Docket: T-1662-16
Citation:
2016 FC 1166
Ottawa, Ontario, October 19, 2016
PRESENT: The Honourable Madam Justice Elliott
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BETWEEN:
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YU CHUN ANTHONY
WONG
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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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ORDER AND REASONS
I.
Background Facts and Submissions
[1]
This is a motion made by the Applicant, Mr.
Wong, for an interim order enjoining the Governor in Council [GIC] from
rendering a decision on his citizenship revocation until such time as the
underlying application for leave and judicial review has been finally decided.
That application seeks: (1) a declaration that the delay in processing Mr.
Wong’s citizenship revocation is an abuse of process; and (2) a declaration
that the proper remedy for the delay is an order enjoining the GIC from
rendering a decision in Mr. Wong’s case.
[2]
Mr. Wong applied for Canadian citizenship in
2001. In 2002, he was charged with five indictable offences involving rock
cocaine. He was convicted of the charges in 2003 and received a conditional sentence
of 18 months. In July 2002, before his convictions but after being charged, he
wrote the citizenship test. He did not accurately answer a question on that
test about criminal charges or convictions. He also did not inform the Minister
about his charges prior to receiving citizenship. He now says that was because
his English was poor and as he was presumed innocent, he did not have to answer
in the affirmative regarding his charges. By operation of section 22 of the Citizenship
Act, RSC 1985, c C-29, as it then read, he should not have been granted
citizenship while the charges were pending or for at least three years after
his conviction. Nonetheless, in October 2002, he obtained his citizenship.
[3]
In April 2006, Mr. Wong was convicted of one
count of false representation under the Citizenship Act and was fined
$500 because of his false answer. The lawyer he retained at that time told Mr.
Wong further action could occur with respect to his citizenship. From then on,
Mr. Wong has been concerned about losing his citizenship: he did not travel,
even to see his dying grandmother in Hong Kong, because he feared his
citizenship would be revoked.
[4]
In June 2012, Citizenship and Immigration Canada
[CIC] advised Mr. Wong that his citizenship might be referred to the GIC for
revocation. On July 16, 2012, his representative wrote to request a referral to
this Court. CIC refused the request because Mr. Wong had been served with
notice that CIC intended to have his citizenship revoked more than thirty days
prior to his request. Mr. Wong has now made the request again. Ultimately, the GIC
revoked Mr. Wong’s citizenship on April 23, 2015, but following Mr. Wong’s
application for judicial review, the Minister consented to an Order setting
aside the GIC’s decision and remitting the matter for redetermination. At the
present time the Minister has written a draft report for submission to the GIC
and Mr. Wong’s submissions are due to be submitted shortly. Until the GIC makes
a decision on Mr. Wong’s citizenship, he remains a Canadian citizen.
[5]
Mr. Wong filed his underlying application on
September 28, 2016, the same day he filed this motion. He does not seek review
of a decision. Rather, he seeks to prevent a decision being made by the GIC.
[6]
Mr. Wong states that in this case the crucial
issue is whether he has suffered prejudice. He says the delay in processing the
citizenship revocation is ten years. There were six years from the date of his
conviction for misrepresentation before the government took action on his
citizenship. Prior to that, there were four years from the date of his
misrepresentation to the date of his conviction for it. The evidence in the
record indicates that the branch of CIC responsible for citizenship revocation
was aware of Mr. Wong’s misrepresentation shortly after he obtained
citizenship. Mr. Wong submits that a delay of ten years in rendering a decision
on his citizenship revocation is so severe that it is an abuse of process.
Relying on John Doe v Canada (Citizenship and Immigration), 2007 FC 327
[John Doe] at paragraph 12, he argues that once an abuse of process has
been found to exist, it is such a serious issue that it follows there must
be irreparable harm to the victim of the abuse and to the public interest,
neither of which can be repaired.
[7]
The Minister relies upon the recent decision of
Mr. Justice Annis in Memon v Canada (Public Safety and Emergency
Preparedness), 2015 FC 908 [Memon], both to
distinguish John Doe and to confirm that in an application for a stay
the test for irreparable harm is separate and distinct from, and in addition
to, the test for serious issue. The Minister argues that Mr. Wong has not shown
with clear and convincing evidence that he will be subjected to continued abuse
as a result of the delay in processing his revocation and he has not proven
irreparable harm.
II.
Analysis and Conclusion
[8]
It is well settled that the test for a stay is
that set out by the Supreme Court of Canada in RJR-MacDonald Inc v Canada
(Attorney General), [1994] 1 S.C.R. 311 [RJR-MacDonald]: there must be
a serious issue to be tried, the moving party must suffer irreparable harm if
the stay is not granted and the balance of convenience must support the
granting of a stay. An identical test has been set down in the immigration
context in Toth v Canada (Minister of Employment and Immigration) (1998),
86 NR 302 (FCA).
[9]
In Memon, Mr. Justice Annis noted that
when a serious issue is founded on an abuse of process argument, there is a
requirement that there be significant prejudice to an applicant at that stage
as set out in Blencoe v British Columbia (Human Rights Commission), 2000
SCC 44. But, he notes at paragraph 36, that “does not
exempt normal consideration of the prejudice issue for the purposes of
irreparable harm”. In other words, while a moving party must only show a
serious issue of prejudice on the first stage of the test, its existence must
be established on the balance of probabilities if the same prejudice is to
serve as the irreparable harm for the second stage of the test. I agree. To
roll into the serious issue test the question of irreparable harm obliterates
the tripartite nature of the test. As Mr. Justice Annis explains at paragraph
37, “demonstrating a possibility of significant
prejudice on the final order does not meet the requirement of demonstrating
irreparable harm on the basis of a probability for the intervening period.”
The two tests are separate and distinct.
[10]
I find on these facts the application judge is
best suited to determine the important question of whether an abuse of process
has taken place that is so severe that the GIC be permanently enjoined from
making a decision. Without deciding at this stage whether there is a serious
issue or not, this motion can be determined on the basis of the traditional
test for irreparable harm. To show irreparable harm exists warranting the
exceptional relief of a stay of a pending administrative decision, Mr. Wong is
required to present clear and convincing evidence that establishes a
probability of irreparable harm between the date of the stay and the final
determination of the underlying application for judicial review.
[11]
In considering whether irreparable harm exists
or not, “the only issue to be decided is whether a
refusal to grant the stay could so adversely affect the applicants’ own
interests that the harm could not be remedied if the eventual decision on the
merits does not accord with the result of the interlocutory application”:
RJR-MacDonald at 341.
[12]
Mr. Wong alleges he will suffer irreparable harm
because if a stay is not granted, he will be subjected to continuing abuse that
will harm both him and the public’s confidence in the fairness of the
proceedings. He says this harm cannot be remedied after the fact. In other
words, he raises the same argument under irreparable harm as he does for
establishing a serious issue. Unlike John Doe, the Minister here does
not admit there has been an abuse of process.
[13]
Mr. Wong also argues that the case of Canada
(Citizenship and Immigration) v Parekh, 2010 FC 692 [Parekh], in
which the Minister brought an action in this Court to declare the Parekhs had
obtained Canadian citizenship by false representation or fraud or knowingly
concealing material circumstances is very similar to this case. The Parekhs had
pled guilty to misrepresenting their residency outside Canada for fourteen months
of the four-year period prior to their application. In that case, the impact of
the delay in processing a revocation of their citizenship was that the Parekhs
were unable to travel. They also suffered various other consequences including
uncertainty, distress, great psychological stress as well as an adverse effect
on Mr. Parekh’s employment prospects.
[14]
I do not find Parekh to be helpful in Mr.
Wong’s situation. The inability of the Parekhs to travel was caused by the
government’s refusal to issue passports to the family even though there was no
action being taken to revoke their citizenship at that time. In addition, the
government had misinterpreted the legislation and had refused to process the
daughter’s application for permanent residence on humanitarian and
compassionate grounds as a result of that misinterpretation. These significant
facts, which go directly to the issue of irreparable harm, are very different
than in Mr. Wong’s case. In Parekh the government directly contributed to
the travel anxiety and stress by not issuing a passport.
[15]
Equally important is the difference between
prejudice in asking for a permanent stay of proceedings and irreparable harm in
a motion for an interim stay. Under the test for abuse of process, the Court
looks at both prejudice an applicant has already suffered and prejudice an
applicant will suffer if the proceeding continues. By contrast, the question of
irreparable harm on a stay motion goes only to harm that will arise
between the commencement of the underlying application and its conclusion.
[16]
In my view, a temporary stay of the pending GIC
decision does nothing to resolve the issue of delay put forward by Mr. Wong.
The delay will continue until the final determination of the underlying
application regardless of whether or not the GIC is enjoined from making a
decision pending that event. Allowing the GIC to render a decision could speed
up the process:
a.
If the GIC decides not to revoke Mr. Wong’s
citizenship, he has an answer, subject of course to possible judicial review by
the Minister.
b.
If the GIC determines that Mr. Wong’s
citizenship should be revoked, then Mr. Wong is still free to apply for
judicial review of that decision in addition to pursuing the underlying
application. If Mr. Wong’s citizenship is revoked, he becomes a permanent
resident and then if proceedings to find him inadmissible are commenced, he can
seek a stay of those proceedings or any resulting removal order. In such a case
there will also be other possible avenues to pursue, such as humanitarian and
compassionate relief, a temporary resident permit or a pre-removal risk
assessment, all of which are subject to judicial review. If Mr. Wong receives a
record suspension for his 2003 and 2006 convictions, then he cannot be found
inadmissible to Canada and will remain a permanent resident: Immigration and
Refugee Protection Act, SC 2001, c 27, subs 36(3)(b) [IRPA].
c.
If the underlying application is determined
before the GIC renders a decision, then it may be that the GIC decision is
overtaken by the judicial review and is permanently enjoined.
[17]
Granting a temporary stay of the GIC decision
clearly will not alleviate the delay.
[18]
Mr. Wong has also raised, under the serious
issue branch of the test, other prejudices he has suffered and will continue to
suffer if a stay is not granted. These include: (1) he is restricted from
travelling; (2) by now, he could have lost and then regained his citizenship;
(3) legislative changes over the last decade have put him in a worse position—there
is now a ten-year bar to re-apply for citizenship after revocation and Mr.
Wong’s conviction would now preclude him from appealing a removal order to the
Immigration Appeal Division, where a stay of removal can be ordered on
humanitarian and compassionate grounds; and (4) the uncertainty regarding his
future citizenship has created psychological harm.
[19]
Of these possible harms, the second is
speculative and the third concern arises not directly from the process but
rather from legislative changes. The legislative changes only impact Mr. Wong
if, after all avenues are exhausted, he loses his citizenship. Irreparable harm
is not to be based on either speculation or a series of possibilities.
Moreover, RJR-MacDonald is clear that irreparable harm is harm that
arises if a stay is not granted but the moving party succeeds on the underlying
application. If Mr. Wong receives a permanent stay of the revocation
proceedings, then he will remain a citizen indefinitely and cannot be found
inadmissible to Canada. Therefore, these potential harms are not irreparable.
[20]
With respect to the fourth possible harm, of
psychological stress, the root cause of the harm is said to be the delay and
uncertainty regarding his citizenship status. As is the case with the abuse of
process argument, granting an interim stay will not remedy that stress or
anxiety; only a final determination will give Mr. Wong the answer he seeks.
[21]
Mr. Wong has raised his inability to travel
outside of Canada as a form of psychological harm. There is no evidence that as
a citizen, which is Mr. Wong’s current status, he is precluded from travelling
outside Canada. I will not comment on the psychological report he submitted, as
to do so is unnecessary for this motion and the issue of irreparable harm. Much
of Mr. Wong’s anxiety and his allegations of significant prejudice to him
revolve around his self-imposed refusal to travel outside of Canada because he
believed his citizenship could be revoked. Mr. Wong is directly responsible for
his own actions. The advice Mr. Wong received at the time of his conviction for
making a misrepresentation on his citizenship application was given to him by
his own counsel. Mr. Wong took no steps to verify the information he received
or to follow up over the years to understand whether travel was permissible. In
my view, the cause of the stresses in Mr. Wong’s life related to travel emanate
from his own actions; they do not arise directly from the period of delay in
processing his citizenship application.
[22]
Mr. Wong also has not shown that irreparable
harm will occur to him prior to the resolution of the underlying application or
that a refusal to grant the temporary stay is required to prevent an
irreparable harm. If Mr. Wong does travel and his citizenship is revoked while
abroad, he will still have the right to re-enter Canada as a permanent resident
unless and until a removal order is made against him by the Immigration
Division: IRPA, ss 2(1), 19(2), 27(1), 31(3), 44, 45, 46(1)(c), 46(2)(a).
[23]
In conclusion, I am not convinced that Mr. Wong
has shown he suffers from any harm that will deteriorate further between now
and the final determination of the judicial review hearing such that he should
be granted the exceptional relief he seeks.
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