Date:
20130301
Docket:
T-1288-12
Citation:
2013 FC 212
Ottawa, Ontario,
March 1, 2013
PRESENT: The
Honourable Mr. Justice Harrington
BETWEEN:
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MOHAMED RICHI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondents
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REASONS FOR
ORDER AND ORDER
IF ONLY
[1]
If
only the first citizenship judge had got it right. Mr. Richi would be a
Canadian citizen today. The mobility rights guaranteed by section 6 of our Canadian
Charter of Rights and Freedoms would have allowed him to come and go as he
pleases. As it is, by the time he came before the second citizenship judge, a
removal order had been issued against him for failing to maintain his permanent
resident status. That citizenship judge said that were it not for that fact,
she would have reported to the Minister that he had fulfilled all the
requirements of citizenship. However, the removal order prevented her from so
doing. This is the appeal of that decision.
[2]
Mr.
Richi, who was self-represented, but who acquitted himself very well, is
understandably very mystified and frustrated by the bureaucracy and red tape
that he has encountered. No doubt he will be even more upset when I tell him in
these reasons that I am part of the system and cannot help him.
THE FACTS
[3]
Mr.
Richi landed in Canada on September 19, 2003, and was granted permanent
resident status the same day. He applied for Canadian citizenship in June 2007.
In May 2010, a citizenship judge dismissed his application on the grounds that
he had failed to meet the residency requirement, which is at least three years
residence in Canada in the four years immediately prior to his application. The
decision was only delivered to him in August 2010.
[4]
He
appealed to this Court. To his surprise, counsel for the Minister informed him
that she intended to file a motion to set aside the decision of the citizenship
judge, which was “rendered without proper consideration of the materials filed
before him”, and have the matter referred to another citizenship judge.
Accordingly, a consent order was entered in docket number T-1519-10 in December
2010.
[5]
Mr.
Richi came up before another citizenship judge in November 2011. That judge
determined that he did not meet the requirements of the Act only because he was
then under a removal order. Indeed, an immigration official had issued a
departure order against him pursuant to subsection 41(b) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], for failing to comply
with the residency requirements applicable to permanent residents, which
require a physical presence in Canada for at least two of the previous five
years.
THE LAW
[6]
Section
5 of the Citizenship Act, RSC, 1985, c C-29, provides that the Minister
is to grant citizenship to applicants who are at least 18 years of age, who are
permanent residents, who have accumulated at least three years of residence in
Canada in the four years immediately prior to the application, who have an
adequate knowledge of one of our official languages, and who have an adequate
knowledge of Canada and of the responsibilities and privileges of citizenship.
Mr. Richi met all those requirements.
[7]
However,
subsection 5(1)(f) of the Act goes on to say:
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5. (1) The
Minister shall grant citizenship to any person who
[…]
(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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5. (1) Le
ministre attribue la citoyenneté à toute personne qui, à la fois :
…
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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[8]
Mr.
Richi is contesting the departure order, which is a removal order, but
understands that the matter will not come up for another year. His position is
that he was working for a Canadian company abroad. Under IRPA, days of
employment abroad for a Canadian company count as days of Canadian residence.
He was working for Cansult Ltd. The officer’s notes indicate that that was
indeed a Canadian company registered in Ontario, but that it then became established
in the United Arab Emirates and was bought by an American company. I had to
point out to Mr. Richi that the merits of the removal order were not before the
citizenship judge, and cannot be considered by me. Furthermore, the citizenship
judge was required to render her decision within 60 days. Although the
proceedings may be suspended under subsection 14(1.1) of the Act, such
interruption only applies to a permanent resident who is the subject of an
admissibility hearing (Hadaydoun v Canada (Minister of Citizenship and
Immigration), 2012 FC 995 at paras 27-28). Mr. Richi is not the subject of
such a hearing.
MR. RICHI’S CASE
[9]
Mr.
Richi submitted a constitutional question. I explained to him that Parliament
could pass any legislation it saw fit, no matter how unreasonable, subject only
to the legislative division of powers between Parliament and the provincial
legislatures, as set out in sections 91 and 92 of the Constitution Act, 1867,
30 & 31 Victoria, c 3 (UK), and the Charter. His concern is really with delays
and how the law has been interpreted, not with the constitutionality of the law
itself. Consequently, there is no constitutional question to answer.
[10]
Mr.
Richi’s second point is that his legitimate expectations were not met. This
concept relates to procedural fairness. It may well be that a decision-maker
gets it wrong. This has nothing to do with fairness. The Minister put it right
by consenting to Mr. Richi’s appeal. All that could be done was to send the
matter back to another citizenship judge for reconsideration. They are delays
inherent in the system. That is a fact of life. Although there have been
lengthy delays, such delays are not unusual. Mr. Richi’s expectations were
unrealistic.
[11]
His
third argument is based on his interpretation of subsection 5(1)(f) of the Citizenship
Act. In his view, the “and” therein is conjunctive. Since he was under a
removal order, but not the subject of a declaration by the Governor in Council
made pursuant to section 20 of the Act, the citizenship judge was wrong in
deciding that he had not met the requirements thereof.
DISCUSSION
[12]
Although
subsection 5(1)(f) could be read literally as proposed by Mr. Richi, such an
interpretation would be unreasonable. The Supreme Court of Canada has held many
times that Elmer Driedger said it all in his Construction of Statutes, 2nd
edition, 1983, at page 87:
Today there is only one principle or approach,
namely, the words of an Act are to be read in their entire context and in their
grammatical and ordinary sense harmoniously with the scheme of the Act, the
object of the Act, and the intention of Parliament.
See, for instance, the decision of
the Supreme Court in Bell ExpressVu v Rex, 2002 SCC 42, [2002] 2
SCR 559, at paragraphs 26 and following.
[13]
As
stated therein, where the text in question is found in an act which is part of
a larger statutory scheme, it should be interpreted so as to be in harmony,
coherent and consistent with the other statutes. In that sense, the residence
provisions of IRPA and the Citizenship Act should be considered
harmoniously.
[14]
In
my opinion, the “and” in the provision should be read in the disjunctive, or
should be read as subdividing subsection (f) into two separate parts. One may
become the subject of a removal order for all sorts of reasons which have
nothing to do with criminality, such as allegedly failing to maintain a
residency requirement, as in this case. However, section 20, which in turn
refers to section 19, applies when the Governor in Council declares that there
are reasonable grounds to believe that a person is a threat to Canada’s security or part of organized crime. It simply makes no sense to lump removal
orders and section 20 declarations together.
[15]
This
interpretation is borne out by section 11 of the Act which deals with
applications for resumption of citizenship. In that section, section 20
declarations and removal orders are distinct and addressed in subsections (b)
and (c), respectively.
[16]
There
are two recent cases that touch upon this point. In Canada (Minister
of Citizenship and Immigration) v El Bousserghini, 2012 FC 88, I mentioned
in passing that the existence of a removal order precluded the granting of
citizenship. However, Mr. Richi’s point of interpretation was not raised before
me.
[17]
Mr.
Justice De Montigny came to the same conclusion in Hadaydoun, above.
However, there is nothing in his reasons to indicate that Mr. Richi’s point was
raised before him.
[18]
Finally,
there is no reason to believe that Mr. Richi would not make a fine Canadian citizen.
ORDER
FOR
REASONS GIVEN;
THIS
COURT ORDERS that:
1.
The
appeal is dismissed.
2.
There
shall be no order as to costs.
“Sean Harrington”
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