Docket: T-1976-14
Citation:
2015 FC 960
Fredericton, New Brunswick,
August 10, 2015
PRESENT: The
Honourable Mr. Justice Bell
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BETWEEN:
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ALEXANDER
VAVILOV
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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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JUDGMENT AND REASONS
I.
Summary
[1]
This is a judicial review of the decision of the
Registrar of Citizenship (Registrar) communicated to Alexander Vavilov on
August 15, 2014, in which the Registrar revoked
Mr. Vavilov’s citizenship pursuant to paragraph 3(2)(a) of the Citizenship
Act, RSC 1985,
c C-29. The Registrar based his decision upon the fact that Mr. Vavilov’s
parents were employees of a foreign government and not lawful Canadian citizens
at the time of his birth.
Mr. Vavilov challenges the Registrar’s decision on a number of grounds. For the
reasons set out below I am of the view the Registrar’s factual conclusions meet
the test of reasonableness contemplated by the Court in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir], and his interpretation
of the law is correct. For those reasons, I would dismiss the judicial review
application.
II.
Facts
A.
Background
[2]
The Applicant, Alexander Vavilov was born in Canada on June 3rd, 1994. Mr. Vavilov has a brother approximately 3 years his senior. Their
parents, Andrey Bezrukov and Elena Vavilova entered Canada from Russia some
time prior to the birth of their children, and assumed the identities of two
deceased Canadians. The exact date of entry is unknown. The Canadian government
issued passports to them under their assumed identities. It is not disputed
that those identity documents were obtained fraudulently.
[3]
While Mr. Vavilov’s parents were living in Canada, both completed post-secondary education and were employed under their assumed
identities. When the children were born,
Ms. Vavilova became a stay-at-home mother and Mr. Bezrukov continued to run a
successful business. In 1995, Mr. Bezrukov undertook post-secondary study in France. The family left Canada to take up residence in France. The children were 1 and 4
years old, respectively, at that time. It is also the last time any member of
the family resided in Canada. The family lived in France until August of 1999,
after which they moved to Boston, Massachusetts where
Mr. Bezrukov began studies at Harvard’s John F. Kennedy School of Government.
[4]
While in Boston, Mr. Vavilov’s parents became
naturalized American citizens under their assumed Canadian identities. After
their naturalization, their sons obtained American citizenship. There is little
other information in the record about Mr. Vavilov’s life until June 1st, 2010
when agents of the United States (US) Federal Bureau of Investigation entered
the family home and arrested his parents. Both parents were charged with one
count of conspiracy to act as unregistered agents of a foreign government and
two counts of conspiracy to commit money laundering.
[5]
The charges related to operations referred to in
the United States as the ‘illegals’ program. This constitutes a subversive
program whereby foreign nationals, with the assistance of their governments,
assume identities and live in the United States while performing ‘deep cover’
foreign intelligence assignments. After undergoing extensive training in their
own country, in this case, Russia, these agents work to obscure any ties
between themselves and their true identities. They establish seemingly
legitimate alternative lives, referred to as ‘legends’, all the while taking
direction from the Russian Foreign Intelligence (SVR) service. According to the
charging documents, Mr. Vavilov’s parents were known to be part of this program
since the early 1990s, and were collecting intelligence for the SVR, who paid
for their services. On July 8, 2010, Mr. Vavilov’s parents pled guilty to the
conspiracy charge and were returned to Russia in a spy swap the next day.
[6]
Mr. Vavilov and his brother used their Canadian
passports to fly to Russia on July 5th, 2010. The American government revoked
Mr. Vavilov’s passport and American citizenship and, on December 10, 2010, he
and his brother were issued Russian passports and birth certificates. Mr.
Vavilov has renewed his Russian passport on at least one occasion.
B.
Procedural History
[7]
In 2010 and 2011, Mr. Vavilov made two
unsuccessful attempts to obtain a Canadian passport. In June of 2012, he applied
for a Canadian student visa, which was issued and then cancelled in August of
the same year as a result of security, identity, and citizenship concerns
regarding Mr. Vavilov and his family.
[8]
Mr. Vavilov and his brother officially changed
their surnames to Vavilov after Canadian officials informed the brother that
new passport applications would not be granted if they relied on their parents’
assumed identities. Mr. Vavilov obtained an amended Ontario birth certificate
on December 1, 2011, setting out his name as Alexander Philip Anthony Vavilov,
and his parents’ true names and places of birth. Based on this amended birth
certificate, he applied for and, on January 15, 2013, obtained a Certificate of
Canadian Citizenship (the Certificate). In his application for the Certificate,
Mr. Vavilov stated that his parents were not employed by a foreign government
or international agency at the time of his birth.
[9]
With the new birth and citizenship certificates,
Mr. Vavilov applied for an extension of his Canadian passport. When the
Canadian government did not issue the passport in a timely manner, Mr. Vavilov
commenced an application for mandamus in the Federal Court. That
application was discontinued on agreement between the parties that a decision
would issue by July 19, 2013.
[10]
On July 18, 2013, the Registrar wrote to Mr.
Vavilov (the fairness letter). Instead of providing him with a decision
regarding his passport application, the Registrar informed him there was reason
to believe the Certificate had been issued in error. The Registrar informed
Mr. Vavilov he had reason to believe his parents were granted citizenship under
assumed identities and were employees of the SVR while in Canada. In the
fairness letter the Registrar cited paragraph 3(2)(a) of the Citizenship
Act and invited Mr. Vavilov to provide “any
information” that would address the Registrar’s concerns within 30 days
of the date of the letter. The Registrar extended the deadline to accommodate
requests for information by Mr. Vavilov pursuant to the Access to
Information Act, RSC, 1985, c A-1.
[11]
One of the requests for information resulted in
some dispute between the parties. That dispute forms one of the grounds for
relief on this judicial review application. Briefly, one of the documents
disclosed to the Applicant shows that the Case Management Officer assigned to
this matter asked the Foreign Affairs Protocol Office for an opinion on Mr.
Vavilov’s status. That office stated it could not provide an opinion because
Mr. Vavilov’s parents did not have diplomatic, consular, or other official
status. Mr. Vavilov enquired as to why the opinion was sought and, furthermore,
asked that the person who had requested the opinion recuse herself from any
further involvement in the matter, she apparently having prejudged the issue.
The Respondent counters that the opinion was not necessary as it was outside
the mandate of the Department of Foreign Affairs and International Trade and,
in any event, no opinion was provided. The Respondent claims there is simply no
issue to be addressed as a result of this disclosure. I agree with the position
advanced by the Respondent. I am of the view there is no merit to the bias
allegation raised by Mr. Vavilov. Officials are entitled to ask questions and
seek opinions in the course of performing their duties without worrying about
the spectre of a bias allegation. Nothing more will be said regarding this
issue in the course of these reasons.
[12]
On August 15, 2014, the Registrar informed Mr.
Vavilov his Certificate was cancelled as of that date and that the Canadian
government no longer “recognizes” him as a “citizen of Canada” and that he “no longer holds legal status” in Canada. The
Registrar relied upon the same reasons as communicated in the fairness letter –
his parents were not lawfully Canadian citizens or permanent residents at the
time of his birth, and furthermore, they were, at the time of his birth, “employees or representatives of a foreign government”
for the purposes of paragraph 3(2)(a) of the Citizenship Act.
III.
Issues
[13]
The following issues are raised on this judicial
review:
1.
Was there a breach of fairness with regard to
disclosure of documents to the Applicant?
2.
Did the Registrar err in interpreting paragraph
3(2)(a) of the Citizenship Act?
3.
Was the decision of the Registrar reasonable on
the evidence before it?
IV.
Relevant Provisions
[14]
For convenience, ss. 3(1)(a) and 3(2)(a)
of the Citizenship Act are reproduced below:
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Persons who are citizens
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Citoyens
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3. (1) Subject to this Act, a person is a citizen if
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3. (1) Sous réserve des autres dispositions de la présente loi, a
qualité de citoyen toute personne :
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(a) the person was born in Canada after February 14, 1977;
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a) née
au Canada après le 14 février 1977;
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…
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[…]
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Not applicable to children of foreign diplomats, etc.
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Inapplicabilité aux enfants de diplomates étrangers, etc.
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(2) Paragraph (1)(a) does not apply to a person if, at the
time of his birth, neither of his parents was a citizen or lawfully admitted
to Canada for permanent residence and either of his parents was
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(2) L’alinéa (1)a) ne s’applique pas à la personne dont, au
moment de la naissance, les parents n’avaient qualité ni de citoyens ni de
résidents permanents et dont le père ou la mère était :
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(a) a diplomatic or consular officer
or other representative or employee in Canada of a foreign government;
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a)
agent diplomatique ou consulaire, représentant à un autre titre ou au service
au Canada d’un gouvernement étranger;
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V.
Analysis
A.
Standard of Review
[15]
It is settled law that issues of procedural
fairness are reviewed on the standard of correctness (See: CUPE v Ontario (Minister
of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539; Khela v Mission Institution,
2014 SCC 24, [2014] 1 S.C.R. 502). It follows that the duty to disclose will be
determined on this standard.
[16]
Mr. Vavilov does not make submissions on the
appropriate standard of review to be applied to the Registrar’s interpretation
of s. 3(2)(a). The Respondent makes lengthy submissions on the matter
and arrives at the conclusion that reasonableness should apply. I respectfully
disagree. I am of the view the interpretation of s. 3(2)(a) of the Citizenship
Act is a question of law of general application across Canada and raises a pure question of statutory interpretation. Furthermore, no privative
clause is engaged and the statutory scheme does not offer any basis upon which
it can be said that the Registrar possesses any greater expertise than the
courts in interpreting the impugned section. (See: Dunsmuir, above; Kandola
v Canada (Minister of Citizenship and Immigration), 2014 FCA 85, [2014] FCJ No 322; and Kinsel v Canada (Minister of Citizenship and Immigration), 2014 FCA 126, [2014] FCJ No 781).
[17]
Finally, the application of paragraph 3(2)(a)
of the Citizenship Act to the facts raises an issue of
mixed fact and law, and will attract a standard of reasonableness: Dunsmuir,
above, at para 47.
B.
Procedural Fairness
[18]
Mr. Vavilov contends the Registrar breached its duty of fairness owed to
him by failing to disclose the documentation which prompted the first
procedural fairness letter. He contends the content of the letter was
insufficient to allow him to address the concerns about his citizenship. The
Registrar acknowledges he had a duty to allow Mr. Vavilov to respond, but
contends the procedure adopted meets any duty of fairness required by Baker
v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817,
[1999] SCJ No 39.
[19]
I agree with the Respondent’s contention. In this case, the threshold
for procedural fairness is not at the upper end given that Mr. Vavilov is a
citizen of Russia, travels on a Russian passport, and would not have been
rendered stateless regardless of the outcome of the enquiry. Although perhaps
of limited relevance on the issue of the procedural fairness threshold, I would
note that Mr. Vavilov has not spent any time in Canada since he was an infant. There
is no requirement that the Registrar provide the Applicant with the complete
documentation which formed the basis of his concerns. Although raised in the
context of a visa application, the observations of Justice de Montigny of this
Court (as he then was) in Nadarasa v Canada (Minister of Citizenship and
Immigration), 2009 FC 1112, [2009] FCJ No 1350, recently followed by Barnes
J. in Zhang v Canada (Minister of Citizenship and Immigration) 2015 FC
463, 252 ACWS (3d) 778, are helpful in the present analysis:
[25] But contrary to the applicant's
submission, the jurisprudence of this Court is not to the effect that an
applicant must actually be given the document relied upon by the
decision-maker, but that the information contained in that document be
disclosed to the applicant so that he or she has an opportunity to know and
respond to the case against him or her. The following quote from Justice
Rothstein (then from this Court) in Dasent v. Canada (Minister of
Citizenship & Immigration) (1994), [1995] 1 F.C. 720 (Fed. T.D.), at
para. 23, is illustrative of that principle:
The relevant point as I see it is
whether the applicant had knowledge of the information so that he or she had
the opportunity to correct prejudicial misunderstandings or misstatements. The
source of the information is not of itself a differentiating matter as long as
it is not known to the applicant. The question is whether the applicant had the
opportunity of dealing with the evidence. This is what the long-established
authorities indicate the rules of procedural fairness require. In the well
known words of Lord Loreburn L.C. in Board of Education v. Rice, [1911]
A.C.179 (H.L.) at page 182:
They can obtain information in any
way they think best, always giving a fair opportunity to those who are parties
in the controversy for correcting or contradicting any relevant statement
prejudicial to their view.
[20]
In this case, the Registrar informed Mr.
Vavilov, via the procedural fairness letter, of his concerns in a manner that
allowed for a meaningful response. The Registrar specifically set out the
issues concerning the fraudulent identification used by Mr. Vavilov’s parents
to obtain citizenship and his concerns about their status as employees or
representatives of a foreign government at the time of his birth. Furthermore,
when Mr. Vavilov’s counsel sought additional information, that information was
provided by the Registrar. In my view, the procedure adopted by the Registrar
met the requirements of procedural fairness.
C.
Interpretation of s. 3(2)(a)
[21]
Mr. Vavilov’s parents were in Canada under assumed identities at the time of his birth. He acknowledges their Canadian
passports were obtained by fraud. However, he contends his parents were “lawfully admitted to Canada” and are Canadian
citizens because the fraudulently obtained documents were never revoked by the
Minister of Citizenship and Immigration. The argument is devoid of any merit
and to give it any credence by further analysis would be an affront to all
those who attempt to come to this country lawfully and obtain valid Canadian
citizenship. Because his parents were not Canadian citizens, if Mr. Vavilov’s
claim to Canadian citizenship is to succeed, it must be based upon his birth in
Canada.
[22]
The question to be answered, on the correctness
standard, is whether the Registrar erred in finding that individuals living in
Canada under an assumed identity and working to establish ‘deep cover’
operations in order to collect intelligence for a foreign government, are included
in the definition of “a diplomatic or consular officer
or other representative or employee in Canada of a foreign government” as
contemplated by s. 3(2)(a) of the Citizenship Act. For the
reasons that follow, I find the Registrar did not err.
[23]
If one reads s. 3(2)(a) in a contextual
and purposive manner, taking the plain meaning of the words, it must include
representatives and employees in Canada of foreign governments, regardless of
diplomatic or consular status. To find otherwise would render the words “other representative or employee in Canada” meaningless. This would be inconsistent with any reasoned approach to
statutory interpretation, and offends the rule that Parliament intends each
word in a statute to have meaning (See: Ruth Sullivan, Statutory
Interpretation, 2nd ed., (Irwin Law Inc. 2007, at 184 [Sullivan]).
This rule flows from the assumption that the legislator avoids tautology.
[24]
The question which remains is whether those who
establish themselves, at the behest of a foreign government, for the purposes
of gathering intelligence for that foreign government constitute “representatives or employees”. The fact the section refers
to both employees and representatives is telling. My view is re-enforced by the
French version which speaks even more broadly about those “représentant
à un autre titre ou au service au Canada d’un gouvernement étranger”. The wording is clearly meant to
cover individuals who are in Canada as agents of a foreign government, whatever
their mandate. In this case, the task was to steal identities, obtain
fraudulent citizenship and, with the benefit of that citizenship, further the
fraud on one of our closest allies – the purpose of the fraud being to obtain
intelligence and provide information to the Russian government. Anyone who
moves to this country with the explicit goal of establishing a life to further
a foreign intelligence operation, be it in this country or any other, is
clearly doing so in the service of (French version), or as an employee or
representative of, a foreign government.
[25]
In my view the Registrar correctly found that
this scenario is captured by s. 3(2)(a) of the Citizenship Act.
To conclude otherwise would lead to the absurd result that children of a
foreign diplomat, registered at an embassy, who conducts spy operations, cannot
claim Canadian citizenship by birth in Canada but children of those who enter
unlawfully for the very same purpose, become Canadian citizens by birth. The
proper application of the rules of statutory interpretation should not lead to
absurd results (See: Sullivan, above, at 209).
D.
Reasonableness
[26]
The final issue for determination is whether it
was reasonable for the Registrar to conclude that Mr. Vavilov’s parents were in
Canada as part of their SVR operation for the Russian government. For the
reasons that follow, I find that it was.
[27]
I find there was sufficient evidence, when
considering the arrest and conviction records and use of false identities by
Mr. Vavilov’s parents, for the Registrar to conclude they were “illegals” working on a deep cover assignment for the
SVR, while in Canada. In addition to the public record, the information
contained in the internal analyst’s report is instructive in that it speaks to
the long term pattern one would expect to see from an illegal. This includes
pursuing higher education and legitimate employment in a host country, in this
case Canada, to establish a “legend” that
becomes increasingly documented and plausible. The legend becomes so authentic that
it appears to be reality. In the report to the Registrar, which was disclosed
to Mr. Vavilov, the analyst states:
Open-source information indicates that the
SVR tasked Mr. Bezrukov with collecting intelligence from U.S. officials on
topics related to U.S. foreign policy on a variety of topics related to
America’s position on Central Asia, Russia, and a variety of national security
issues (including the nuclear non-proliferation, the U.S. position on Iran’s
nuclear weapons program, and the U.S. foreign policy objectives in
Afghanistan).
Considering Mr. Bezrukov’s objectives, it is
reasonable to believe that his pursuit of undergraduate (i.e.: Bachelor degree
at York University in Toronto, Canada) and graduate degrees in the fields of
international business and public administration both enhance the strength of
his legend.
[28]
The record contains no contradictory evidence. It was open to the
Registrar to accept this report, which he reasonably did. I am satisfied the
Registrar’s decision on the facts falls within the range of possible,
acceptable outcomes as contemplated by Dunsmuir, above, at para 47.
VI.
Conclusion
[29]
Mr. Vavilov does not dispute his parents’ status
as illegals in the United States, nor does he dispute that their Canadian
citizenship and passports were obtained by fraud. There is adequate evidence on
the record to reasonably conclude that his parents’ presence in Canada
constituted part of their SVR mission for the Russian government. This enabled
them to establish their legend.
[30]
The application for judicial review is
dismissed.
[31]
I would certify the following questions of
general importance:
1.
What is the standard of review applicable to the
determination of whether Mr. Vavilov is not a Canadian citizen by reason of the
application of paragraph 3(2)(a) of the Citizenship Act?
2.
Are the words “other
representative or employee of a foreign government in Canada” found in
paragraph 3(2)(a) of the Citizenship Act limited to foreign
nationals who benefit from diplomatic privileges and immunities?
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