Date: 20020711
Docket: T-1505-01
Neutral citation: 2002 FCT 771
BETWEEN:
HELMUT OBERLANDER
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent.
REASONS FOR ORDER
KELEN J.:
[1] This is a motion for an Order to stay the continuation of an inquiry before the Adjudication Division of the Immigration and Refugee Board until such time as the applicant's application for judicial review is determined.
[2] The applicant was found by this Court, by decision of MacKay J. in the matter of Canada (M.C.I.) v. Oberlander, [2000] F.C.J. No.229, [2000] C.C.S. No. 4139 (F.C.T.D.) to have obtained his Canadian citizenship by false representation or by knowingly concealing material circumstances at an immigration interview when he came to Canada in 1954, placing him within the meaning of paragraph 18(1)(b) of the Citizenship Act, R.S.C. 1985, c.C-29. The 50-page decision is an extensive, detailed document, reflecting the 16-day hearing of the matter.
[3] The circumstances specifically related to the applicant's service as a translator in the Einsatzkommando 10a, one of a number of groups that operated as mobile killing units for Nazi Germany in World War II, estimated to have participated in the execution of more than two million people, mostly civilians. This unit and the applicant's involvement with it were set out by MacKay J. as follows, in part:
¶ ¶ 189 The respondent, Helmut Oberlander, was born at Halbstadt (a.k.a. Molochansk), Ukraine, on February 15, 1924. He and his family were Volksdeutsch whose forbears settled at Halbstadt some 250 years ago.
¶ ¶ 190 In 1941, at 17 years of age, he had completed secondary school and he was fluent in German and Russian. In September or the beginning of October when German troops arrived at Halbstadt, he and his family were freed from a holding camp where they had been detained by Russians. He was later directed to assist in registration of Volksdeutsch in the area and to assist in repairing buildings and roads in the town.
¶ ¶ 191 In October 1941, or as Mr. Oberlander states in February 1942, he was ordered by local authorities to report to German occupying forces to serve as an interpreter. He did so, he says, not voluntarily by free choice, but in fear of harm if he refused.
¶ ¶ 192 He was assigned to Einsatzkommando 10a ("Ek 10a"), sometimes also known as Sonderkommando 10a, a German police unit of the Sicherheitspolizei (Sipo) and Sicherheitsdienst (SD). Both those organizations were security police forces of the Schutzstaffell (SS), which directed their operations from Berlin. The kommando unit included some members from other German police forces and a number of auxiliary personnel, including interpreters, drivers, and guards, from among Volksdeutsch or Russian prisoners of war.
¶ ¶ 193 Ek 10a was one of the squads of Einsatzgruppe D ("EG D"), which in turn was one of four Einsatzgruppen, designated A, B, C and D. These were special police task forces operating behind the German army's front line in the eastern occupied territories in the years 1941-1944, to further the objectives of Nazi Germany. Among their roles they operated as mobile killing units and it is estimated that the Einsatzgruppen and the Security Police were responsible for the execution of more than two million people, mostly civilians, primarily Jews and communists, and also Gypsies, handicapped and others considered unacceptable for Nazi Germany's interests [...]
[...]
¶ ¶ 197 There is no evidence that the respondent participated in any of the atrocities committed against civilians by Ek 10a. His testimony that he did not know the name of the unit until 1970 is not credible, i.e., it is not worthy of belief, nor is his claim that he only came to know of Ek 10a action against Jews, that is, their "resettlement", which he learned meant execution, when he was at Krasnodar and Novorossiysk in the fall of 1942.
[4] MacKay J. then summarized the process by which the applicant came to Canada, and made his decision regarding the applicant's conduct in that process, as follows, in part:
¶ ¶ 210 I find no visa would have issued unless a security officer had indicated, following his interview with Mr. Oberlander that he had "passed stage B", i.e. that he was cleared for security purposes. I find, on the balance of probabilities that clearance would only have issued if Mr. Oberlander misrepresented or did not disclose his wartime experience with Ek 10a. I find, on the balance of probabilities, that he falsely represented his background or knowingly concealed material circumstances when interviewed by a security officer. Thus, I find that thereafter he was admitted to Canada for permanent residence on the basis of the visa issued at Karlsruhe, and that admission was gained by false representation or knowingly concealing material circumstances.
[5] MacKay J. then concluded as follows:
Conclusion
¶ ¶ 211 This Court finds, on the balance of probabilities, weighing the evidence carefully, that the respondent Helmut Oberlander, was admitted to Canada for permanent residence in 1954 on the basis of a visa obtained by reason of false
representation or by knowingly concealing material circumstances. Subsequently he was granted citizenship in 1960.
¶ ¶ 212 I find that Mr. Oberlander was not lawfully admitted to Canada for permanent residence and thus he was not landed and did not thereafter acquire Canadian domicile, all pursuant to the Immigration Act as it applied when he came to Canada. Subsequently he obtained citizenship in 1960 when he represented, falsely, that he had acquired Canadian domicile. Thus he obtained Canadian citizenship by false representation.
¶ ¶ 213 In the alternative, if he were considered as lawfully admitted to Canada for permanent residence I find that was by reason of false representation or by knowingly concealing material circumstances. Because of that admission, he subsequently obtained citizenship. Pursuant to s-s. 10(2) of the Citizenship Act he is deemed to have obtained Canadian citizenship by false representation or by knowingly concealing material circumstances.
¶ ¶ 214 In the result, I find that the respondent, Helmut Oberlander, obtained citizenship in Canada by false representation or by knowingly concealing material circumstances within the meaning of s-s. 18(1) of the Citizenship Act. A decision to that effect is now issued.
[6] Subsequent to the decision by MacKay J., the Governor-in-Council, by Order-in-Council P.C. 2001-1227, dated July 12, 2001, revoked the Canadian citizenship of the applicant. The applicant is currently seeking judicial review of that decision.
[7] On August 27, 2001 a report under section 27 of the Immigration Act, R.S.C. 1985, c.F-7 was issued alleging that Mr. Oberlander is a person described in section 27(2)(i) of the Act, a person who ceased to be a Canadian citizen. A direction for inquiry was issued the same day and the inquiry has commenced before the Adjudication Division of the Immigration and Refugee Board.
[8] The present motion seeks a stay of the inquiry into the immigration status of the applicant pending the resolution of his application for judicial review of the Order-in-Council revoking his citizenship.
RELEVANT STATUTE
[9] The relevant sections of the Citizenship Act providing the grounds for the Order-in-Council, are as follows:
Order in cases of fraud
10. (1) Subject to section 18 but notwithstanding any other section of this Act, 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,
(a) the person ceases to be a citizen, or
(b) the renunciation of citizenship by the person shall be deemed to have had no effect, as of such date as may be fixed by order of the Governor in Council with respect thereto.
Presumption
(2) A person shall be deemed to have obtained citizenship by false representation or fraud or by knowingly concealing material circumstances if the person was lawfully admitted to Canada for permanent residence by false representation or fraud or by knowingly concealing material circumstances and, because of that admission, the person subsequently obtained citizenship.
Décret en cas de fraude
10. (1) Sous réserve du seul article 18, le gouverneur en conseil peut, lorsqu'il est convaincu, sur rapport du ministre, que l'acquisition, la conservation ou la répudiation de la citoyenneté, ou la réintégration dans celle-ci, est intervenue sous le régime de la présente loi par fraude ou au moyen d'une fausse déclaration ou de la dissimulation intentionnelle de faits essentiels, prendre un décret aux termes duquel l'intéressé, àcompter de la date qui y est fixée :
a) soit perd sa citoyenneté;
b) soit est réputé ne pas avoir répudié sa citoyenneté.
Présomption
(2) Est réputéée avoir acquis la citoyenneté par fraude, fausse déclaration ou dissimulation intentionnelle de faits essentiels la personne qui l'a acquise à raison d'une admission légale au Canada à titre de résident permanent obtenue par l'un de ces trois moyens.
ANALYSIS
[10] The test for a stay has been clearly established by this Court, specifically in the Toth v. M.E.I. (1988), 86 N.R. 302 (F.C.A.) and in related Federal Court jurisprudence. That three-part test can be summarized as follows:
1. Serious issue for trial;
2. Irreparable harm; and
3. Balance of convenience.
The applicant must meet each part of the test to be granted a stay.
Serious Issue to be Tried
[11] I am not persuaded that Mr. Oberlander's application for judicial review of the Order-in-Council raises a serious issue. Mr. Oberlander has advanced four arguments in the application for judicial review:
1. The Governor-in-Council erred in the exercise of its discretion;
2. The Governor-in-Council erred in failing to provide reasons for its decision;
3. Mr. Oberelander is entitled to fairness which was denied by the Governor-in-Council; and,
4. The Order-in-Council is unreasonable.
[12] With respect to the discretion argument under section 10 of the Citizenship Act, the Order-in-Council is within the scope of section 10 according to both the English and French versions. Section 10 specifically contemplates revocation of citizenship where a person has obtained citizenship by false representation or by knowingly concealing material circumstances. This is applicable to Mr. Oberlander. Whether the Governor-in-Council revoked the citizenship on a discretionary basis under the French version or on a mandatory basis under the English version need not be known for the Order-in-Council to be legal and valid. Accordingly, I am not persuaded that this is a serious issue.
[13] With respect to the duty to provide reasons, Mr. Oberlander relies upon Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. In Baker, the Supreme Court of Canada held that the file record can be reviewed to determine the reasons for the decision. In this case, the reasons for the decision are obviously based upon the decision of the Federal Court which, after an extensive hearing, provided 50 pages of reasons and concluded that Mr. Oberlander obtained citizenship in 1960 by reason of false representations or by knowingly concealing material circumstances. I find that the applicant's argument on this basis is frivolous.
[14] Counsel for Mr. Oberlander conceded at the hearing that the first two arguments are the stronger arguments in the application for judicial review of the Order-in-Council. I am not convinced that the last two arguments, whether Mr. Oberlander was accorded fairness and whether the decision is unreasonable, raise serious issues. There are no material facts alleged which support a serious argument that Mr. Oberlander was not accorded fairness; or that the Order-in-Council revoking his citizenship (for the reasons contemplated in section 10 of the Citizenship Act) is unreasonable.
[15] Accordingly, it is my conclusion that the application for judicial review of the Order-in-Council does not raise serious issues. However, for the reasons which follow it is not necessary to make this decision because I am not satisfied that Mr. Oberlander will suffer irreparable harm.
Irreparable Harm
[16] Mr. Oberlander seeks a stay of the immigration inquiry under section 27 of the Immigration Act. Mr. Oberlander does not seek judicial review of the inquiry or allege that the inquiry is not legal or proper. The inquiry may or may not result in a departure order against Mr. Oberlander. According to the respondent, there is an arguable case raised by Mr. Oberlander with respect to "domicile" under section 123 of the Immigration Act, which could prevent the issuance of a deportation order. (While the respondent concedes that this raises an arguable case, I note that Mr. Justice MacKay in Canada (Minister of Citizenship and Immigration) v. Oberlander, supra. specifically held (at paragraph 212) because Mr. Oberlander was not lawfully admitted to Canada for permanent residence, he did not thereafter acquire Canadian domicile pursuant to the Immigration Act as it applied when he came to Canada.)
[17] The respondent submits that the application for the stay based on the application for judicial review of the Order-in-Council, a completely separate proceeding, is an attempt by Mr. Oberlander to circumvent the proper working of the Immigration Act. If no deportation order is issued against Mr. Oberlander, then no stay will be necessary. If a deportation order is issued, then Mr. Oberlander has the legal right to seek leave for judicial review of the deportation order. At this point, the application for a stay is premature.
[18] Accordingly, it is speculative to say that a deportation order will be issued. There is no clear evidence that Mr. Oberlander will be deported. Therefore, there is no clear evidence that Mr. Oberlander will suffer irreparable harm if the inquiry continues to completition.
[19] In the alternative, the natural consequences of deportation, such as dislocation and separation from family, have been found by this Court not to meet the requirements of the irreparable harm. Melo v. Canada (MCI), [2000] F.C.J. No. 403, (F.C.T.D.) per Pelletier J. (as he then was) decided that "irreparable harm" is:
Some prejudice beyond that which is inherent in the notion of deportation itself. To be deported is to lose your job, to be separated from familiar places and people. It is accompanied by enforced separation and heartbreak.
[20] The irreparable harm that the applicant submits that will result if the stay is not issued can be summarized as:
- the effect the inquiry will have on his elderly wife;
- 2. the effect on his mentally ill daughter;
3. the effect on the rest of his family, including his other daughter and grandchildren; and,
4. the resulting upheaval to his own life.
None of these consequences fall outside the inherent consequences of deportation, and therefore do not constitute irreparable harm.
[21] The cases cited by Mr. Oberlander for irreparable harm deal with cases where young children will suffer serious hardship or difficulty or where there is a serious likelihood of jeopardy to the applicant's life or safety. Those circumstances do not exist in this case. If he were deported, Mr. Oberlander can continue to instruct counsel from abroad to pursue the application for judicial review of the Order-in-Council. If he wins, he can return to Canada as a Canadian citizen. Until then, Mr. Oberlander's wife, and dependant daughter, may join Mr. Oberlander abroad or may stay in Canada and visit Mr. Oberlander. There is no clear evidence that Mr. Oberlander will suffer some prejudice
beyond that which is inherent in the notion of deportation itself. If the stress of dislocation were grounds for staying a deportation order, few people would be deported. Being deported means you have to leave familiar places and people. Deportation is naturally accompanied by "enforced separation and heartbreak", as Justice Pelletier eloquently held in Melo, supra. The evidence is that the ongoing litigation has caused serious stress to Mr. Oberlander, his wife and his mentally ill daughter. Stress is an inherent consequence of litigation of this nature, as is stress an inherent in deportation proceedings. Such stress does not constitute irreparable harm.
Balance of Convenience
[22] As the applicant has failed to meet the second branch of the Toth test, there is no need to consider in any detail the third branch. Clearly, in the circumstances, the balance favours the obligation of the government to act on its duty to review the status of individuals whose citizenship has been revoked. Whether Mr. Oberlander ought be required to leave Canada is properly the decision of those delegated the authority under the legislation enacted by our elected government. The Court will not intervene to delay that statutory process where the essential elements for a stay of proceedings are not established.
CONCLUSION
[23] In view of the foregoing, this application for a stay is dismissed.
(signed) Michael A. Kelen _________________________
JUDGE
OTTAWA, ONTARIO
JULY 11, 2002
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1505-01
STYLE OF CAUSE: HELMUT OBERLANDER
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MONDAY, JUNE 3, 2002
REASONS FOR ORDER BY: THE HONOURABLE MR. JUSTICE KELEN
DATED: THURSDAY, JULY 11, 2002
APPEARANCES BY: Ms. Barbara Jackman
Mr. Eric Hafemann
For the Applicant
Mr. Donald MacIntosh
Mr. John Loncar
For the Respondent
SOLICITORS OF RECORD: JACKMAN, WALDMAN & ASSOCIATES
281 Eglinton Avenue East
Toronto, Ontario M4P 1L3
For the Applicant
Eric Hafemann
Barrister and Solicitor
500 Dutton Drive
Waterloo, Ontario N2L 4C6
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020711
Docket: T-1505-01
BETWEEN:
HELMUT OBERLANDER
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
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