur, but, in my view, it does not. And just as
judges cannot make law by attempting to fill in gaps in legislation, nor can
public servants give themselves powers by filling gaps through the use of
policy directives. It seems to me that this is such an important and
far-reaching issue that only Parliament can address and legislate what is to
happen if residency concerns arise when someone, such as the Applicant, has
permanent residence that has been cleared by CBSA with a full knowledge of the
Applicant’s visits to Guatemala, and where CBSA has both endorsed his permanent
residency card and provided immigration clearance. And it really does seem
unfair to me that CIC and/or CBSA should take the steps they did here without
alerting the Applicant of the perceived problem. The Respondent says this
process should not be a race, but clearly that is what CIC and CBSA have
decided it is because, by not alerting the Applicant to the fact that his
permanent residency and his chance at citizenship were at stake, they gave
themselves the head start they felt they needed to investigate and complete the
cessation process before the Applicant could take any action (including a mandamus
application) to protect his rights. As things stand, this is a race, but it is
a race in which people like the Applicant may not even know they are running
because of lack of notification and strenuous resistance to disclosure by a
powerful state apparatus. In my view, only Parliament can address this problem
if it is considered to be one. However, it is noteworthy that when Parliament
amended the Citizenship Act and brought the present s 13.1 into being,
it did not extend the Minster’s suspension powers to include “immigration
clearance,” so that, for the time being at least, I think it has to be assumed
that what Justice Mactavish said about this issue generally in Stanizai
– decided before the new Citizenship Act came into force – reflects
Parliament’s present intentions on this issue. As the Applicant points out, the
RPD itself has found that bringing cessation proceedings to vitiate permanent
residence after years of delay is contrary to Canada’s obligations under both the
Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS
137 and the Immigration and Refugee Protection Act, SC 2001, c 27
[IRPA]. See Re X (7 October 2014), Vancouver VB4-01572 (RPD) at para 35.
In addition, in reviewing a decision to bring an application for cessation
before the RPD, Justice Mosley commented on the fact that long-time permanent
residents’ travel was always within the knowledge of the Minister which
suggested that the Minister “had been lying in the weeds waiting for the legislative
change to pursue permanent residents” (Bermudez, above, at para 28). The
Minister may have received the legislative change necessary to pursue permanent
residents, but, in my view, the Minister did not receive the legislative change
necessary to suspend citizenship applications to pursue permanent residents in
this manner.
[74] If the suspension is not supported
by either s 17 of the old Citizenship Act or s 13.1 of the new Citizenship
Act as discussed above, then the Minister is bound by s 5(1) to continue
processing the Applicant’s application. I note that s 11(5) of the Citizenship
Regulations, which made it mandatory to forward the file to a citizenship
judge for consideration, has been repealed. But, in my view, the repeal of s
11(5) of the Citizenship Regulations does not affect the Minister’s
obligation under s 5(1) to grant the Applicant citizenship if he fulfills the
statutory requirements. In this case the Applicant’s citizenship application
was improperly suspended four months before s 13.1 came into force and the
Minister seems to have made no effort to invoke and rely upon s 13.1 until
after this mandamus application was filed on October 23, 2014.
[29]
The Minister did not seek to certify a question
or to appeal my decision in Godinez Ovalle. There are different facts in
the present case from what came before me in Godinez Ovalle, but they do
not affect the basic issue of whether the Minister can use s 13.1 to suspend a
citizenship application if cessation proceedings are underway.
[30]
As justification for disregarding my decision in
Godinez Ovalle, the Minister relies upon Valverde, above, which
was decided by Justice O’Keefe on September 15, 2015, a month and a half
after my decision dated July 30, 2015. The Respondent relies upon
paragraph 52 of Justice O’Keefe’s decision which reads as follows:
[52] On August 1, 2014, section 13.1 of
the Citizenship Act came into force, providing explicit authority for
the Minister to suspend processing the citizenship application for as long as
is necessary to receive the results of any inquiry that would implicate the
applicant’s qualification for citizenship. However, on August 15, 2013, section
13.1 of the Citizenship Act had not yet come into force. At that time
and prior to this amendment, the Minister could only put an application on hold
pursuant to the prohibitions listed under the Citizenship Act. Here, the
applicant did not fall under any of these prohibitions.
[31]
This, of course, does not address the issue that
was before me in Godinez Ovalle. Justice O’Keefe was not required
to interpret the scope of s 13.1 because it had not come into force at the
material time, and Justice O’Keefe granted mandamus in Valverde
on the basis, inter alia, that “CIC put a hold
on the applicant’s citizenship application without any statutory authority”
(para 63). So Justice O’Keefe did not have to decide whether s 13.1 provided
authority to suspend the citizenship process on the grounds that have been used
to justify suspension in this case, or that were advanced in Godinez Ovalle.
When Justice O’Keefe says in para 52 of Valverde that “[o]n August 1, 2014, section 13.1 of the Citizenship Act
came into force, providing explicit authority for the Minister to suspend
processing the citizenship application for as long as is necessary to receive
the results of any inquiry that would implicate the applicant’s qualification
for citizenship,” he was giving a rough summary of what s 13.1 says; he
was not deciding whether s 13.1 gave the Minister authority to suspend a
citizenship application that was otherwise complete pending the outcome of
cessation proceedings.
[32]
In fact, Justice O’Keefe makes specific
reference to Godinez Ovalle and its inapplicability to the facts before
him:
[61] The parties also made submissions
with respect to Mr. Justice James Russell’s decision in Godinez Ovalle v
Canada (Minister of Citizenship and Immigration), 2015 FC 935. I am of the
view that this decision does not assist the respondent. In that case, an order
for mandamus was granted after the respondent suspended the processing
of the applicant’s citizenship application pursuant to section 13.1 of the Act.
[62] Had the CIC reversed the
applicant’s immigration clearance on August 15, 2013 pending inquiries,
subsection 11(1) of the Regulations would not have been satisfied and
accordingly, the Registrar’s duty to forward the application to a citizenship
judge pursuant to subsection 11(5) of the Regulations would not have been
required.
[63] But this was not what happened. In
my view, what happened was that CIC put a hold on the applicant’s citizenship
application without any statutory authority.
[33]
Had Justice O’Keefe felt that he had to deviate
from my conclusions about s 13.1 in Godinez Ovalle, he would have done
so in accordance with the rules of judicial comity.
[34]
So I cannot accept that the Minister had any
justification or authority to suggest that the Court’s position on whether s
13.1 could be used in these circumstances was unclear. The Minister declined to
pursue an appeal of Godinez Ovalle and then looked for a way to ignore
the decision.
[35]
That being the case, I see no reason to differ
in the present case from my reasons in Godinez Ovalle as regards the
interpretation of s 13.1. In my view, it does not provide the Minister with the
statutory authority to suspend the processing of a citizenship application
pending the final outcome of cessation proceedings. The Minister complains that
this places him in a difficult situation when it comes to coordinating
citizenship applications and cessation proceedings. However, as I pointed out
in Godinez Ovalle, the obvious solution to such a problem is to appeal
and seek the guidance of the Federal Court of Appeal or to pursue a legislative
amendment to allow the Minister to do what he thinks is necessary in such
circumstances. To simply ignore the Court’s decision and proceed as though Godinez
Ovalle had never been decided is neither legal or conducive to a fair and
efficient system. It would appear that the Minister has come around to this way
of thinking because he is now, as part of this application, requesting that the
issue be placed before the Federal Court of Appeal by way of a certified
question.
B.
Mandamus
[36]
The criteria for a grant of mandamus are not
in dispute in this application. In Dragan, above, at para 39, Justice
Kelen reiterated the seven elements established by the Federal Court of Appeal
for the issuance of a writ of mandamus:
(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.
[37]
On the record before me, I find that the
Applicant has met all of these criteria.
[38]
The Applicant has met all of the requirements
for citizenship. Other than the possible loss of permanent residence status as
a result of the cessation proceedings, the Respondent does not dispute this,
but has asked for some flexibility in any order I make to bring the Applicant’s
file up to date, if necessary.
[39]
The Minister has a mandatory public duty under s
5(1) of the Citizenship Act to grant citizenship to the Applicant who
has met the requirements and the Applicant has a clear right to the performance
of that duty.
[40]
The Applicant’s counsel has requested that the
application process proceed to completion and the Respondent has refused by
letter dated January 4, 2016 to process the application.
[41]
No other adequate remedy is available to the
Applicant and the order will obviously be of some practical value and effect to
him.
[42]
No equitable bar to relief has been raised and I
can see none on the record.
[43]
The balance of convenience favours the
Applicant. The Respondent has no legal authority to suspend the application
process and, but for the suspension and refusal to process, the Applicant
would, in all likelihood, be a Canadian citizen by now.
C.
Certification
[44]
The Respondent has raised the following question
for certification:
Can the Minister suspend the processing of
an application for citizenship pursuant to his authority under s. 13.1 of the Citizenship
Act, to await the results of cessation proceedings in respect of the
applicant under s 108(2) of the Immigration and Refugee Protection Act?
[45]
The Applicant agrees to the question but has
suggested some variations for purposes of clarification:
Does s 13.1 of the Citizenship Act
authorize the Minister of Immigration, Refugees and Citizenship Canada to
suspend for as long as necessary the processing of an application for a grant
of citizenship pursuant to s 5(1) of the Citizenship Act, to receive any
information or evidence or the results of any investigation or inquiry
regarding whether a permanent resident should be the subject of a cessation
proceeding pursuant to s 108(2) of IRPA or, if such a proceedings has
already been initiated by the Minister, the results of such proceeding, when
the person has otherwise already met all the requirements for a grant of
citizenship?
[46]
I note that a similar question was proposed by
the Minister before Justice Bell in Mokhtar Tayeb Ali v Canada (Citizenship
and Immigration), T-1799-15, heard on June 2, 2016 but Justice Bell has
not yet issued his decision.
[47]
It would appear that the Respondent is now of
the view that this issue needs to be addressed by the Federal Court of Appeal,
and the Applicant has not seriously opposed the Respondent’s position. In view
of some of the arguments raised in this application (and which were not made in
Godinez Ovalle), I am now of the view that the Federal Court of Appeal’s
authoritative guidance is required and that the criteria for certification are
satisfied. The threshold for certifying a question is whether it is a serious
question of general importance that would be dispositive of the appeal. I think
that threshold is established in this case.
D.
Costs
[48]
In my view, special reasons for costs arise on
the present facts. As Huot v Canada (Public Safety and Emergency
Preparedness), 2009 FC 917, makes clear, special costs under Rule 22 are
warranted where there is evidence of bad faith, or where a party has acted in a
manner that may be characterized as unfair, oppressive or improper.
[49]
In the present case, I find that:
(a) The Minister’s servants have acted in bad faith and in an improper
manner by simply ignoring the Court’s clear decision in Godinez Ovalle,
above, a decision which they could have sought to appeal but did not. For
reasons given, I do not accept that Justice O’Keefe’s decision in Valverde,
above, provides any kind of justification for ignoring Godinez Ovalle;
(b) As a result of the conduct of the Minister’s servants in ignoring Godinez
Ovalle, the Applicant has been put to the expense of litigating the s 13.1
issue again and was forced to bring this mandamus application before the
Court;
(c) The Applicant’s conduct throughout has been blameless. He acquired
his permanent residence status honestly and in accordance with Canadian law. He
has also satisfied the conditions for citizenship but has been deprived of that
status by the improper conduct of the Minister’s servants as set out above;
(d) There is also a distinct element of unfairness and subterfuge evident
in the conduct of the Minister’s servants. As was the case in Godinez Ovalle,
the Minister suspended the Applicant’s citizenship application without
notification that there was any problem and left the Applicant to resort to
legal means to find out what had occurred. Given the decision in Godinez
Ovalle, it could hardly have been apparent to the Applicant that the
Minister would again have resorted to s 13.1 as a justification for such
action. This resulted in further delay and unnecessary anxiety to the
Applicant;
(e) The Respondent also ignored the decision of the RPD which dismissed
the cessation application and proceeded as though that decision had no legal
effect.
[50]
Given the above, it is my view that the
Minister’s servants have behaved in a reprehensible manner that warrants
solicitor and client costs. The Respondent has deliberately chosen to ignore a
clear Court decision on the scope of s 13.1 without seeking to appeal that
decision, and has put the Applicant to the trouble of having to litigate the
issue again.
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