Date: 20040115
Docket: T-855-03
Citation: 2004 FC 52
Ottawa, Ontario, January 15th, 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
RANJIT SINGH SAHOTA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
MACTAVISH J.
[1] Ranjit Singh Sahota's application for citizenship was not approved because at the time that he appeared before a citizenship judge, Mr. Sahota was subject to a probation order. Mr. Sahota appeals this decision, submitting that the way in which the citizenship judge dealt with his application was manifestly unfair.
Facts
[2] Mr. Sahota was born in India, and became a permanent resident of Canada in October of 1993. On February 5, 2001, Mr. Sahota applied for Canadian citizenship. It does not appear that there is any dispute that, at the time of his citizenship application, Mr. Sahota met the residency requirements of the Citizenship Act. He was, however, facing a charge of Fraud under $5,000, contrary to section 380 (1) (b) of the Criminal Code. After filing his citizenship application, Mr. Sahota was charged with a number of other criminal offences, including theft, pointing a firearm, threatening death, assault and assaulting a peace officer.
[2] In May of 2001, Mr. Sahota was found guilty of theft and fraud. Mr. Sahota received a conditional discharge and 12 months probation on each count.
[3] In August of 2001, Mr. Sahota pled guilty to charges of pointing a firearm, threatening death, assault and assaulting a peace officer. For these offenses, Mr. Sahota received a sentence of four months in jail, and a further 12 months probation.
[4] In May of 2002, Mr. Sahota completed his probation for the fraud and theft charges. Mr. Sahota appealed his sentence on the pointing a firearm, threatening death, assault and assaulting a peace officer convictions. His sentence appeal was allowed, and on May 16, 2002 Mr. Sahota's sentence was varied to a conditional sentence of 12 months, with an additional 12 months of probation, to run from the date the Appeal was heard.
[5] On June 11, 2002, Mr. Sahota was notified that a hearing regarding his citizenship application had been scheduled for July 17, 2002. At that point, Mr. Sahota was on probation for the pointing a firearm, threatening death, assault and assaulting a peace officer charges. Mr. Sahota wrote to the Citizenship Court on July 5, 2002, advising of his outstanding probation order. He indicated that he was aware that he could not swear an oath of citizenship while under probation, and sought clarification as to whether he could take the citizenship test before the expiration of his probationary period. Mr. Sahota advised the Citizenship Court that he would complete his probation on May 16, 2003, and asked if he could wait until after that date to appear for the test.
[6] Mr. Sahota did not received a response to his inquiry, and it appears that his citizenship hearing did not take place on July 5, 2002, as originally scheduled. Having heard nothing from the Citizenship Court, Mr. Sahota assumed that his request would be honoured. As a consequence, he was surprised to receive notification that a citizenship hearing had been scheduled for January 22, 2003.
[7] Mr. Sahota then retained counsel. On January 22, 2003, Mr. Sahota and his counsel, Gary Segal, appeared before a citizenship judge. The reasons of the citizenship judge of the same date indicate that Mr. Segal requested that the matter be adjourned to some time after May of 2003, when Mr. Sahota would complete his probation, and that this request was refused. At this point, Mr. Segal reportedly advised the citizenship judge that there was no point administering the citizenship test to Mr. Sahota. The reasons further indicate that Mr. Sahota was informed that his application for citizenship would not be approved, because he was on probation.
[8] Messrs. Sahota and Segal's description of what occurred before the citizenship judge is quite different. According to Mr. Segal's affidavit, the hearing commenced with Mr. Segal's request for an adjournment. Mr. Segal deposes that the citizenship judge advised him that the matter could not proceed in any event, as there was a request on file from the Citizenship Court Registry Office seeking further documentation from Mr. Sahota. A copy of the request for information was produced, which had evidently been sent to Mr. Sahota in August of 2001, but had not been received by him. According to Mr. Segal, the citizenship judge told Mr. Sahota to provide the requested information to the Citizenship Court as quickly as possible. It was agreed that Mr. Sahota would have 30 days to file the material with the Court. The citizenship judge confirmed that the matter would not be proceeding at that time, and Mr. Sahota and his counsel left the room. Mr. Segal deposes that the entire audience lasted between five and seven minutes, including the time spent by the citizenship judge retrieving the request for information.
[9] It is common ground that at no time was Mr. Sahota questioned about his application, nor was he asked about his knowledge of Canada or his knowledge of either official language.
[10] Mr. Segal deposes that he filed the additional information requested with the Court on February 20, 2003. At this point, he says that he anticipated that a new Notice of Hearing would be issued. Instead, by letter dated March 26, 2003, Mr. Sahota was notified that his request for citizenship had not been approved. The letter makes reference to the hearing of January 22, and indicates that, at that time, the citizenship judge had reserved his decision. The citizenship judge's letter also refers to Section 22 (1)(a)(i) of the Citizenship Act, which provides that no one shall be granted citizenship, or administered the oath of citizenship, while that person is subject to a probation order.
Issues
[11] Although Mr. Sahota and the Minister characterize the issues on this appeal somewhat differently, the central question is whether Mr. Sahota was treated in a procedurally unfair manner in relation to his application for citizenship, in light what occurred on January 22, 2003.
Position of the Applicant
[12] Counsel for Mr. Sahota agrees that Mr. Sahota was subject to a probation order on January 22, 2003, and was thus not entitled to be granted Canadian citizenship. As a result, it would have been open to the citizenship judge to simply deny Mr. Sahota's request for an adjournment, and dismiss his application. Instead, counsel says, what transpired in this case "is an example of bureaucratic bungling run wild", the result of which was that Mr. Sahota's application for citizenship was dealt with in a procedurally unfair fashion.
[13] There is a fundamental disagreement between the reasons of the citizenship judge and the affidavit evidence filed by Mr. Sahota as to what occurred on January 22, 2003. Counsel for Mr. Sahota submits that the version of events described in the affidavit evidence should be preferred, as the reasons of the citizenship judge were not given under oath. Mr. Segal's affidavit should be accorded particular weight, counsel says, as Mr. Segal, as a lawyer, is an officer of the Court. Counsel further notes that no attempt was made to cross-examine either Mr. Sahota or Mr. Segal on his affidavit.
[14] When faced with Mr. Sahota's request for an adjournment, counsel contends that the citizenship judge misled Mr. Sahota and his counsel as to what would happen next. Rather than address Mr. Sahota's request for an adjournment, the citizenship judge assured Mr. Sahota and his counsel that the matter would not be proceeding that day as the file was not complete. Mr. Sahota was then afforded 30 days to provide the missing information. Instead of waiting for the missing documents, and then holding a hearing, it appears from the record that the citizenship judge proceeded that same day to dismiss Mr. Sahota's application for citizenship. This method of proceeding, counsel says, was manifestly unjust, and accordingly the citizenship judge's decision should not be permitted to stand. Mr. Sahota asks that the decision of the citizenship judge be set aside, and a new hearing ordered.
Position of the Respondent
[15] Counsel for the Minister submits that whatever errors may have been made in this case, these errors had no effect on the ultimate result of Mr. Sahota's application for citizenship.
[16] According to counsel for the Minister, the citizenship judge was under no obligation to grant Mr. Sahota's adjournment request. Even if the citizenship judge had been prepared to adjourn the hearing, section 14 (1) of the Citizenship Act stipulates that once an application for citizenship has been referred to a citizenship judge, the judge must, within sixty days, determine whether the applicant meets the requirements of the Act. As a result, the matter would have had to have been brought back on within 60 days, at which point Mr. Sahota would still have been on probation, and the result would have been the same.
[17] Given that Mr. Sahota was statutorily barred from obtaining citizenship, the respondent submits that there was no need for the citizenship judge to question him regarding his application, to test his knowledge of Canada, or to evaluate his knowledge of Canada's official languages.
Analysis
[18] I am very troubled by the disagreement between the description of events contained in the reasons of the Citizenship judge, and what the affidavits of Mr. Sahota and Mr. Segal say transpired on January 22, 2003. In the circumstances of this case, however, I do not think it necessary to accept one version of events over the other.
[19] If I were to accept the version of events put forward by Mr. Sahota and Mr. Segal, it would certainly suggest that there were serious problems with the fairness of the process followed in this case. It does not necessarily follow, however, that the decision of the citizenship judge must automatically be set aside.
[20] A denial of procedural fairness will not cause a reviewing court to set a decision where the court is satisfied that the breach could not have affected the result.
[21] In this case, the Notice to the Minister of the Decision of the Citizenship Judge indicates that Mr. Sahota's citizenship application was referred to the citizenship judge on January 22, 2003. This is the same document that contains the citizenship judge's reasons for his decision. Given the very real concerns that exist with respect to the accuracy of the citizenship judge's description of what transpired on that day, counsel for Mr. Sahota says that no weight should be attributed to anything contained in the document.
[22] Quite apart from the reference to the date of referral contained in the Notice to the Minister of the Decision of the Citizenship Judge, however, it is clear from the description of events contained in the affidavits of Messrs. Sahota and Segal that by January 22, 2003, at the very latest, Mr. Sahota's application for citizenship had been referred to a citizenship judge for determination.
[23] Section 14 (1) of the Citizenship Act requires a citizenship judge to determine whether an applicant meets the requirements of the Act, and to make this determination within sixty days of the date on which an application for citizenship is referred to the citizenship. It is common ground that Mr. Sahota was statutorily ineligible for citizenship on January 22, 2003. Sixty days later, he was still on probation. Given the requirements of the statute, even if the citizenship judge had been prepared to exercise his discretion, and grant Mr. Sahota an adjournment of his citizenship hearing on January 22, 2003, the application would have had to be brought back on and disposed of within sixty days. As Mr. Sahota would still have been statutorily ineligible for citizenship, the citizenship judge would have had no option at that point but to dismiss the application.
[24] I am also not persuaded that any failure on the part of the citizenship judge to wait for the missing information requested on January 22, 2003 before making his decision to dismiss Mr. Sahota's citizenship application could have had any impact on the ultimate result. There was no additional information that Mr. Sahota or his counsel could have provided to the citizenship judge that could have changed the fact that there was a statutory bar to Mr. Sahota being granted citizenship.
[25] Similarly, the fact that the citizenship judge never questioned Mr. Sahota about his application, or tested him on his knowledge of Canada or his knowledge of Canada's official languages could not have affected the outcome of Mr. Sahota's citizenship application. The Citizenship judge was required by law to make the determination that he did, and dismiss Mr. Sahota's application for citizenship. Any failure on the part of the Citizenship judge to give Mr. Sahota a full and proper hearing cannot be said to have had an impact on the result.
Conclusion
[26] As a consequence, although the conflicting information before the Court raises concerns with respect to the fairness of the process used to assess Mr. Sahota's citizenship application, in the final analysis, any deficiencies in the procedural fairness accorded to Mr. Sahota could not have had any effect on the result in his case. For these reasons this appeal is dismissed.
ORDER
THIS COURT ORDERS that this appeal be dismissed.
"Anne L. Mactavish"
J.F.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20040114
Docket: T-855-03
BETWEEN:
RANJIT SINGH SAHOTA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER and ORDER
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-855-03
STYLE OF CAUSE:
RANJIT SINGH SAHOTA v. MCI
PLACE OF HEARING: Toronto, Ontraio
DATE OF HEARING: January 12, 2004
ORDER AND REASONS FOR ORDER:
Mactavish J.
DATED: January 14, 2004
APPEARANCES:
SOLICITORS OF RECORD:
|
Sheldon M. Robins
Barrister & Solicitor
Toronto, Ontario
|
FOR THE APPLICANT
|
|
Department of Justice
Toronto, Ontario
|
FOR THE RESPONDENT
|
Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202. at p. 228 and Yassine v. Canada (Minister of Manpower and Immigration), (1994), 172 N.R. 308 (FCA).
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