Date: 20130320
Docket:
T-1394-12
Citation: 2013
FC 271
Ottawa, Ontario,
March 20, 2013
PRESENT: The
Honourable Madam Justice Strickland
BETWEEN:
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KRZYSZTOF POLNIAK
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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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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an appeal by Krzysztof Polniak (Applicant) of the decision of a citizenship
judge denying the Applicant’s application for citizenship. The denial was
based on subsection 22(1)(a)(i) of the Citizenship Act which prohibits a
grant of citizenship while an applicant is under a probation order. The appeal
is brought pursuant to subsection 14(5) of Citizenship Act, RSC 1985 c
C-29, and in accordance with section 18.1 of the Federal Courts Act, RSC
1985 c F-7 and Rule 300(c) of the Federal Courts Rules, SOR/98-106.
Background
[2]
On
May 29, 2009 the Applicant applied, pursuant to subsection 5(1) of the Citizenship
Act, for Canadian citizenship. On November 29, 2010, the Applicant was
charged with assault. On January 6, 2012, he was granted a conditional
discharge and was made the subject of an eighteen month probation order. On
May 16, 2012 he appeared before Citizenship Judge R. Brum Bozzi (the Citizenship
Judge). During that hearing he advised the Citizenship Judge that he was under
a probation order and asked the Citizenship Judge to postpone the rendering of his
decision for two to three months by which time it was anticipated that the
probation order would be lifted. The Citizenship Judge declined to delay his
decision which was rendered on May 18, 2012 (the Decision).
Decision Under
Review
[3]
The
Citizenship Judge found that when the Applicant appeared before him on May 16,
2012 the Applicant complied with all of the requirements of the Citizenship
Act with one exception, subsection 22(1)(a). In that regard, the
information on the Applicant’s file indicated that, effective January 6, 2012,
the Applicant was sentenced to 18 months of probation for offences that took place
in November 2010. Therefore, he did not comply with subsection 22(1)(a) of the
Citizenship Act which states that a person shall not be granted
citizenship under subsection 5(1) while the person is under a probation order.
Accordingly, the Applicant’s application was denied.
[4]
Pursuant
to subsection 15(1) of the Citizenship Act, the Citizenship Judge then
considered whether or not to recommend an exercise of the Minister’s discretion
under subsections 5(3) and 5(4) of the Citizenship Act to waive, on
compassionate grounds, language or knowledge requirements, or, to grant
citizenship to alleviate special and unusual hardship. He found that there was
no evidence of special circumstances presented to him at the hearing that would
justify the making of such a recommendation.
Positions of the
Parties
[5]
The
position of the Applicant is that had the Citizenship Judge delayed rendering
the Decision until the probation order was lifted, as requested by the
Applicant, then citizenship would have been granted. He seeks to have the
Decision set aside and the matter referred back for reconsideration based on
the new circumstance, being that the probation order was lifted two and a half
months after the Decision was rendered.
[6]
The
position of the Respondent is that because the Applicant was subject to a
probation order when he appeared for his citizenship hearing he falls squarely
within the subsection 22(1)(a)(i) prohibition and, because subsection
22(1)(a)(i) is applicable, there is an implied exception to the general
discretion otherwise conferred by subsection 5(4). Further, that pursuant to
subsection 14(1) of the Citizenship Act, the Citizenship Judge was
required to make his decision within sixty days of the application being
referred to him and had no discretion to delay his decision as requested by the
Applicant.
Issue
[7]
I
would phrase the issue in this appeal as being whether the Citizenship Judge’s
decision was reasonable.
Standard of
Review
[8]
The
Supreme Court of Canada has held that a standard of review analysis need not be
conducted in every instance. Instead, where the standard of review applicable
to a particular question before the court is well-settled by past
jurisprudence, the reviewing court may adopt that standard of review. Only
where this search proves fruitless must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis (Dunsmuir
v New Brunswick, 2008 SCC 9 [Dunsmuir]).
[9]
The
matter before this Court is whether the Applicant was properly denied, pursuant
to subsection 22(1)(a)(i) of the Citizenship Act, a grant of
citizenship. As this is a question of mixed fact and law the Decision is
reviewable on the standard of reasonableness. See Canada (Minister of
Citizenship and Immigration) v Diallo, 2012 FC 1537 at para 13 “the
applicable standard of review for decisions of citizenship judges regarding
questions of mixed fact and law, such as the question of whether an applicant
has met the requirements of the Act, is reasonableness.”
[10]
Reasonableness
is concerned with the existence of justification, transparency and
intelligibility within the decision making process. It is also concerned with
whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and the law (Dunsmuir,
above, at paras 45, 47-48; Canada (Minister of Citizenship and Immigration)
v Khosa, 2009 SCC 12 at paras 59, 62)
Analysis
Subsection
22(1)
[11]
The
fact that the Applicant was the subject of a probation order when he appeared
before the Citizenship Judge on May 16, 2012 is not at issue. The Applicant
advised the Citizenship Judge of this and, in his written submissions to this
Court, stated that the Citizenship Judge had stressed to him that because of
this the Applicant could not obtain Canadian citizenship. The Applicant’s
submissions also state that he asked the Citizenship Judge to postpone his
decision for two to three months as the Applicant was in the process of having
the probation order lifted. He left the hearing with the impression that his
plea for a delayed decision would be granted but on May 25th
received the Decision denying his application.
[12]
Subsection
22(1)(a)(i) reads as follows:
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22.
(1) Despite anything in this Act, a person shall not be granted citizenship
under subsection 5(1), (2) or (4) or 11(1) or take the oath of citizenship
(a)
while the person is, pursuant to any enactment in force in Canada,
(i)
under a probation order,
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22. (1) Malgré les autres
dispositions de la présente loi, nul ne peut recevoir la citoyenneté au titre
des paragraphes 5(1), (2) ou (4) ou 11(1) ni prêter le serment de citoyenneté
:
a) pendant la période où, en
application d’une disposition législative en vigueur au Canada :
(i) il est sous le coup d’une
ordonnance de probation,
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[13]
I
agree with the Respondent that the Applicant fell squarely within that
provision which was determinative of his application. Indeed, at the hearing
before this Court the Applicant acknowledged that it was the timing of the
rendering of the Decision with which he takes issue and that the Decision
itself was correct and reasonable in the context of subsection 22(1)(a)(i).
[14]
Given
the facts in this case, the Citizenship Judge made no error in his application
of the facts to the law (Al-Darawish v Canada (Minister of Citizenship and Immigration),
2011 FC 984 at paras 20-22, 26).
Subsection 5(4)
[15]
In
the Decision the Citizenship Judge stated that there was no evidence before him
at the hearing that would justify the making of a subsection 5(4) recommendation.
[16]
The
Respondent submits that, in any event, the Citizenship Judge was precluded from
exercising his discretion under subsection 5(4) of the Citizenship Act
to recommend the granting of citizenship to alleviate special and unusual
hardship because the subsection 22(1)(a)(i) prohibition against granting
citizenship to a person under a probation order is an implied exception to the
general discretion conferred on the Governor in Council by subsection 5(4) to
direct the Minister to grant citizenship (Frankowski v Canada (Citizenship
and Immigration), 192
DLR (4th) 187 at
paras 15-16; Al-Darawish, above, at paras 24-25).
[17]
The
Applicant makes no specific submission on this point. However, his appeal of
the Decision centers around his request that the Citizenship Judge delay the
issue of his decision until the probation order had been lifted. In other
words, the exercise of any discretion that the Citizenship Judge may have had
in that regard given the Applicant’s special circumstances.
[18]
The
Respondent submits that Al-Darawish at paras 24-25 and Frankowski
at paras 15-16, both above, resolve the issue of whether the
“notwithstanding any other provisions of this Act” reference in subsection 5(4)
prevails over a similar notwithstanding reference in the prohibitions at
subsection 22(1) of the Citizenship Act. The Respondent refers to
Justice Rothstein’s finding in Frankowski as follows:
[15] Applying the implied exception technique
to resolve the apparent conflict between subsection 5(4) and paragraph 22(2)(a)
and considering subsection 5(4) the more general and paragraph 22(2)(a) the
more specific provision, I conclude that the prohibition against the grant of
citizenship to a person within three years of conviction for an offence
referred to in paragraph 22(2)(a) is an implied exception to the general
discretion conferred on the Governor in Council in subsection 5(4) to direct
the Minister to grant citizenship.
[16] In the result, I think the learned
Citizenship Court Judge was correct in finding that because paragraph
22(2)(a) was applicable, this was not a case for the exercise of discretion
under subsection 5(4). As there was no discretion to be exercised by the
Governor in Council under subsection 5(4) in this case, there was no obligation
on the Judge under subsection 15(1) to do more than he did.
[19]
In
my view this reasoning is equally applicable in this case. Thus, even if the
Citizenship Judge had recommended that the Minister exercise his discretion
under subsection 5(4) to grant citizenship in these circumstances to
alleviate special and unusual hardship, because subsection 22(1)(a)
applies so does the implied exception. Therefore, the Minister had no
discretion to do so in this case.
Section
14
[20]
Subsection 14(1)(a) of the Citizenship Act states that an application for a grant of
citizenship under subsection 5(1) or (5) shall be considered by a citizenship
judge who, within sixty days of the day the application was referred to that
judge, determine whether or not the person who made the application meets the
requirements of the Citizenship Act and the regulations with respect to
the application.
[21]
When
the Applicant appeared before this Court he asserted, the first time, that the
Citizenship Judge had verbally represented to him that he would delay the rendering
of his decision while the Applicant sought to have the probation ordered
lifted. Further, that the Citizenship Judge asked the Applicant to keep him
apprised of the status of that effort and that the Applicant wrote three
letters to the Citizenship Judge in that regard. This assertion does not
appear in the Applicant’s Memorandum of Fact and Law or supporting affidavit.
[22]
The
Applicant submits that this representation, and the failure to honour it, gives
rise to a question of procedural fairness. He submits that it took three years
for the Minister to consider his application and that the Citizenship Judge’s
failure to honour his representation to the Applicant to delay his decision for
a mere three months to accommodate the lifting of the probation order is
unfair, particularly as he had complied with all of the other citizenship
requirements as acknowledged by the Citizenship Judge.
[23]
The
Respondent takes the view that there is no affidavit or other evidence to
support the Applicant’s claim and, in any event, any breach of procedural
fairness is immaterial because Citizenship Act required the Decision to
be rendered within the 60 day time frame stipulated in subsection 14(1).
[24]
In
my view, the issue of a lack of procedural fairness does not arise in this
matter given that there is no evidence that the Citizenship Judge did represent
that he would delay the rendering of his decision; the application of the
subsection 22(1)(a) implied exception to subsection 5(4); and, the subsection
14(1) requirement that the Citizenship Judge render a decision within sixty
days. Even if the Citizenship Judge did represent to the Applicant that he
would delay the rendering of his decision pending the lifting of the probation
order and even if subsection 14(1) were interpreted such that the sixty days
period would start to run from the date of the citizenship hearing on
May 16, 2012, then the outcome would have been the same as the
probation order was not lifted until August 2, 2012 being outside the
permissible sixty day period.
[25]
In
conclusion, this case there was no erroneous finding of fact, reviewable error
or breach of procedural fairness. At the time of his hearing, the Applicant
was subject to a probation order. The Decision correctly applied the law to the
facts and was justified, transparent and intelligible and the outcome was
defensible based on the law and the facts.
[26]
The
Applicant represented himself before this Court and did so in a straight
forward and efficient manner. Although the relief he seeks is not available to
him, I make no order as to costs in these circumstances.
[27]
The
original style of cause in this action identified the Respondent as
“Citizenship Judge (Commission)”. That has been revised in this judgment to
correctly describe the Respondent as the Minister of Citizenship and
Immigration.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed. There is no order as to costs.
“Cecily Y. Strickland”
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