Docket: T-1931-14
Citation:
2016 FC 119
Vancouver, British Columbia, February 2, 2016
PRESENT: The
Honourable Mr. Justice Mosley
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BETWEEN:
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ABDALLA OSAMA
KHALIFA
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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.
Overview
[1]
This is a motion in writing by the Respondent
Minister under Rule 369 of the Federal Courts Rules, SOR/98-106, for an order
that the Applicant’s application for judicial review seeking an order in the
nature of mandamus to process his citizenship application is moot and
should, therefore, be dismissed. The motion is opposed by the Applicant.
II.
Background
[2]
The Applicant, a citizen of Egypt, arrived in
Canada on November 18, 2003. On November 9, 2004, he was determined to be a
Convention refugee. On October 26, 2006, the Applicant became a permanent
resident of Canada.
[3]
On December 31, 2010, the Applicant completed an
application for Canadian citizenship which was received by the processing
centre in Sydney, Nova Scotia on February 4, 2011. In his application, the Applicant
indicated that he had been absent from Canada for 353 days, from December 31,
2006, to December 31, 2010, and disclosed several trips to Egypt and an
American travel document. He wrote his citizenship test in Vancouver on July
10, 2012, and met with an officer who requested that he complete a residence
questionnaire. The officer started a Citizenship Application Review file. The
file was reviewed on November 19, 2013, with notations referring to a “shortfall and U.S. residency”. On January 20, 2014, a
citizenship judge reviewed the file and determined that a residency hearing
would be required.
[4]
On August 1, 2006, the Applicant became a
permanent resident of the United States. On February 11, 2011, the Applicant
applied for a permanent resident card at the Canadian visa office in Seattle,
Washington. He confirmed that he was then living and working in the United
States.
[5]
In May 2012, the Applicant was granted U.S.
citizenship. This fact was brought to the attention of the Minister in November
2013. It was determined that to obtain US citizenship the Applicant would have had
to establish five years of continuous residence in that country, and consequently,
the Minster initiated an investigation. Following an exchange of correspondence
with the Applicant and his counsel, cessation proceedings were commenced on March
3, 2014.
[6]
On March 6, 2014, the Applicant filed an application
for leave and judicial review of the Minister’s decision to commence a cessation
application. In an unreported judgment dated October 20, 2014, Madam Justice
Tremblay-Lamer dismissed the application: Khalifa v Canada (Minister of
Citizenship and Immigration), Court File No. IMM-1407-14. In her judgment,
Justice Tremblay-Lamer certified a serious question of general importance. On
November 19, 2014, the Applicant filed a notice of appeal to the Federal Court
of Appeal. The Applicant discontinued the appeal on March 6, 2015.
[7]
The cessation application was heard by the
Refugee Protection Division (RPD) of the Immigration and Refugee Board on
November 5, 2014, who rendered a decision on February 20, 2015. The RPD
determined that the Applicant’s Convention refugee status had ceased pursuant
to ss 108 (c) and (e) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (IRPA) and that the Applicant was no longer a permanent
resident of Canada.
[8]
On March 10, 2015, the Applicant filed an application
for leave and judicial review of the RPD’s decision ceasing his refugee status.
On October 20, 2015, Mr. Justice Annis dismissed that application: Khalifa v
Canada (Minister of Citizenship and Immigration), 2015 FC 1181.
[9]
The Applicant’s Canadian citizenship application
remained pending throughout these proceedings. A citizenship judge reviewed the
application on January 20, 2014, and due to concerns about undeclared absences,
the Applicant was advised on July 28, 2014, that a hearing would take place on
August 12, 2014. That hearing was canceled. In a letter dated August 21, 2014,
the Applicant provided additional evidence for consideration in the
determination of his citizenship application, and acknowledged that he had
previously submitted erroneous information.
[10]
The underlying application for a writ of
mandamus was filed on September 8, 2014. The processing of the application
was suspended under s 13.1 of the Citizenship Act, R.S.C., 1985, c. C-29
(the Act), as the Applicant was the subject of an ongoing CBSA
investigation. The Applicant agreed to the suspension pending the final
determination of his application for judicial review of the RPD’s cessation
decision.
[11]
On April 9, 2015, the parties appeared before
the undersigned judge for the hearing of the underlying mandamus
application and jointly requested that it be adjourned sine die pending
the outcome of the cessation proceedings. As noted above, that decision was
rendered by Mr. Justice Annis on October 20, 2015.
[12]
In my order dated April 9, 2015, I provided the
following:
1 The hearing of the application for judicial review
hearing is adjourned sine die;
2. Counsel for the parties shall advise the Court Registry
when the matter may be set down again for hearing and provide a proposed
schedule for the completion of the remaining steps required to perfect the
application; and
3. Should it occur that there were no grounds for continuing
the present application; counsel for the Applicant shall file a Notice of
Discontinuance at the earliest opportunity with the Court Registry.
[13]
On November 16, 2015 counsel for the Applicant
wrote to the Court. He advised that as a result of the dismissal of the
application for judicial review of the decision ceasing his refugee protection,
the Applicant is no longer a permanent resident of Canada pursuant to ss 46 (1)
(c.1) of IRPA and is currently ineligible for a grant of citizenship. Counsel
noted that I had indicated at the hearing on April 9, 2015, that the matter of
the mandamus application would presumably be moot if the judicial review
of the cessation decision was dismissed. Counsel indicated that there continued
to be an issue with regard to whether the Court had the jurisdiction to grant
Mr. Khalifa a remedy, and asked that the Minister not make a decision on the
outstanding application for citizenship until the Court had given direction on
the matter.
[14]
Normally, the correct and proper way to deal
with an application for judicial review is to proceed to a hearing on the
merits. However, the Court may, when it is appropriate, dismiss an application
when it is moot and the Court chooses not to exercise its discretion to hear
the matter; Rahman v. Canada (Minister of Citizenship and Immigration),
2002 FCT 137, at paras 8-11.
[15]
Accordingly, a direction was issued on December
4, 2015, that the Minister file a motion for a determination of whether the
underlying mandamus application is now moot. The Respondent filed the
motion on January 8, 2016, and the Applicant’s memorandum of argument was
received January 18, 2016.
III.
Issues
[16]
The sole issue is whether the application for
judicial review seeking an order of mandamus is now moot and should be dismissed
without a hearing on the merits.
IV.
Submissions of the Parties
[17]
The Respondent submits that in Borowski v Canada
(Attorney General), [1989] 1 S.C.R. 342, at para 16 (Borowski), the
Supreme Court of Canada set out two criteria for determining whether a matter
is moot:
1. Whether the Court’s decision would have any practical
effect on resolving some live controversy between the parties; and
2. Whether the issues between the parties have become “academic” or “the tangible and concrete
dispute has disappeared”.
[18]
The Court’s exercise of discretion in
determining whether to hear the matter should be guided by the three policy
rationales underlining the doctrine: the presence of an adversarial context;
the concern for judicial economy; and the need for the court to be sensitive to
its role as the adjudicative branch in government: Borowski, at para 16;
R v Adams, [1995] 4 S.C.R. 707 at pp 718-719.
[19]
The Respondent concedes that there remains an
adversarial context as the Applicant argues that the Minister was not entitled
to suspend the scheduled interview with a citizenship judge. However, the Respondent
requests that the Court not exercise its discretion to hear the case on the
grounds of judicial economy and non-interference with ongoing administrative
processes. The Applicant’s personal circumstances do not make this case one
where the public’s interest is at stake. The Respondent submits that if he does
not meet the statutory requirements, he may pursue a grant of citizenship under
ss 5 (4) of the Citizenship Act, citing reasons of “special and unusual hardship”.
[20]
It is the Respondent’s position that the relief
sought by the Applicant, namely that his application for citizenship be processed,
is not being contested. There is no refusal on the part of the Minister to determine
the application. It was suspended at the request of the Applicant pending the
outcome of the final determination of the judicial review of the RPD’s
cessation decision. There is no longer any legal or factual basis to continue
to suspend the processing of the application. Accordingly, the relief sought in
the underlying application for mandamus is moot.
[21]
The Applicant argues that the Court has the
jurisdiction to issue a declaratory order nunc pro tunc that his
citizenship application be assessed as of the date initiating this application
seeking an order in the nature of mandamus. He contends that the actions
of the Minister in refusing to fulfill a statutory duty to make a decision on
the Applicant’s outstanding citizenship application on the basis that there was
a pending cessation investigation against him were unlawful and constitute an
abuse of process. Once the application was referred to a citizenship judge, the
Applicant argues, the judge has 60 days to determine whether or not the person
who made the application meets the requirements of the Act as set out in s 14
of the Citizenship Act. Mr. Khalifa submits that his application was
referred to a citizenship judge on July 19, 2012, or at the very latest by
January 20, 2014.
[22]
An individual applying for citizenship in Canada
must first be a permanent resident: Citizenship Act, s 5(1) (c). By
virtue of amendments to IRPA brought into effect on June 28, 2012,
permanent residence status is lost when the RPD finds that an individual has
ceased to be a protected person: IRPA, s 40.1 (2). Section 46(1) (c.1)
of IRPA, which came into force on November 5, 2014, provides that a
person loses permanent residence status when their refugee protection has
ceased for any of the reasons described in paragraphs 108 (1)(a) to (d).
[23]
Under s 13.1 of the Citizenship Act, which
came into force on August 1, 2014, the Minister may suspend an application.
This suspension may continue without time limitation, for as long as it is
necessary to receive 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.
[24]
The Applicant relies on the decision of Mr.
Justice Russell in Godinez Ovalle v Canada (Minister of Citizenship and
Immigration), 2015 FC 935, and argues that he is similarly situated to the
applicant in Murad v Canada (Minister of Citizenship and Immigration),
2013 FC 1089.
[25]
The Respondent submits that in both Godinez
Ovalle and Murad, the Minister had determined that the applicants
met all of the requirements for citizenship prior to the Minister initiating
cessation investigations. In this case, however, neither the Minister nor a
citizenship judge has determined that the Applicant met the statutory
requirements for citizenship. Whether or not the Applicant met the residence
requirement was still at issue and had been since he submitted his application
in 2010 and completed the questionnaire in 2012.
V.
Analysis
[26]
This case is not similar to that of Bermudez
v Canada (Minister of Citizenship and Immigration), 2015 FC 639, in which I
suggested at paragraph 28 that CBSA officials had been “lying
in the weeds” until the law was changed to facilitate cessation
applications. In that case, the applicant had not sought to obtain protection
from a third country, his trips to his homeland did not indicate any intention
to reacquire the protection of that country, and the Minister initiated the
cessation proceedings several years after learning about the return trips.
[27]
In this matter, the record indicates that the
Minister initiated the cessation application only after learning that for the Applicant
to have been granted U.S. citizenship he would have had to establish five years
of continuous residence in the United States. Having provided the Applicant
with an opportunity to submit information regarding his actions, and giving him
an extension of time in which to do so, the decision to file the cessation
application in February 2014 was not abusive.
[28]
I agree with the Respondent that the fact of
submitting an application for citizenship does not shield the Applicant from an
investigation into his refugee status, the predicate upon which he held permanent
residency in this country. It was the Applicant’s actions that resulted in the
RPD’s cessation decision: he alone chose to maintain residence and obtain
citizenship in the United States while concurrently seeking to maintain refugee
protection in Canada. What the Applicant describes as “a
race to strip him of his permanent residence status” could also be
described as a race on his part to obtain citizenship in Canada before he lost
that status on account of his actions.
[29]
Even if I were to agree that an abuse of process
had occurred and set the matter down for a hearing on the merits, the Applicant
could not obtain the remedy he seeks. The Applicant does not dispute that he is
no longer a permanent resident of Canada and, for that reason, is ineligible for
citizenship. What’s more, the inherent jurisdiction to issue an order nunc
pro tunc is limited to circumstances in which a litigant can demonstrate
prejudice by an act or delay of the court: Canada (Attorney General) v
Hislop, [2007] 1 S.C.R. 429; Canadian Imperial Bank of Commerce, v Green,
2015 SCC 60. The Court cannot override a statute and defeat the intent of
Parliament: Shukla v Canada (Minister of Citizenship and Immigration),
2012 FC 1461, at para 42.
[30]
In an analogous case, Magalong v Canada
(Minister of Citizenship and Immigration), 2014 FC 966, an order of mandamus
nunc pro tunc was denied because the applicant was statutorily
prohibited from taking the oath by reason of a subsequent conviction for an
indictable offense.
[31]
In the result, I am satisfied that the Court
should not exercise its discretion to hear the matter notwithstanding that it
is moot, and the motion for an order dismissing the application is granted. As
the Respondent has not requested costs, none will be awarded.
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