Docket: T-1870-15
Citation:
2016 FC 627
[ENGLISH TRANSLATION]
Ottawa, Ontario, June 7, 2016
PRESENT: The Honourable
Mr. Justice Harrington
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BETWEEN:
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NADIA BOUHIA
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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
[1]
This is an application for judicial review
against a citizenship judge’s decision to deny the application for Canadian
citizenship made by the applicant, Ms. Bouhia. The application was made before
the Citizenship Act was changed in 2014. In the judge’s opinion, the
applicant had not discharged her burden to show that she had been in Canada for
at least three of the four years (1,095 days) preceding her application. The
judge, in exercising his discretionary power, chose the strict criterion of
physical presence, as established by Mr. Justice Muldoon in Re Pourghasemi,
[1993] F.C.J. No. 232, 62 F.T.R. 122. That should not have been
a problem because the applicant claimed to have been in Canada for 1,126 days.
[2]
The judicial review hearing was scheduled for
May 25, 2016. On May 6, the Minister submitted a written motion,
proposing that the parties agree to a judgment allowing the application for
judicial review and sending the matter back to another citizenship judge for
reconsideration.
[3]
Ms. Bouhia refused to agree to the proposed
terms. She considered that she was entitled to costs under Column V of Tariff
B, given the shocking nature of the decision currently under review and the
delay in rendering the decision. She also insisted that a hearing be held
before another citizenship judge within 30 days of this Court’s judgment and
that this new judge be required to find that the evidence showing that the
applicant’s children had been present in Canada was proof that she had been
present in Canada and that the bank statements submitted by the applicant were
valid.
[4]
The Minister vigorously opposed the applicant’s
proposals. Rule 22 of the Federal Courts Citizenship, Immigration and
Refugee Protection Rules states that
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22 No costs shall
be awarded to or payable by any party in respect of an application for leave,
an application for judicial review or an appeal under these Rules unless the
Court, for special reasons, so orders.
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22 Sauf
ordonnance contraire rendue par un juge pour des raisons spéciales, la
demande d’autorisation, la demande de contrôle judiciaire ou l’appel
introduit en application des présentes règles ne donnent pas lieu à des
dépens.
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[5]
Under the circumstances, I issued a directive to
the effect that [TRANSLATION] "The Court [was] not prepared to render a written
decision regarding the judicial review" and ordered that the
hearing be held on May 25, 2016, as planned.
[6]
The hearing did, in fact, take place. I advised
the applicant that, before I could examine her claims regarding the findings of
fact and costs, I first needed to decide on the merit of the underlying
application for judicial review. I therefore could not limit myself to deciding
only the question of the findings of fact and costs, even if the Minister
seemed prepared to concede that the citizenship judge’s decision was
unreasonable.
[7]
In this case, the applicant convinced me that
the decision should be set aside. The citizenship judge’s assessment of the
bank statements constituted a breach of procedural fairness.
[8]
I advised the parties that I was going to issue
a judgment in accordance with that proposed by the Minister and that I would
not grant the applicant’s motions regarding the findings of fact or costs.
There was no particular reason to award her costs, Moreover, the findings of
fact are the responsibility of the citizenship judge during reconsideration of
the file, and not of the Federal Court during the judicial review.
[9]
Obviously, under the circumstances, the Minister
claimed costs for the incidental expenses he incurred. He pointed out that, in
the end, the applicant obtained no more than she would have obtained had she
accepted the Minister’s proposal two weeks earlier, which would have avoided
the hearing.
[10]
Although I was tempted to award costs to the
Minister, I thought it best to end this sad story quickly. I am not awarding
costs to either party.
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