Docket: T-2666-22
Citation: 2024 FC 662
Ottawa, Ontario, April 30, 2024
PRESENT: The Honourable Madam Justice Tsimberis
BETWEEN: |
JAMILUDEEN ADAMBAWA |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Applicant Jamiludeen Adambawa [Adambawa] seeks a judicial review under section 22.1 of the Citizenship Act, RSC 1985, c C-29 [Act] of a decision by a Senior Analyst with Immigration, Refugees and Citizenship Canada [IRCC], acting as a delegate of the Minister of the IRCC [Delegate] dated November 17, 2022, to revoke his Canadian citizenship for reason of false representation, fraud, or knowingly concealing material circumstances under subsection 10(1) of the Act [Decision].
[2] The Decision is largely grounded in the fact, which the Applicant concedes, that Adambawa, born in Sri Lanka on June 6, 1975, was sponsored as a dependent child, became a permanent resident as a dependent of a Convention Refugee, and became a Canadian citizen under the false identity of “Anker Mahumudu-Lebbe”
, born December 25, 1977, before later gaining citizenship under his true identity. This false identity was stolen from the real Anker Mahumudu-Lebbe, the son of the Applicant’s uncle, Mohamed Ibrahim Mahumudu-Lebbe, after the real Anker Mahumudu-Lebbe (who was similar in age to the Applicant) lost his life. Adambawa later entered Canada in 2004 through Toronto Pearson International Airport and made a claim for refugee protection under his true identity. This claim was granted and Adambawa became a permanent resident under his true identity in 2005 and a Canadian citizen in 2010. He now has three Canadian children, and has lived in Canada for approximately 28 years.
[3] For the reasons that follow, this application for judicial review is dismissed.
II. Background
[4] Adambawa was born in Sri Lanka on June 6, 1975. On July 13, 1995, Adambawa had a sponsorship application submitted in the name of Anker Mahumudu-Lebbe as an accompanying dependent by Suhara Vivi Mahmoothu, who was a Convention Refugee, and entered Canada shortly thereafter. On June 20, 1996, under the guise of Mahumudu-Lebbe, Adambawa became a permanent resident. On December 2, 1999, a citizenship application was submitted for Mahumudu-Lebbe, and on September 19, 2000, Adambawa became a Canadian citizen under that name. Anker Mahumudu-Lebbe’s citizenship certificate number was 7288395. On September 21, 2000, “Anker Mahumudu-Lebbe”
received a passport, which was renewed on January 8, 2006.
[5] In November 2000, Adambawa returned to Sri Lanka and married one of his cousins with the same last name as his false identity. He later returned to Canada because he was afraid of being perceived of marrying his sister (who was really his cousin). On August 7, 2004, Adambawa entered Canada at Pearson International Airport in Toronto, Ontario, and on August 31, 2004, made a claim for refugee protection under his true identity. On April 19, 2005, Adambawa was made a Convention Refugee under false pretenses, and on May 5, 2005, Adambawa submitted an application for permanent residence, which was approved on June 5, 2006. On October 27, 2008, Adambawa submitted an application for Canadian Citizenship under his own name, and on March 5, 2010, became a citizen, with a citizenship certificate number B0640536. On February 11, 2011, Adambawa received a passport under his own name.
[6] On November 5, 2008, Adambawa was charged with committing fraud exceeding $5000 under section 380(1)(a) of the Criminal Code, RSC1985, c C-46 [Criminal Code], as well as forging documents/cheques under section 368(1)(a) of the Criminal Code. From the evidence, these charges are unrelated to the matter at hand.
[7] On June 7, 2011, Passport Canada initiated an investigation into the identities of Anker Mahumudu-Lebbe and Jamiludeen Adambawa after his Facial Recognition Software [FRS] identified a match between the passports for both identities. On September 20, 2012, Passport Canada provided IRCC’s Case Management Branch with a Witness Statement outlining their investigation into both identities.
[8] On September 9, 2016, IRCC issued a Notice of Intent to Revoke Citizenship [First Notice], but the First Notice was cancelled as a result of this Court’s decision in Hassouna v Canada (Citizenship and Immigration), 2017 FC 473 [Hassouna]. Adambawa filed an Application for Leave and Judicial Review against the First Notice and enjoined the Hassouna decision.
[9] On February 14, 2018, IRCC issued a Request for Information Letter, following amendments to the Act made under the Act to amend the Citizenship Act and to make consequential amendments to another Act, RSC 2017, c 14 [Bill C-6]. An amended Request for Information Letter was issued on March 9, 2018 [Request]. On April 20, 2018, through counsel, Adambawa sent submissions in response to the Request, consisting of a summary of Adambawa’s personal circumstances and a series of documents from his family, letters of support, and reports on country conditions in Sri Lanka.
[10] After considering these submissions, it was determined that Adambawa should not receive special relief from commencing citizenship revocation proceedings. On July 23, 2020, a Notification Letter was sent, informing Adambawa of the revocation proceedings on the grounds and reasons that were relied upon to indicate that he obtained citizenship by false representation, fraud, or knowingly concealing material circumstances [Notification]. Through counsel, Adambawa sent submissions concerning the Notification, as well as a request to have his case decided by the Minister of Immigration, Refugees and Citizenship Canada.
[11] In his submissions to the Delegate, Adambawa conceded that he obtained the citizenship of Anker Mahumudu-Lebbe by misrepresentation. He also requested that his citizenship not be revoked with consideration for his personal circumstances, as well as humanitarian and compassionate factors, claiming that:
Adambawa and his younger brother were at serious personal risk leading up to their entry to Canada, targeted by Sri Lankan authorities;
Returning to Sri Lanka would cause significant difficulties and risks as a Muslim; and,
It would not be in the best interests of Adambawa’s children, who are Canadian citizens, for Adambawa to be removed from Canada.
[12] Adambawa’s submissions included that his claim from refugee protection under his own identity in 2004 was made under false pretenses, for which he is remorseful. Adambawa’s Statutory Declaration states that he believes he could have initially declared his true name and identity and still gone on to claim refugee status. Adambawa believed it was likely his refugee claim would have been accepted given the civil war between the Liberation Tigers of Tamil Eelam [LTTE] and Sri Lankan authorities, and the situation of extreme risk for non-Sinhalese youth in Sri Lanka at the time. Adambawa’s uncle advised him at the time against declaring his true identity, which Adambawa accepted due to feelings of great personal risk in Sri Lanka.
III. Decision Under Review
[13] On November 17, 2022, the Delegate, a Senior Analyst in IRCC’s Case Management Branch, Citizenship and Passport Cases Division, and an authorized delegate of the Minister of Immigration, Refugees and Citizenship Canada, sent the Decision to Adambawa along with a signed letter summarizing the Decision’s findings.
[14] The Delegate acknowledged the conflict between the LTTE and Sri Lankan authorities and Adambawa’s belief that his misrepresentation was justified. However, the Delegate also notes that Adambawa has had every opportunity during the immigration and citizenship process since arriving in Canada to provide truthful information regarding his alternate identity, the failure to do so preventing decision makers from accurately assessing his citizenship applications. It was not until revocation proceedings were initiated that Adambawa became truthful.
[15] A letter was submitted via counsel that confirms Adambawa has worked as a manager at an Esso gas station since 2009. The Delegate attributed little weight to Adambawa’s arguments that he is established in Canada through employment, family, and community, because he was only able to benefit from these opportunities as a result of his misrepresentation. Adambawa’s establishment may not have happened if he was not granted permanent residency and citizenship on the basis of his misrepresentation.
[16] With respect to the best interests of Adambawa’s children, who were aged 17, 12, and 5 as of his Statutory Declaration on September 21, 2020, the Delegate attributed little weight to Adambawa’s arguments concerning the difficulties the children would face in Sri Lanka because the children are not at risk of being removed from Canada. The Delegate also noted that Adambawa’s argument that his children would face “substantial economic hardship”
after his removal because he is the primary earner in the household seems to misunderstand the process of revocation. Removal is not the automatic result of revocation, it is a separate process and depends on post-revocation decisions. Whether Adambawa is removed cannot be predicted at the time of the Decision, and issues that arise as a direct consequence of removal would be more properly addressed post-revocation.
[17] As a result of the foregoing, the Delegate found evidence that Adambaya misrepresented himself under a false identity during the application process for permanent residence and Canadian citizenship by not disclosing his true identity. Pursuant to subsection 10(5) of the Act, the Delegate determined that Adambawa’s citizenship, with certificates numbered B0640536 and 7288395, are revoked by reason of false representation, fraud, or knowingly concealing material circumstances.
IV. Issues
[18] The Applicant submits three questions are at issue:
Did the Delegate err by making a decision that lacked rationality and ignored the evidence with regards to the best interests of the Applicant’s children?
Did the Delegate make an unreasonable decision by failing to give proper consideration to the extenuating circumstances underlying the Applicant’s misrepresentation?
Does the Respondent’s treatment of “personal circumstances” empty subsections 10(3.1) and 10(3.2) of meaning?
V. Relevant Law
A. Legislation
[19] Section 10 of the Act governs this application. Relevant subsections include:
Revocation by Minister — fraud, false representation, etc.
10 (1) Subject to subsection 10.1(1), the Minister may revoke a person’s citizenship or renunciation of citizenship if the Minister is satisfied on a balance of probabilities that the person has obtained, retained, renounced or resumed his or her citizenship by false representation or fraud or by knowingly concealing material circumstances.
Notice
(3) Before a person’s citizenship or renunciation of citizenship may be revoked, the Minister shall provide the person with a written notice that
(a) advises the person of his or her right to make written representations;
(b) specifies the form and manner in which the representations must be made;
(c) sets out the specific grounds and reasons, including reference to materials, on which the Minister is relying to make his or her decision; and
(d) advises the person that the case will be referred to the Court unless the person requests that the case be decided by the Minister.
Representations and request for decision by Minister
(3.1) The person may, within 60 days after the day on which the notice is sent, or within any extended time that the Minister may allow for special reasons,
(a) make written representations with respect to the matters set out in the notice, including any considerations respecting his or her personal circumstances — such as the best interests of a child directly affected — that warrant special relief in light of all the circumstances of the case and whether the decision will render the person stateless; and
(b) request that the case be decided by the Minister.
Consideration of representations
(3.2) The Minister shall consider any representations received from the person pursuant to paragraph (3.1)(a) before making a decision.
Notice of decision
(5) The Minister shall provide his or her decision to the person in writing.
B. Jurisprudence
(1) Standard of review
[20] The parties agree that the appropriate standard of review of the RPD’s Decision is reasonableness. I agree (Xu v Canada (Citizenship and Immigration), 2021 FC 1102 [Xu] at paras 33-42; Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at paras 10, 16-17).
[21] Reasonableness is a deferential, but robust, standard of review (Vavilov at paras 12-13). The reviewing court must determine whether the decision under review, including both its rationale and outcome, is transparent, intelligible and justified (Vavilov at para 15). A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker (Vavilov at para 85). Whether a decision is reasonable depends on the relevant administrative setting, the record before the decision-maker, and the impact of the decision on those affected by its consequences (Vavilov at paras 88-90, 94, 133-135).
[22] For a decision to be unreasonable, the applicant must establish the decision contains flaws that are sufficiently central or significant (Vavilov at para 100). Not all errors or concerns about a decision will warrant intervention. A reviewing court must refrain from reweighing evidence before the decision-maker, and it should not interfere with factual findings absent exceptional circumstances (Vavilov at para 125). Flaws or shortcomings must be more than superficial or peripheral to the merits of the decision, or a “
minor misstep” (
Vavilov at para 100). While a decision-maker is not required to respond to every line of argument or mention every piece of evidence, a decision’s reasonableness may be called into question where the decision exhibits a “failure to meaningfully grapple with key issues or central arguments”
(Vavilov at para 28).
(2) Interpretation of subsections 10(3.1) and 10(3.2) of the Act
[23] Subsections 10(3.1) and 10(3.2) of the Act were interpreted thoroughly in Xu. In Xu, the applicant (then a Canadian citizen) admitted she had obtained permanent residency through misrepresentation, but argued her personal circumstances warranted special relief. The Delegate did not believe any arguments of hardship to be suffered if the Applicant was to be removed to their home country of China, referred to more generally as “foreign hardship”
, were relevant to the exercise of discretion under subsection 10(3.2) of the Act.
[24] The Court held that the applicant in Xu conflated the “personal circumstances … that warrant special relief in light of all the circumstances of the case”
under paragraph 10(3.1)(a) of the Act with “humanitarian and compassionate considerations warrant[ing] special relief in light of all the circumstances of the case”
in paragraph 67(1)(c) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] (Xu at para 48). First, the Court found that “personal circumstances”
and “humanitarian and compassionate considerations”
have distinct meanings, given the intentional choice of wording chosen by Parliament (Xu at para 49). Second, despite the similarities in factors and application in law, these considerations have different purposes (Xu at para 63).
[25] Delegates, when encountering humanitarian and compassionate considerations, consider foreign hardship because it is in the context of an appeal of an inadmissibility determination that has resulted in a removal order. The Court in Xu determined in that case, like the Respondent pointed out in this case, a decision to revoke Canadian citizenship does not entail a requirement to leave Canada, nor is it an inadmissibility finding or a removal order (Xu at para 63).
[26] After determining the distinction between humanitarian and compassionate considerations and personal circumstances, the Court reinforced that consideration of foreign hardship is irrelevant under subsections 10(3.1) and 10(3.2) of the Act because, even if citizenship is revoked, it does not entail removal from Canada (Xu at para 64).
[27] This Court has previously held that provisions of the Act should not be conflated with those of the IRPA, and that the Delegate is to consider the Applicant’s personal circumstances only with a view to whether to grant relief from revocation of citizenship (Gucake v Canada (Citizenship and Immigration), 2022 FC 123 [Gucake] at paras 52-54).
(3) Personal circumstances and consideration of the best interests of children
[28] In Gucake, as in this case, submissions were made regarding the best interest of the children of the Applicant, however and also as in this case, these submissions were focused primarily on the possible impact on the children if the Applicant is removed (Gucake at para 62). The Delegate determined such considerations were premature, and more properly addressed in any future removal proceedings (Gucake at para 62). The proposition of Gucake is that the appeal of a revocation decision is not the appropriate time for consideration of the best interests of children.
[29] In Semana v Canada (Citizenship and Immigration), 2016 FC 1082 [Semena], the Court determined “there is nothing unreasonable in the [Delegate’s] conclusion that establishment under illegal circumstances should not be rewarded”
(Semena at para 48). Justice Gascon went further to say “it is trite law that persons ought not to benefit from their circumvention of immigration laws and their wanton duplicity in their immigration applications”
(Semena at para 48). The proposition of Semena is that, generally, personal circumstances that could warrant relief from revocation of citizenship are not circumstances which arise from the applicant’s benefit of establishing themselves in Canada under illegal circumstances.
[30] While Semana was in the context of a claim for humanitarian and compassionate considerations under the IRPA, the Court in Gucake considered Semana and applied its reasoning. When mixed with the fact that the applicant in Gucake did not come forward with their misrepresentation until they were served with a notification letter, as in this case, the Court determined that the personal circumstances alleged by the applicant was “deserving of little weight”
(Gucake at para 72). The applicant did argue, as the Applicant in this case does, that disregard for the personal circumstances they have put forward “would have the effect of hollowing out the protection that was deliberately enacted by Parliament”
but the Court agreed with the respondent that the establishment factors are outweighed by the seriousness of the misrepresentation and the failure to come forward (Gucake at paras 67-74).
VI. Analysis
[31] As a starting point, at the hearing, the Applicant asked this Court to consider the argument of assessing the impact of rendering the Applicant a foreign national in Canada if his citizenship is revoked. The Respondent’s submission was that this issue was not before the Delegate and so it cannot be considered now on judicial review, and thereby this Court cannot consider the hardships resulting from removal from Canada because removal proceedings have not been commenced against the Applicant, so these considerations would be premature at any rate. I agree with the Respondent. This issue was not before the Delegate and, at any rate, as removal proceedings have not been commenced against the Applicant, it would be premature to embark on a hypothetical analysis of theoretical hardships the Applicant does not presently face.
A. Did the Delegate err by making a decision that lacked rationality and ignored the evidence with regards to the best interests of the Applicant’s children?
[32] The Applicant’s argument on this issue is centered on the fact the Delegate attributed little weight to Adambawa’s arguments concerning the difficulties the children would face in Sri Lanka because the children are not at risk of being removed from Canada. In particular, after conceding in its submissions that the “Applicant recognizes that his removal from Canada is not guaranteed”
, the Applicant argues that applying for a Temporary Resident Permit, permanent residence under humanitarian and compassionate considerations, a stay of removal, or a pre-removal risk assessment would be time-consuming. In the interim, Adambawa would be stuck without authorization to work and therefore unable to provide financially for his family. The Applicant’s submission is that the Delegate came to an illogical conclusion in failing to consider the best interests of Adambawa’s children if he remained in Canada but was unable to work.
[33] Unfortunately, after reviewing the record before the Delegate, it is clear that this argument of being stuck without authorization to work and therefore unable to provide financially for his family was never put to the Delegate. Neither has the Applicant offered any evidence or case law, either to the Delegate or before this Court, alleging to support a concern for Adambawa’s ability to stay in Canada but unable to work after his citizenship is revoked. The only framing of the concern for the best interests of Adambawa’s children was that “[i]t would not be in the best interests of [Adambawa’s] Canadian citizen children for the applicant to be removed from Canada as set out below…”
The fact is it cannot be unreasonable for a decision-maker to not consider arguments the Applicant never made before them, and retroactively attempting to reframe those arguments to make it a reviewable error for the decision-maker to have not considered such arguments.
[34] The Delegate’s decision to attribute little weight to Adambawa’s arguments concerning the difficulties the children would face in Sri Lanka because the children are not at risk of being removed from Canada is reasonable. There is no reviewable error in this issue.
B. Did the Delegate make an unreasonable decision by failing to give proper consideration to the extenuating circumstances underlying the Applicant’s misrepresentation?
[35] The Applicant attempts to misrepresent Justice Norris’ finding in Xu, alleging that his statement that incorporating subsections 10(3.1) and 10(3.2) “is meant to include a humane and compassionate assessment of all the circumstances of the case”
means this analysis must take the same approach as reviewing decisions for humanitarian and compassionate considerations under the IRPA. This is a conflation of the respective issues that cannot succeed for two reasons. First, it ignores the distinction Justice Norris drew at paragraphs 63 though 69 of Xu between humanitarian and compassionate considerations under the IRPA and considerations in citizenship revocation proceedings under the Act. Second, and generally following Justice Norris’ logic throughout Xu, my understanding of the governing legislation and purposes of these distinct proceedings are fundamentally different, and simply equating the two would be an error of law.
[36] The judicial review was granted in Xu because the Delegate’s reasons “largely dismissed [the applicant’s mitigating circumstances] in a perfunctory fashion”
, only noting the applicant appeared to have taken responsibility for their actions and may have acted out of desperation without any further explanation (Xu at para 76).
[37] In this case, the Delegate went a step further. The Delegate noted that, while Adambawa’s submissions claimed he was extremely remorseful for his series of misrepresentations, “it was not until revocation proceedings were initiated”
that Adambawa confessed to his false identity. Throughout their reasons, the Delegate identified every individual instance that Adambawa had to provide truthful information regarding his false identity. The Delegate does note Adambawa’s “feelings of great personal risk in [Sri Lanka]”
, but that Adambawa had several opportunities to come forward and let decision-makers accurately assess his applications. As such, and unlike Xu, the Delegate did go further than simply noting Adambawa’s remorse. Underlying all of this, the Delegate also notes that the Applicant agreed in its submissions that he believed he would have been successful in applying for refugee protection under his true identity if he had been truthful about his concerns about the civil war between the LTTE and Sri Lankan authorities.
[38] The Delegate also considered the Applicant’s submissions on its establishment in Canada, however their consideration attributed little weight to these arguments because his establishment was only possible because Adambawa was benefiting from his misrepresentation. One way or another, this admission in its submissions casts a long shadow of doubt on the Applicant’s circumstances. It acknowledges that, in addition to knowingly and continuously committing several instances of identity fraud, Adambawa knew at least since his refugee protection application in August of 2004 that the fraud was unnecessary but chose to continue his deception anyway. Through this admission, Adambawa acknowledges that, somewhere along this timeline, he was no longer at risk of the circumstances motivating the original misrepresentation because his claim for refugee protection would likely have been approved anyway, but he nonetheless continued his identity fraud in several applications for citizenship and passports until he was caught over a decade later.
[39] Not only did the Delegate adequately consider Adambawa’s mitigating circumstances in a reasonable manner, but Adambawa’s own submissions to the Delegate, which the Delegate considered, undermine the benefit his personal circumstances would offer to mitigate the misrepresentation by acknowledging that, at some point, the misrepresentation was no longer necessary.
[40] In light of these considerations, the Delegate’s consideration of Adambawa’s mitigating factors underlying the misrepresentation is reasonable. There is no reviewable error in this issue.
C. Does the Respondent’s treatment of “personal circumstances” empty subsections 10(3.1) and 10(3.2) of meaning?
[41] As found in Gucake, the treatment of the Applicant’s personal circumstances is not unreasonable where the circumstances alleged allow the Applicant to “[enjoy] the benefits of their misrepresentation”
(Gucake at para 72).
[42] The consideration of personal circumstances is to be done “with a view to whether or not to grant relief from revocation of citizenship”
(Gucake at para 54). It is an opportunity to provide reasons that an applicant’s circumstances warrant keeping their citizenship. It is not an opportunity, especially without evidence of a removal order or the potential for one, to prematurely argue against potential grounds for removal. At paragraphs 55 to 59 of Gucake, the Court rejected the argument that the phrase “all the circumstances of the case”
found in subsection 10(3.1)(a) of the Act included the consideration of foreign hardship upon removal.
[43] While subsection 10(3.1)(a) of the Act affords an individual the opportunity to make submissions regarding his personal circumstances, this opportunity does not negate the potential impact of the misrepresentation itself in the personal circumstances analysis. As held by Justice Norris in Xu at para 73:
[73] Under the legal framework adopted by Parliament, loss of Canadian citizenship is not automatic upon a finding of misrepresentation. Rather, the decision maker must determine whether this consequence is warranted in all of the circumstances of the case. Central to this determination is whether, in all of the circumstances, revoking a person’s citizenship when it has been obtained by misrepresentation is a proportionate response to the misconduct that is necessary to protect the integrity of the immigration and citizenship processes. To be clear, this is not a punitive decision. Nevertheless, the seriousness of the misconduct and any circumstances that may mitigate the person’s degree of responsibility for the misconduct must be considered.
[Our emphasis]
[44] After carefully considering the Decision, I agree with the Respondent that, in the present case, the Delegate considered the misrepresentation, carefully analyzed and weighed all the personal circumstances, and reasonably held that Adambaya’s establishment gained because of his misrepresentation should not be weighed very highly in the assessment of whether his citizenship should be revoked. The Applicant seeks the Court’s intervention to reweigh the evidence, which this Court must abstain from doing under judicial review.
[45] The seriousness of the Applicant’s misrepresentation, combined with the conscious effort to defraud the Canadian immigration system, not once but twice by acquiring and holding permanent residency under refugee protections, citizenships, and passports under both his true and fraudulent identities, dwarfs the Applicant’s plea for relief on the basis that he has been established (illegally) in Canada for decades. I agree with the Respondent that the Delegate considered the Applicant’s personal circumstances and came to a reasonable conclusion in-line with the law and jurisprudence of this Court that the Applicant’s personal circumstances, including his establishment in Canada, do not warrant relief in light of his persistent duplicity, and that the Delegate’s conclusion is owed deference. The treatment of the Applicant’s personal circumstances does not leave subsections 10(3.1) and 10(3.2) of the Act devoid of meaning, especially when considering the policy consequences of granting relief when an applicant is benefiting exclusively from illegal circumstances. There is no reviewable error in this issue.
VII. Conclusion
[46] For the foregoing reasons, this application for judicial review is dismissed.
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