Docket:
T-247-13
Citation: 2014 FC 156
Ottawa, Ontario, February 21,
2014
PRESENT: The Honourable Mr. Justice Scott
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BETWEEN:
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WASIM B.H. ALSAYEGH
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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
I.
Introduction
[1]
This is an application for judicial review
pursuant to section 18.1 of the Federal Courts Act, RSC 1985, c F-7 of a
decision rendered by a Citizenship Officer (the Officer), dated December 5, 2012,
terminating Mr. Wasim B.H. Alsayegh’s (Mr. Alsayegh) citizenship application on
the basis that a removal order was issued against him on December 4, 2012.
II.
Facts
[2]
Mr. Alsayegh is a stateless Palestinian who
became a permanent resident of Canada in December 2005. He completed his
university studies at McGill University and started his professional career in Canada. In July 2009, he submitted his citizenship application.
[3]
In March 2010, he left Canada for an internship with Google in the United Arab Emirates [UAE]. In December 2010, Mr.
Alsayegh completed and submitted a Residence Questionnaire to Citizenship and
Immigration Canada [CIC].
[4]
On October 5, 2012, Mr. Alsayegh attended a
citizenship hearing presided over by Renée Giroux (the Citizenship judge). The
Citizenship judge noted that Mr. Alsayegh met all his residency obligations
both under the Citizenship Act, RSC 1985, c C-29 [Citizenship Act
or the Act] and the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA] and informed him that he would receive notice to take
his citizenship oath prior to the end of the year.
[5]
Mr. Alsayegh returned to the UAE to continue his
internship. He was scheduled to take his citizenship oath on December 7, 2012.
[6]
On December 4, 2012, Mr. Alsayegh landed at Trudeau International Airport in Montreal. He was referred to secondary examination where a
Canada Border Services Agency Officer (CBSA Officer) examined his present and
old passports and concluded that Mr. Alsayegh did not meet the residency
obligations for the period extending between December 5, 2007 and December 4,
2012 for maintaining his Canadian permanent resident status.
[7]
Mr. Alsayegh told the CBSA Officer that he had
evidence in his possession which demonstrated that he had in fact accumulated
more than the 730 days of physical presence required by the IRPA.
However, the Officer refused to consider his documents.
[8]
The CBSA Officer asked Mr. Alsayegh to complete
a form entitled “Loss of permanent residency, Humanitarian and compassionate
considerations” but Mr. Alsayegh refused to do so fearing that it would amount
to an admission that he had lost his permanent resident status.
[9]
The CBSA Officer then issued a report pursuant
to subsection 44(1) of the IRPA and a removal order against Mr.
Alsayegh. The Officer also issued a “CIT ALERTE” to the Citizenship office in Montreal to inform them that a loss of residence had occurred in Mr. Alsayegh’s file and
that he was scheduled to take his oath of citizenship on December 7, 2012.
[10]
On December 13, 2012, Mr. Alsayegh received the
decision under review which terminated his citizenship application pursuant to
paragraph 5(1)(f) of the Citizenship Act on grounds that a
removal order had been issued against him on December 4, 2012.
[11]
On December 20, 2012, Mr. Alsayegh filed a
Notice of Appeal of the Removal Order to the Immigration and Refugee Board of Canada, Immigration Appeal Division. This appeal is still pending.
III.
Legislation
[12]
The applicable provisions of the Citizenship
Act and the IRPA, cited above, are reproduced in an appendix to this
decision.
IV.
Issues and standard of review
[13]
The following issues are raised in this
application for judicial review:
1) Did the Citizenship Officer err when he
terminated Mr. Alsayegh’s citizenship application?
2) Was the Citizenship Officer under a
duty to consider making a recommendation under subsection 5(4) of the
Citizenship Act?
[14]
The Court agrees with both parties that the
standard of review in this case should be reasonableness, as it involves the
application of the law to the facts before the Officer (see Dunsmuir v
New-Brunswick, 2008 SCC 9 at para 53 [Dunsmuir]). Accordingly, this
Court must verify whether the decision “falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (see Dunsmuir
at para 47).
V.
Positions of the parties
A.
Applicant’s position
Termination of Mr. Alsayegh’s citizenship application
[15]
Mr. Alsayegh submits that the Officer acted
beyond his authority when he terminated his application after receiving the
alert which incorrectly stated that he had lost his permanent resident status
(see Hadaydoun v Canada (Minister of Citizenship and Immigration), 2012
FC 995 [Hadaydoun] and Obi v Canada (Minister of Citizenship and
Immigration), 2011 FC 573 [Obi]). Mr. Alsayegh refers to sections 46
and 49 of the IRPA. Section 46 states that a permanent resident loses
his status when a removal order comes into force. Section 49 states that a
removal order comes into force after there has been a final decision rendered
on appeal, if an appeal has been made. Since Mr. Alsayegh has filed an appeal,
he argues that he has not lost his permanent resident status yet.
[16]
Mr. Alsayegh claims that the Officer exceeded
his jurisdiction because he was never empowered to approve or deny citizenship
applications on the merits and refers to CIC’s Operational Bulletin 031
(Bulletin 031) which states that refusal letters pursuant to subsection 5(1) of
the Citizenship Act should not be sent by officers, instead applicants
must be referred to a citizenship judge. He argues that his application was
refused pursuant to paragraph 5(1)(f) of the Citizenship Act by
an Officer and the decision contains no indication that his application was
referred to a citizenship judge as called for by Bulletin 031.
[17]
Mr. Alsayegh underlines the fact that the
Respondent has failed to file a supporting affidavit from the Officer and this
has an impact on the adequacy of his submissions.
[18]
Mr. Alsayegh acknowledges that the Minister
cannot grant citizenship to an applicant that is subject to a removal order
because of paragraph 5(1)(f) of the Citizenship Act. However he
submits that this restriction does not empower citizenship officers to
terminate an application. He asserts that section 5 of the Act should be
interpreted consistently with the rest of the statutory scheme and with the IRPA
and consequently argues that allowing citizenship officers to terminate such
applications when a removal order is issued, without first referring to a
citizenship judge, would allow CBSA to render decisions on citizenship
applications, a matter clearly outside their jurisdiction.
Recommendation under subsection 5(4) of the Citizenship Act
[19]
Mr. Alsayegh underlines that no consideration
was given to the special and unusual hardship that he would suffer and refers
to subsection 5(4) of the Act. He submits that it is a mandatory
requirement that the citizenship decision-maker evaluate whether such a
recommendation is warranted. He also claims that this section was held to apply
to all provisions of the Citizenship Act (see Frankowski v Canada (Minister of Citizenship and Immigration), (2000) 187 FTR 92) which do not
themselves contain the words “notwithstanding anything in this act”.
[20]
Mr. Alsayegh also relies on Bulletin 031 which
directs officers to first evaluate whether an applicant qualifies for
recommending a discretionary grant pursuant to subsection 5(4). He argues that
because the decision at issue was a final decision on his citizenship
application, due consideration should have been given as to whether a
discretionary grant of citizenship could be recommended (see Lee (Re),
(1997) 138 FTR 158).
[21]
Mr. Alsayegh submits that should he lose his
current employment in the UAE, he would suffer significant hardship because he
is stateless, of Christian faith, in a region that is predominantly Muslim, and
his wife is Syrian.
B. Respondent’s position
Termination of Mr. Alsayegh’s citizenship application
[22]
The Respondent submits that subsection 5(1) of
the Act requires that applicants fulfill their obligations imposed by
the IRPA. However, citizenship judges do not have the authority to make
determinations under that act. Therefore, whether a citizenship applicant has
fulfilled his obligations under the IRPA is evaluated by verifying that
the competent authorities have not terminated his permanent residence or issued
a removal order. The Respondent asserts that a situation could arise where an
applicant ceased to comply with the IRPA after a citizenship judge has
rendered a positive decision.
[23]
The Respondent submits that a violation of one
of the provisions of the IRPA, by an applicant, is sanctioned by a loss
of permanent residence or by a removal order and that subsection 5(1) of the Citizenship
Act does not in such situations allow the Minister to schedule the
applicant to take his or her oath. The Respondent also underlines that the
Minister retains a residual authority to refuse citizenship even after a citizenship
judge has issued a decision in the applicant’s favour (see Khalil v Canada (Secretary of State), [1999] 4 FC 661).
[24]
The Respondent argues that since Mr. Alsayegh is
under a removal order, the Minister is precluded from allowing him to take the
oath of citizenship and it is for that reason that the Officer terminated his
application. The Respondent alleges that the Officer’s decision was not taken
based on the email received from the CBSA officer indicating that the applicant
had lost his permanent residence, but rather on the removal order.
[25]
The Respondent acknowledges that the Citizenship
Act does not explicitly grant a citizenship officer the power to terminate
or close files. However, he claims that appropriate action had to be taken
since it was clear that Mr. Alsayegh could not take the oath of citizenship. In
this case, according to the Respondent, it was reasonable to close the file and
terminate the processing of Mr. Alsayegh’s application. The removal order
rendered against him benefits from a presumption of validity and the
possibility that it will be reversed is purely speculative.
[26]
The Respondent submits that the Officer was
entitled to rely on the existence of the removal order and need not consider
the merits of Mr. Alsayegh’s appeal. It was reasonable to terminate his
application, rather than leaving it active, on grounds of administrative
efficiency.
[27]
The Respondent dismisses Mr. Alsayegh’s argument
to the effect that the file should have been referred to a citizenship judge.
He claims that although a citizenship judge will initially evaluate whether an
applicant meets the requirements of subsection 5(1), it is the Minister who
remains ultimately responsible for conferring citizenship. The Respondent
submits that it was self-evident that Mr. Alsayegh no longer met the
requirements of subsection 5(1) and consequently, there was no valid reason for
the Minister to refer the question back to a citizenship judge.
[28]
The Respondent submits that since a Citizenship
judge must approve or refuse an application within the sixty-day timeframe, the
legislative scheme does not foresee citizenship judges remaining seized of an
application beyond that period. The Respondent argues that there is no
statutory authority for a citizenship judge to render a second decision on an
application and in this case the judge’s timeframe for rendering a decision had
already expired, therefore it was inappropriate to refer the Applicant’s
situation back.
[29]
The Respondent also argues that a citizenship
judge would not have had the authority to defer refusing the application until
a final decision of the Immigration Appeal Division [IAD] in view of the
requirement to render his decision within sixty days of the referral of an
application. The Respondent submits that the exception found in subsection
14(1.1) does not apply in this case because the applicant was not awaiting an
admissibility hearing. The Respondent relies on two decisions of the Federal
Court that established that when individuals are subject to a removal order
without having undergone an admissibility hearing, their applications must be
rejected (see Hadaydoun, cited above and Richi v Canada (Minister of
Citizenship and Immigration), 2013 FC 212).
[30]
The Respondent acknowledges that although in Obi,
cited above, a deferral was allowed, the Federal Court clarified the issue in Hadaydoun
and submits that an applicant subject to a removal order issued outside the
context of an admissibility hearing cannot benefit from subsection 14(1.1) of
the Act, even if he has appealed the removal order (see Hadaydoun at
paras 25 to 28).
[31]
Subsection 2(2) of the Citizenship Act
clearly states that the issuance of a removal order pursuant to subsection
44(2) of the IRPA results in the rejection of a citizenship application
without delay according to the Respondent. He submits that the citizenship
judge had already exercised her statutory authority by the time the Officer was
confronted with Mr. Alsayegh’s change of circumstances and it was therefore
open to the Officer to implement appropriate measures to respond to these new
facts.
Recommendation under subsection 5(4) of the Citizenship Act
[32]
The Respondent refutes Mr. Alsayegh’s claim and
submits that only the Governor in Council has the authority to direct the
Minister to grant citizenship pursuant to subsection 5(4). The Minister has no
authority to do so unless directed by the Governor in Council. The Respondent
claims that the Citizenship Act does not impose a duty to consider
making a recommendation analogous to that of subsection 15(1). The Respondent
relies on Huy v Canada (Minister of Citizenship and Immigration), 2012 FC
755 at paras 19 to 22 [Huy] to argue that a Citizenship Officer has no
obligation to consider making a recommendation under subsection 5(4) when
refusing citizenship.
[33]
The Respondent also submits that the Officer was
not well placed to examine whether a recommendation under subsection 5(4) would
be appropriate. He adds that it was Mr. Alsayegh’s burden to show that his
personal circumstances justify making such a recommendation and relies on Maharatnam
v Canada (Minister of Citizenship and Immigration), [2000] FCJ No 405 at
para 5 and Saqer v Canada (Minister of Citizenship and Immigration),
2005 FC 1392 at para 20.
[34]
The Respondent argues that the Applicant had the
right to raise issues relevant to subsection 5(4) considerations during his
initial citizenship application. The Citizenship Officer did not need to comb
through Mr. Alsayegh’s file in search of evidence of hardship, especially since
he was under a removal order for failure to meet his permanent residency
obligations.
[35]
Finally, the Respondent alleges that re-applying
for citizenship is the appropriate remedy even in cases where a removal order
has been quashed on appeal (see Hadaydoun at para 30). Mr. Alsayegh will
then be able to present arguments to justify an application of subsection 5 (4)
when filing a new citizenship application.
VI.
Analysis
1) Did the Citizenship Officer err when he
terminated Mr. Alsayegh’s citizenship application?
[36]
The Court agrees with Mr. Alsayegh that he has
not lost his permanent resident status yet because the removal order that was
rendered against him has not come into force. Therefore, the Officer’s decision
could not have been made pursuant to paragraph 5 (1)(c) of the Citizenship
Act (see Hadaydoun, cited above, at para 19). However, the Officer’s
decision was based on paragraph 5(1)(f). That paragraph reads as follows:
“5. (1) The Minister
shall grant citizenship to any person who
[…]
(f) is not
under a removal order and is not subject of a declaration by the Governor in
Council made pursuant to section 20”.
[37]
In Hadaydoun, the Court examined the
terms “under a removal order” used in paragraph 5(1)(f) and concluded
that pursuant to paragraph 2(2)(c) of the Citizenship Act, an
applicant remains under a removal order unless a final determination has been
made and the result of it is to quash the removal order (see paragraph 23 of
the decision). In other words, “[f]rom the time that a removal order is issued
and for the period during which the removal order is under judicial review or
appeal, the person is ineligible for citizenship under paragraph 5(1)( f)
of the Act” (see paragraph 23 of the decision).
[38]
In Hadaydoun, the removal order was
issued against the applicant before his hearing in front of a citizenship
judge. It was determined that the judge did not have jurisdiction to postpone
the hearing until the appeal of the removal order was completed, because there
exists no provision for delay or adjournment or extension of time to come to a
determination on the application, once it is referred to the judge (see paragraph
24). However, in the present case a citizenship judge had already approved Mr.
Alsayegh’s application. The issue is therefore whether a citizenship officer
could terminate or close a file which had already been approved.
[39]
Mr. Alsayegh submits that this is equivalent to
Officers rendering decisions on citizenship applications, a matter clearly
outside their jurisdiction. The Court agrees. The Respondent acknowledged in
his memorandum that the Citizenship Act does not explicitly grant a
citizenship officer the power to terminate or close files. However, the
Respondent asserts that this was nonetheless the appropriate action given that
the applicant is under a removal order and is therefore ineligible for
citizenship. The Respondent argues that there is no statutory authority for a
judge to render a second decision on an application and that the judge’s
sixty-day timeframe to render a decision has already expired.
[40]
The Court is not convinced by the Respondent’s
argument based on the sixty-day timeframe. The citizenship judge had sixty days
to render a decision on Mr. Alsayegh’s citizenship application and did so.
Therefore, if the matter was remitted back to a citizenship judge for a second
decision, based on the alleged “new facts”, this delay would not be an issue.
[41]
The Court acknowledges that even if the matter
had been referred to a citizenship judge, the judge may have had to render a
new decision on Mr. Alsayegh’s citizenship, because he is currently under a
removal order. However, the Officer would not have exceeded his jurisdiction.
[42]
It was unreasonable for the Officer to close Mr.
Alsayegh’s file, especially in the particular circumstances of this case. Less
than two months earlier, a citizenship judge had determined that Mr. Alsayegh
was eligible. There remained only one formality to be completed and that was Mr.
Alsayegh taking his oath. The Court finds that it was not open to the Officer
to close Mr. Alsayegh’s file, which, in practice, set aside the judge’s
decision as the Officer is clearly not empowered to take such action and
reverse decisions taken by Citizenship judges under the Citizenship Act.
2) Was the Citizenship Officer under a
duty to consider making a recommendation under subsection 5(4) of the
Citizenship Act?
[43]
The Court notes that the Respondent asserts that
the Officer was not well placed to examine whether a recommendation under
subsection 5(4) would be appropriate, but argues that the Officer was
nonetheless well placed to close the file, notwithstanding the particular
circumstances of the case.
[44]
The Court finds that the case of Huy,
cited above, is distinguishable because it involved the application for
citizenship by a person adopted by a Canadian citizen, which is governed by
section 5.1. The Court, in Huy, concluded that since it was not an
application to be considered by a citizenship judge, the obligation under
subsection 15(1) did not apply (see paragraph 21).
[45]
The Huy case is therefore different from
the case at bar. Mr. Alsayegh’s application was considered by a citizenship
judge, who did not need to consider subsection 5(4) at the time since he met
all the requirements to be granted his Canadian citizenship. Subsection 5(4)
comes into play when the judge is unable to approve an application under subsection
14(2) (see section 15 of the Citizenship Act and Huy, cited
above, at para 20). The citizenship judge approved Mr. Alsayegh’s application.
Therefore, the Court rejects the Respondent’s position that it was incumbent on
the Applicant to raise the issues relevant to subsection 5(4) considerations
during his initial citizenship application.
[46]
The Respondent claims that it was Mr. Alsayegh’s
burden to justify such a recommendation. The Court finds that this was
impossible in the present case, the Officer having closed the file without
affording Mr. Alsayegh the opportunity to make any representations.
Furthermore, Bulletin 031 states that Officers and agents need to decide
whether an individual should be invited to submit a subsection 5(4) application
by evaluating the particular circumstances of the individual’s case. The
documentary evidence does not suggest that the Officer evaluated Mr. Alsayegh’s
particular circumstances and he was never invited to make such an application.
The relevant part of Bulletin 031 reads as follows:
“When deciding
whether an individual should be invited to submit a 5(4) application, officers
and agents should use their own judgment based on their experience and
expertise and make a determination by relying on their evaluation of the
particular circumstances of the individual’s case” (see page 3 of Bulletin 031
in the Applicant’s record, page 1396).
[47]
As to the Respondent’s submission that the Citizenship
Act does not impose a duty, on a Citizenship Officer, to consider making a
recommendation analogous to that of subsection 15(1), the Court considers that
by omitting to refer the file back to a citizenship judge and instead
proceeding to close the file, the Respondent prevented Mr. Alsayegh from having
a judge determine whether or not to recommend an exercise of discretion under
subsection 5(4) of the Act. It is, in this Court’s view, unreasonable
for the Respondent to justify his failure to comply with the procedures in
Bulletin 031 by stating that there exists no analogous duty.
[48]
The Court agrees with Mr. Alsayegh that the
Officer’s decision to terminate his application without giving any
consideration to a recommendation for a discretionary grant of citizenship
pursuant to subsection 5(4) is unreasonable and does not fall within the range
of possible, acceptable outcomes, defensible in respect of the facts and the
law.
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