Docket: T-1161-15
Citation:
2016 FC 217
Ottawa, Ontario, February 17, 2016
PRESENT: The
Honourable Mr. Justice Phelan
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BETWEEN:
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TZU-TSEN LIM
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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.
Introduction
[1]
This is an application for judicial review of a
decision by a citizenship official [Official] to declare the Applicant’s
citizenship application abandoned due to the failure to respond to a letter from
the Official dated April 13, 2015. The Applicant claims that she never received
the letter.
[2]
Despite the usual rule that there should only be
one judicial review per decision, the Applicant also challenges the Official’s
decision not to re-open the citizenship application on the grounds that a
re-opening is only available where there has been administrative error on the
part of the Respondent.
[3]
I indicated orally that the Applicant would be
successful in this judicial review.
II.
Background
[4]
The relevant provisions of the Citizenship
Act, RSC 1985, c C-29, are:
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13.2 (1) The Minister may treat an
application as abandoned
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13.2 (1) Le ministre peut considérer une demande comme abandonnée dans les
cas suivants :
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(a) if the applicant fails, without reasonable excuse, when required
by the Minister under section 23.1,
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a) le demandeur omet, sans excuse légitime,
alors que le ministre l’exige au titre de l’article 23.1 :
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(i) in the case where the Minister requires additional information or
evidence without requiring an appearance, to provide the additional
information or evidence by the date specified, or
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(i) de fournir, au plus tard à la date
précisée, les renseignements ou les éléments de preuve supplémentaires,
lorsqu’il n’est pas tenu de comparaître pour les présenter,
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(ii) in the case where the Minister requires an appearance for the
purpose of providing additional information or evidence, to appear at the
time and at the place — or at the time and by the means — specified or to
provide the additional information or evidence at his or her appearance; or
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(ii) de comparaître aux moment et lieu — ou au
moment et par le moyen — fixés, ou de fournir les renseignements ou les
éléments de preuve supplémentaires lors de sa comparution, lorsqu’il est tenu
de comparaître pour les présenter;
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(b) in the case of an applicant who must take the oath of citizenship
to become a citizen, if the applicant fails, without reasonable excuse, to
appear and take the oath at the time and at the place — or at the time and by
the means — specified in an invitation from the Minister.
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b) le demandeur omet, sans excuse légitime,
de se présenter aux moment et lieu — ou au moment et par le moyen — fixés et
de prêter le serment alors qu’il a été invité à le faire par le ministre et
qu’il est tenu de le faire pour avoir la qualité de citoyen.
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(2) If the Minister treats an
application as abandoned, no further action is to be taken with respect to
it.
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(2) Il
n’est donné suite à aucune demande considérée comme abandonnée par le
ministre.
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…
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…
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23.1 The Minister may require an
applicant to provide any additional information or evidence relevant to his
or her application, specifying the date by which it is required. For that
purpose, the Minister may require the applicant to appear in person or by any
means of telecommunication to be examined before the Minister or before a
citizenship judge, specifying the time and the place — or the time and the
means — for the appearance.
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23.1 Le
ministre peut exiger que le demandeur fournisse des renseignements ou des
éléments de preuve supplémentaires se rapportant à la demande et préciser la
date limite pour le faire. Il peut exiger à cette fin que le demandeur
comparaisse — devant lui ou devant le juge de la citoyenneté pour être
interrogé — soit en personne et aux moment et lieu qu’il fixe, soit par le
moyen de télécommunication et au moment qu’il fixe.
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[5]
The Applicant applied for citizenship in June
2010.
[6]
On October 22, 2014, the Official sent a letter
to the Applicant requesting additional information. The Applicant responded
within the time limits imposed.
[7]
On April 13, 2015, the Official purportedly sent
another letter to the Applicant requesting more complete information and
warning that failure to respond on time would result in the citizenship
application being deemed abandoned.
It
is this letter that is the source of the problem.
[8]
On May 29, 2015, the Applicant having not
responded, the application was deemed abandoned and the file closed. A letter
to that effect was sent to the Applicant.
[9]
The Applicant then responded that she had not
received the April 13, 2015 letter and requested that the file be re-opened.
[10]
The Official replied on July 2, 2015, confirming
the deemed abandonment and refusing to re-open the file. The only reason cited
for the refusal to re-open is:
Abandoned applications are only reactivated
if there was an administrative error on the part of Citizenship officials.
[11]
The parties agree that the judicial review
covers both the deemed abandonment and the refusal to re-open.
III.
Analysis
A.
Standard of Review
[12]
The deemed abandonment issue based on the
failure to give notice is one of procedural fairness. It is subject to the
correctness standard of review (Halder v Canada (Citizenship and
Immigration), 2012 FC 1346, 226 ACWS (3d) 551).
As
held by the Court of Appeal in Chopra v Canada (Attorney General), 2014
FCA 179, 245 ACWS (3d) 250, the refusal to re-open in respect of a
non-adjudicative body’s discretionary decision is governed by the standard of
reasonableness.
B.
Abandonment
[13]
The Respondent’s deemed abandonment decision is
based on the assumption that the April 13, 2015 letter was sent. The
difficulty is that the Respondent cannot prove that fact.
[14]
The affidavit evidence of the Official, taken in
its most favourable light for the Respondent, is that the letter was put into
an outbox tray in the Official’s work area. Where the letter went from there is
not established. What is established is that the Applicant did not receive it.
[15]
There is no notation in the GCMS system, as is
the usual practice, that the letter was sent.
[16]
In addition to not being able to actually prove
the sending, the surrounding circumstances are inconsistent with the
Respondent’s assumption. The evidence is that the Applicant had a pattern of
responding on time to letters from the Respondent. The evidence is that letters
that were actually sent were received at the Applicant’s address.
[17]
Therefore, the Court must find that the April
13, 2015 letter was not sent.
[18]
As a consequence, the Applicant had a “reasonable excuse” pursuant to s 13.2 for her failure
to respond to the Minister.
[19]
In addition to the common law requirement for
notice, which was not given, the Minister did not have the statutory
precondition to treat an application as abandoned.
[20]
On this ground alone, the judicial review will
be granted.
C.
Re-Opening
[21]
It is also necessary to address this second
issue. The Official, having learned that the Applicant had not received the
April 13, 2015 letter, refused to re-open the citizenship application. The sole
grounds for the decision is that the Official does not re-open except for
administrative error by departmental officials including, presumably, errors of
this Official.
[22]
Given the Court’s finding that the letter was
not sent as it should have been, this was the very type of administrative error
that the Official cited.
[23]
More importantly, the cited grounds to exercise
discretion to re-open were arbitrary and unreasonable. The only basis upon
which a case would be re-opened is if the department deemed themselves to be in
error. That ground takes no account of other factors such as Acts of God,
unforeseen circumstances and matters beyond anyone’s control. It is a
self-serving and ludicrous basis from which to reject a re-opening request and is
hence arbitrary.
[24]
It is an unreasonable basis because it lacks
reality, common sense and fairness. As put to counsel, the Respondent would not
re-open even if it knew that the letter was destroyed in a fire in the
department’s offices because officials had not set the fire. It is a
breathtakingly unreasonable position.
[25]
The refusal to re-open decision must be quashed.
IV.
Conclusion
[26]
For all of these reasons, this judicial review
is granted. The decision to treat the citizenship application as abandoned and
the decision to refuse to re-open the application are quashed.
[27]
The Respondent is directed to continue to
process the application in an expeditious (not in the ordinary course) manner.
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