Docket: T-957-15
Citation:
2016 FC 827
Ottawa, Ontario, July 20, 2016
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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LUIS ALONSO
DIEZ MONTOYA, ALSO KNOWN AS LUIS ALONSO MONTOYA TOBAN, LUIS A. MONTOYA AND
LUIS ALONSO MONTOYA TOBAN
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
This application seeks review of the May 7, 2015
decision of the Governor in Council [GIC], revoking the Applicant’s citizenship
pursuant to sections 10 and 18 of the Citizenship Act, RSC 1985, c C-29,
as it appeared on May 13, 2015 [Citizenship Act].
[2]
On February 9, 2016, Justice Hughes granted the
Applicant leave to adduce new evidence within 20 days of the date of that Order,
including affidavits containing any new evidence regarding the Applicant’s entire
immigration file, and tax and disability information. The judicial review
scheduled for February 25, 2016, was thus adjourned.
[3]
The Applicant requested further adjournment on
May 4, 2016, since he had not yet received his entire immigration file from the
government. The Respondent objected on the basis that the Applicant has already
been provided an opportunity to file further evidence, and has failed to demonstrate
the relevance of his entire immigration file to this proceeding, particularly
since it would not have been before the decision-maker.
[4]
By Order dated June 3, 2016, Justice Noël set
down this judicial review to be heard peremptorily.
II.
Background
[5]
The Applicant, Mr. Luis Alonso Diez Montoya
(also known as Luis Alonso Montoya Toban, Luis A. Montoya, and Luis Alonso
Montoya Tobon), was born in Colombia on November 22, 1950, and became a
permanent resident of Canada on May 18, 1973. He first applied for Canadian
citizenship in August 1984, which was refused in April 1985, due to
non-compliance with the knowledge requirement.
[6]
On January 23, 1985, the Applicant, under the
name Luis Alonso Montoya, was arrested in Florida, USA, and charged with
importation of and possession with the intent to distribute cocaine by US authorities.
[7]
The Applicant was tried and convicted for his
drug-related crimes in July 1985, and was incarcerated from September 1985 to
February 1988. He was subsequently deported to Colombia.
[8]
On January 24, 1989, the Applicant returned to
Canada after being issued a Canadian returning resident permit. In March 1989,
he filed a second citizenship application under the name Luis Alonso Montoya
Tobon. Though the application required that he truthfully answer the questions
on the form and indicated a warning of possible revocation for failure to do
so, his application declared no absences from Canada in the four years
preceding the date of his application, and listed one place of residence in
Canada during those years.
[9]
This application was approved, and the Applicant
became a Canadian citizen on November 23, 1989. Two months later, the Applicant
applied for a replacement certificate, stating he had legally changed his name
to Luis Alonso Diez Montoya.
[10]
The Applicant was convicted on April 23, 1992,
of further drug-related crimes and received a sentence of three years
imprisonment.
[11]
In June 1999, the Royal Canadian Mounted Police
[RCMP] verified using fingerprint comparison that the Applicant is the same
individual as Luis Alonso Montoya – incarcerated in the US in the mid-1980s.
[12]
On May 18, 2000, pursuant to section 18(1) of
the Citizenship Act, Citizenship and Immigration Canada [CIC] served the
Applicant a Notice of Intent to Revoke Citizenship, which the Applicant
requested be referred to the Federal Court.
[13]
The Minister of Citizenship and Immigration [the
Minister] commenced an action in July 2004. By Consent Order dated February 14,
2007, the Federal Court declared that the Applicant had obtained Canadian
citizenship by false representation or fraud or by knowingly concealing
material circumstances. The Applicant consented to judgement and agreed that
the Minister may proceed to report to the GIC, recommending revocation of his
Canadian citizenship [the Report].
[14]
On February 11, 2009, the Minister attempted,
unsuccessfully, to serve the Report on the Applicant.
[15]
On October 30, 2014, the Minister successfully
served a letter with a copy of the Report on the Applicant. The letter
requested that the Applicant provide any information he would like to have
considered by the Minister and the GIC within 30 days, which would be attached
to the Report before being presented to the GIC. The Applicant provided no
submissions.
[16]
The Report sets out the facts as above
described. It cites sections 10(1) and 18 of the Citizenship Act, as
amended, as statutory basis for the recommendation, and after a “careful and thorough consideration of all the facts of the
case and the legislative requirements for revocation of citizenship”,
recommends that the Applicant’s Canadian citizenship be revoked. The result
being that the Applicant’s status would revert to that of a permanent resident,
and he would be subject to the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA] (per subsection 46(2) of the IRPA).
[17]
Pursuant to the Minister’s Report, the GIC
issued an Order in Council (P.C. 2015-572), fixing May 7, 2015, as the date on
which the Applicant ceased to be a Canadian citizen. The Report of the Minister
forms part of the reasons of the GIC, and together they constitute the decision
under review [the Decision] (Oberlander v Canada (Attorney General),
2004 FCA 213 at para 36 [Oberlander (FCA)]).
[18]
For the duration of this above period, the
Applicant had steady employment in Canada for approximately 19 years, and
contributed to a Canadian pension during that time. He currently receives
Canadian Disability Benefits, as he suffers various medical conditions which
have left him unfit for employment.
III.
Issues
[19]
The issues are:
- Was there was an
unreasonable and unjustified delay, and if so, did it directly cause
significant prejudice amounting to an abuse of process?
- Was the Decision
of the GIC reasonable?
IV.
Standard of Review
[20]
Issues of procedural fairness are reviewed on a
correctness standard.
[21]
The GIC has broad discretion at the stage of citizenship
revocation – a decision that involves a delicate balancing of policy, personal
interests and the public interest – and the Decision is reviewed on the
standard of reasonableness (Oberlander (FCA), above, at para 12).
V.
Analysis
A.
Was there was an unreasonable and unjustified
delay, and if so, did it directly cause significant prejudice amounting to an
abuse of process?
[22]
The Applicant submits that the delay of 15 years
from when he was first informed of the Minister’s intent to revoke his
citizenship (May 18, 2000) to its revocation by Order of the GIC (May 7, 2015)
is unreasonable, amounts to an abuse of process, and is a violation of section
11(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11
[the Charter] and of subsection 173(b) of IRPA.
[23]
Neither subsection 11(b) of the Charter
nor subsection 173(b) of the IRPA are applicable, and thus violated in
these circumstances. Subsection 11(b) applies to the right of “any person charged
with an offence” to be tried within a reasonable time. Subsection 173(b) of
the IRPA requires the Immigration Division – not the Minister or
the GIC – to hear a matter without delay. The only visible arguments of
procedural unfairness are thus those concerning abuse of process.
[24]
The Applicant analogises the present case to Canada
(Minister of Citizenship & Immigration) v Parekh, 2010 FC 692 [Parekh],
wherein Justice Danièle Tremblay-Lamer granted a stay on the basis of
inordinate delay amounting to an abuse of process, despite her finding that the
defendants had obtained their citizenship by misrepresentation, fraud, or
concealing material circumstances.
[25]
In Parekh, above, CIC had become aware of
the defendants’ convictions and misrepresentation in May 2003, yet the Minister
only provided them notices it would be revoking citizenship in January 2007.
[26]
Similarly, the Applicant proposes that all
information necessary to proceed with revocation of his citizenship was
available to CIC in 2000. He argues there is no reasonable explanation for the
delay: the issues at hand are not complex, the delay was not a consequence of
the complexity of the case or any action or inaction of the Applicant, and
there is nothing inherent to the administrative process that requires several
years for a decision.
[27]
Citing Blencoe v British Columbia (Human
Rights Commission), 2000 SCC 44 [Blencoe] – a leading case on abuse
of process amounting from delay in the administrative context – the Applicant
argues that the delay amounts to an abuse of process, particularly given the
importance of the Decision. Canadian citizenship is a significant interest that
is fundamental to full membership in Canadian society (Parekh, at para
52; Benner v Canada (Secretary of State), [1997] 1 S.C.R. 358). Moreover,
the Applicant suffers from serious medical conditions and an inability to
support himself or to receive appropriate treatment in Colombia, should he be
deported.
[28]
State-caused delay, without more, will not
warrant a stay of proceedings as an abuse of process.
[29]
The delay must be unreasonable or inordinate –
the assessment of which is contextual and will depend upon the nature and
complexity of the case, the facts and issues, the purpose of the proceedings,
and whether the party contributed to the delay (Blencoe, above, at paras
101, 120-122, 160).
[30]
There must also be proof of significant
prejudice resulting from the unacceptable delay. Though the Applicant has not
alleged that the delay has compromised the fairness of any hearing, as the
Supreme Court stated at paragraph 115 of Blencoe:
…[t]he doctrine of abuse of process is not
limited to acts giving rise to an unfair hearing; there may be cases of abuse
of process for other than evidentiary reasons brought about by delay. It must
however be emphasized that few lengthy delays will meet this threshold.
I caution that in cases where there is no prejudice to hearing fairness, the
delay must be clearly unacceptable and have directly caused a significant
prejudice to amount to an abuse of process
[Emphasis added]
[31]
To find an abuse of process, the Court must be
satisfied that the damage to the public interest in the fairness of the
administrative process should the matter proceed exceeds the harm to the public
interest in the enforcement of the legislation if the proceedings were halted.
Such cases will be “extremely rare”, as the
proceedings must be “unfair to the point that they are
contrary to the interests of justice” (Blencoe, at para 120).
[32]
It is thus necessary to consider both (i) whether
there was an inordinate delay, and (ii) whether the Applicant suffered
significant prejudice directly stemming from such delay.
[33]
The relevant timeline of events is as follows:
- June 1999 – the
RCMP verified that the Applicant was Luis Alonso Montoya;
- May 18, 2000 –
the Minister served the Applicant a Notice of Intent to Revoke
Citizenship, which the Applicant requested be referred to the Federal
Court;
- July 2004 – the
Minister commenced an action seeking a declaration the Applicant had
obtained Canadian citizenship by false representation or fraud or by
knowingly concealing material circumstances;
- February 2007 –
the Federal Court issued the above-requested Order, on consent;
- February 2009 –
the Minister attempted, unsuccessfully, to serve the Report to the
Applicant;
- October 30, 2014
– the Minister successfully served a letter with a copy of the Report to
the Applicant; and
- May 7, 2015 –
the GIC issued an Order in Council revoking the Applicant’s citizenship.
[34]
In the immigration and citizenship context, this
Court has considered three main factors, stemming from Blencoe, in
assessing the reasonableness of the delay: (1) the time taken compared to the
inherent time requirements of the matter; (2) the causes of delay; and (3) the
impact of the delay (Parekh, at paras 30-55; Canada (Minister of
Citizenship and Immigration) v Bilalov, 2013 FC 887 at paras 21-24 [Bilalov];
Canada (Minister of Citizenship and Immigration) v Ekwi, 2015 FC 305 at
paras 28, 29).
[35]
In considering the time taken compared to the
inherent time requirements of the matter, I disagree with the Applicant that
the delay is 15 years, as various interim proceedings and events break up that
time period.
[36]
The first period of delay ran from May 18, 2000,
when the Applicant was given notice of the Minister’s intentions and requested
that it be referred to the Federal Court, and February 2004, when the Minister
filed an action in Court. Though the Minister has provided no explanation for
this four year delay, any delay stemming from that period should have been
raised at that stage of the proceedings, as it was in Parekh; Canada
(Minister of Citizenship and Immigration) v Modaresi, 2016 FC 185; Monla
v Canada (Minister of Citizenship and Immigration), 2016 FC 44 and Bilalov.
[37]
Contrary to the Respondent’s arguments however,
the relevant period for assessing the delay in this instance does not only
cover the period between the deadline for the Applicant to provide submissions
regarding the Report, and the date when the Applicant ceased to be a Canadian
citizen (Khan v Attorney General of Canada, T-1029-14). Only assessing
delay over that period could result in the passage of an inordinate and
prejudicial period of time between when the affected individual becomes aware
of the Minister’s intent to revoke citizenship, and when their citizenship is
actually revoked.
[38]
I find that the period of the delay subsequent
to the first period of delay discussed above should commence following a
determination that the Applicant had obtained his citizenship through false representation
or fraud or by knowingly concealing material circumstances, which in this case
occurred on February 14, 2007. At this point, the facts required to support
revocation of the Applicant’s citizenship had been admitted. A period of seven
years and eight months passed from that date until the Applicant was served
with a copy of the Minister’s Report on October 30, 2014. The Report indicates
that the Minister attempted, unsuccessfully, to serve the Applicant in February
of 2009; however, there is no explanation for why it took a further five years
to again attempt service in 2014.
[39]
This was not a complex case, nor one requiring
further investigation. Quite clearly, this appears to be a case that “was not given the priority it deserved”, particularly
in light of the interest at stake (Parekh, at para 42 citing R v
Sadiq, [1991] 1 FC 757 at para 31).
[40]
On the second of the above issues to consider –
the causes of the delay – I note that the Minister has offered no explanation
for the delay in preparing the Report and serving it upon the Applicant.
[41]
In the absence of any reasons which might
justify the delay, I find that the delay of seven years and eight months or
even of five years (if calculated from the date of first attempted service to
actual service) is inordinate. The case was not complex, the necessary facts
were admitted, the purpose of the proceedings involves revocation of an
important right, and there is no evidence that the Applicant contributed to the
delay.
[42]
The third of the above enumerated factors
considers the impact of the delay. Evidence must show that the delay “directly caused a significant prejudice to amount to an
abuse of process” (Blencoe, at para 115).
[43]
The Applicant has presented evidence that he had
steady employment in Canada for approximately 19 years, and that he suffers
from various medical conditions which have left him unfit for employment. He
claims that the delay in revocation deprived his ability to obtain a pension in
Colombia, and that his medical conditions make him unable to work or receive
appropriate treatment there. The Applicant alleges he has established a life in
Canada with family and friends, and that he has not been similarly able to do
so in Colombia.
[44]
I find that this is evidence of potential
prejudice to the Applicant is not directly caused by the delay, and is either
not “significant prejudice” or is only
applicable should he ultimately be deported. Given the reason the Applicant’s
citizenship is being revoked, he may face deportation in the future. However,
it is not for the Court to speculate or make a determination on the harm that
might cause at the present time.
[45]
In my view, the delay, though undoubtedly
inordinate, did not cause the Applicant actual prejudice of such a magnitude
that the public’s sense of decency and fairness would be offended by the delay
(Blencoe, at paras 33, 121-122). This is not a situation like Parekh,
where the affected parties were denied passport issuance and an ability to
sponsor their daughter for many years due to administrative inattention. Nor is
it a case where the Applicant’s right to procedural fairness in the hearing context
has been affected by the delay (Beltran v Canada (Minister of Citizenship
& Immigration), 2011 FC 516).
[46]
Delay only amounts to abuse of process in the
clearest of cases (Blencoe, at para 120), and in my opinion, this is not
such a case.
B.
Was the Decision of the GIC reasonable?
[47]
The Applicant argues that the Decision is
unreasonable because the GIC did not consider his humanitarian and
compassionate grounds, including the hardship the Applicant would suffer if
returned to Colombia.
[48]
Judicial review should proceed on the basis of
the evidence that was before the decision-maker, and the GIC cannot be faulted for
not having considered information that was not before him. Though such evidence
might have had some relevance to the GIC’s Decision, the Applicant was provided
the opportunity to provide any information he wished to have considered by the
Minister and the GIC within 30 days of receiving the October 14, 2015 letter.
He did not do so. Further, though the Applicant was granted leave to introduce
new evidence in this judicial review, the admission of such evidence was
intended to support his allegations of prejudice and abuse of process, and
cannot be used to challenge the reasonableness of the GIC’s Decision.
[49]
The Applicant also alleges that his
misrepresentation in obtaining citizenship was neither intentional, nor a
misrepresentation. Not only is this irrelevant to the judicial review, but the
denial directly contradicts the Minutes of Settlement pursuant to the Court’s
February 2007 Consent Order (T-1369-04) that states “the
Defendant [Applicant herein] concedes that he knew that he didn’t have all the
requirements for citizenship stated on his application form” and “admits that he falsely declared on his application for
Canadian citizenship … no absences from Canada”. The Consent Order declared
that the Applicant obtained citizenship by false misrepresentation, fraud or
knowingly concealing material circumstances. That determination is final and
the Applicant cannot now argue it was erroneously arrived at in this
proceeding.
[50]
The Applicant further argues that his
deportation will violate section 7 of the Charter. This judicial review does
not directly involve issues of deportation, and there is no evidence of
deportation proceedings, or of its inevitability. Revocation of the Applicant’s
citizenship renders him a permanent resident, pursuant to subsection 46(2) of
the IRPA, as indicated in the Minister’s Report. Though the Applicant
may ultimately be subject to removal from Canada, I agree with the Respondent
that the Applicant has failed to demonstrate how, at this juncture, revocation
of his citizenship constitutes a deprivation of his life, liberty or security
of his person.
[51]
This application is thus dismissed, as the
Applicant has not demonstrated that the inordinate delay leading to his
citizenship revocation amounted to an abuse of process, or that the decision of
the GIC was unreasonable.
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