In the unusual case below, there were a series of administrative errors by Citizenship officials. The Federal Court held that the legislation contemplated this case and that to hold otherwise would lead to an "absurdity" where a person who was not legally entitled to citizenship would enjoy that valuable privilege. Note that the court indicates that the applicant "did not return phone calls" when officers discovered the error and wanted to correct it. Of course...
The better question, however, is what kind of incompetence prevails at Citizenship and Immigration, a department that does not distinguish itself for efficiency and thoroughness?
Afzal v. Canada (Minister of Citizenship and
Immigration)
Between
Shaheen Afzal, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2014] F.C.J. No. 1084
2014 FC 1028
Docket: T-2042-13
Federal Court
Toronto, Ontario
Rennie J.
Heard: August 13, 2014.
Judgment: October 29, 2014.
(35 paras.)
JUDGMENT AND REASONS
1 RENNIE
J.:-- On September 26, 2013, the applicant attended before a citizenship judge
in Hamilton, Ontario, swore the oath of allegiance to Her Majesty Queen
Elizabeth II and committed to faithfully observe the laws of Canada. She was
issued a certificate of citizenship and left at the conclusion of the ceremony
a Canadian citizen. Or did she?
2 Previously,
the applicant had failed both of the mandatory pre-conditions to citizenship
established by section 5(1)(d) and (e) of the Citizenship
Act (RSC, 1985, c C-29) (the Act):
· Grant of citizenship
· 5.
(1) The Minister shall
grant citizenship to any person who
[...]
· (d)
has an adequate
knowledge of one of the official languages of Canada;
· (e)
has an adequate
knowledge of Canada and of the responsibilities and privileges of
citizenship;
* * *
· Attribution de la citoyenneté
· 5.
(1) Le ministre attribue
la citoyenneté à toute personne qui, à la fois :
[...]
· d)
a une connaissance
suffisante de l'une des langues officielles du Canada;
· e)
a une connaissance
suffisante du Canada et des responsabilités et avantages conférés par la
citoyenneté;
3 On
the written test, the applicant scored 2/6 on the language component and 8/20
on the knowledge component. Her scores did not improve on her subsequent
appearance before the citizenship judge, receiving 0/6 on the language
component and 4/20 on the knowledge component. The citizenship judge checked
the boxes indicating that the applicant did not meet the mandatory requirements
of section 5(1)(d) and (e). In the "Reasons" section the judge wrote:
· Applicant signed ICES consent form. The Applicant failed the language
hearing 0/6 and does not comply with paragraph 5(1)(d) of the Citizenship Act.
The Applicant failed the knowledge hearing 4/20 and does not comply with
paragraph 5(1)(e) of the Citizenship Act.
4 No
recommendation was made by the citizenship judge to the Minister under section
5(3) of the Act that the Minister
grant citizenship on compassionate grounds.
5 There
ensued a series of administrative errors. The citizenship judge checked the
wrong "Decision" box, indicating that the application for Canadian
citizenship was granted. The next day, on September 5, 2013, the departmental
citizenship official responsible for processing the file signed the box
"Decision seen" and checked the box "Citizenship Granted
5(1)," compounding the original error. A few days later, the applicant
received a notice to appear for a citizenship ceremony and on September 26,
2013, she took the Oath of Citizenship and was given a citizenship certificate.
6 Immediately
after the ceremony however, citizenship officer Jean-Simon Cantin, who served
as clerk for the citizenship ceremony (and was not the officer who checked the
"Decision seen" box), observed the error. He immediately called the
applicant at her home and left a message with her son. The next day, officer
Cantin called the applicant on her cellular phone, again leaving a message. The
calls were not returned.
7 On
or about November 22, 2013, the
Registrar concluded that the applicant had been issued the certificate in
error, and pursuant to section 26(3) of the Citizenship
Regulations (SOR/93-246) (Regulations), cancelled the citizenship certificate. Section 26(3) of the Regulations provides:
· 26 (3) Where the Minister has determined that the holder of a
certificate of naturalization, certificate of citizenship, miniature
certificate of citizenship or other certificate that contains the holder's
photograph, or certificate of renunciation, issued or granted under the Act or
prior legislation or any regulations made thereunder is
not entitled to the certificate, the Registrar shall cancel the certificate.
· (emphasis added)
* * *
· 26 (3) Lorsque le ministre a déterminé que le titulaire d'un certificat
de naturalisation, d'un certificat de citoyenneté, d'un certificat de
citoyenneté petit format ou autre certificat de citoyenneté portant sa
photographie, ou d'un certificat de répudiation délivré ou attribué en vertu de
la Loi ou de la législation antérieure ou en application de leurs règlements n'a pas droit à ce certificat, le greffier annule le certificat.
· (je souligne)
8 In
sum, the applicant received a highly valued privilege which the Minister seeks
to take back, and the question framed for decision is whether the Regulations provide the authority to do so.
The applicant contends that the Regulations do not confer in the Registrar the authority to revoke a certificate
of citizenship. The Regulations
are not a collateral mechanism to supplement the statutory grounds under which
citizenship, once obtained, can be lost. Section 7 in Part II of the Act, makes this clear:
· No loss except as provided
· 7.
A person who is a
citizen shall not cease to be a citizen except in accordance with this Part or
regulations made under paragraph 27(j.1).
* * *
· Perte de la citoyenneté
· 7.
Le citoyen ne peut
perdre sa citoyenneté que dans les cas prévus à la présente partie ou aux
règlements pris en vertu de l'alinéa 27(j.1).
9 The
applicant also says that the cancellation was unlawful as the decision was made
without notice to her and in breach of procedural fairness and must be set
aside.
10 Before
considering these arguments, I turn to the consequences of the failure of the
Minister to appeal the decision of the citizenship judge. No notice of appeal
from the decision of the citizenship judge was filed even though the Minister
and his officials had knowledge of the error within the 60-day appeal period
provided by section 14(5). The applicant contends that, having missed the
appeal period, the Registrar cannot, through the device of an administrative,
regulatory provision, collaterally attack the decision of the citizenship
judge.
11 In
my view, this argument is a distraction from the central question of the
interpretation of the statute and regulations. Subsequent to the issuance of
the certificate, no appeal could be taken from the citizenship judge's
decision. That decision was spent, replaced by the oath and certificate. It
must be remembered that the error was discovered after the certificate was
issued and the oath taken. It was too late to appeal -- not because 60 days had
expired, which it had not, but because the factual substratum of the appeal had
evaporated. The foundation of the applicant's claim or proof of citizenship was
no longer the citizenship judge's decision, but rather it was the certificate
of citizenship.
I. Issues and Standard of Review
12 The
central question before the Court is the resolution of the tension or interface
between section 7 of the Act and
section 26(3) of the Regulations.
The Regulations upon which the
Registrar relied to cancel the certificate are authorized by section 27 of the Act. Section 27(j) and (k) of the Act provide:
· Regulations
· 27.
The Governor in Council
may make regulations
[...]
· (j)
providing for the
surrender and retention of certificates of citizenship, certificates of
naturalization or certificates of renunciation issued or granted under this Act
or prior legislation or any regulations made thereunder if there is reason to believe that the holder thereof may not be
entitled thereto or has contravened any of the
provisions of this Act;
[...]
· (k)
providing for the
surrender and cancellation of certificates referred to in paragraph (j) where
the holder thereof has ceased to be entitled thereto;
· (emphasis added)
* * *
· Règlements
· 27.
Le gouverneur en conseil
peut, par règlement
[...]
· j)
régir la restitution et
la rétention des certificats de citoyenneté, de naturalisation ou de
répudiation délivrés en vertu de la présente loi ou de la législation
antérieure ou en application de leurs règlements lorsqu'il
y a des raisons de croire que leur titulaire n'y a peut-être pas droit ou a enfreint la présente loi;
[...]
· k)
régir la restitution et
l'annulation des certificats mentionnés à l'alinéa j) lorsque leur titulaire a
cessé d'y avoir droit;
· (je souligne)
13 The
core of the applicant's position is that in section 7, Parliament directed its
mind to the circumstances under which citizenship could be lost and expressly
prescribed the extent to which citizenship could be lost using regulatory
authority. Neither of the exceptions in section 7 (misrepresentation or
material disclosure) nor the circumstances contemplated by regulation 27(j.1)
(born outside of Canada to a Canadian but did not become a citizen prior to
February 15, 1977) are engaged in this case.
14 The
central question, being one of statutory interpretation, is assessed against a
correctness standard of review. Whether there was a breach of procedural
fairness is also assessed against a standard of correctness, but the
determination by the Registrar that the applicant's citizenship was granted as
a result of administrative error involves applying a legal standard to a set of
facts. It is therefore a question of mixed fact and law and is reviewable on a
standard of reasonableness.
II. The Statutory Scheme Governing Citizenship
15 The
foundation of Canadian citizenship is statutory. There is no independent or
free-standing right to citizenship except as accorded by the provisions in Part
I of the Act -- The Right to Citizenship. Largely writ,
citizenship can be acquired through birth (section 3(1)(a) and (b)) or, as in
this case, consequent to permanent residency (section 3(1)(c)). Part II of the Act - Loss of Citizenship - authorizes
revocation of citizenship pursuant to subsection 10(1) where the Governor-in-Council
is satisfied, on the basis of a report from the Minister, that the person has
obtained citizenship by fraud or misrepresentation. Administrative error is not
one of the enumerated grounds in Part II.
16 In
the case of a permanent resident seeking Canadian citizenship, the specific
statutory pre-conditions of the Act must be met. Those conditions require demonstration of a certain
level of linguistic competence in either of Canada's official languages and an
adequate knowledge of Canada's social, civic and political norms. These
competencies must be established before citizenship can be granted.
17 Section
14(1) provides that a citizenship application "shall be considered by a
citizenship judge who shall...determine whether or not the person who made the
application meets the requirements of this Act and the regulations". Under
section 14(2), the citizenship judge shall approve or not approve the
application. As noted, section 14(5) allows the Minister or the applicant to
appeal the decision of the citizenship judge within sixty days.
18 Section
12 in Part IV of the Act - Certificate of Citizenship - provides that
where an application for citizenship under section 5 is approved the Minister
shall issue the certificate.
· Application for certificate of citizenship
· 12.
(1) Subject to any
regulations made under paragraph 27(i), the Minister shall issue a certificate
of citizenship to any citizen who has made application therefore.
· Issue of certificate
· (2)
When an application under
section 5 or 5.1 or subsection 11(1) is approved, the Minister shall issue a
certificate of citizenship to the applicant.
· When effective
· (3)
A certificate issued
pursuant to this section does not take effect until the person to whom it is
issued has complied with the requirements of this Act and the regulations
respecting the oath of citizenship.
* * *
· Demandes émanant de citoyens
· 12.
(1) Sous réserve des
règlements d'application de l'alinéa 27i), le ministre délivre un certificat de
citoyenneté aux citoyens qui en font la demande.
· Délivrance aux nouveaux citoyens
· (2)
Le ministre délivre un
certificat de citoyenneté aux personnes dont la demande présentée au titre des
articles 5 ou 5.1 ou du paragraphe 11(1) a été approuvée.
· Entrée en vigueur
· (3)
Le certificat délivré en
application du présent article ne prend effet qu'en tant que l'intéressé s'est
conformé aux dispositions de la présente loi et aux règlements régissant la
prestation du serment de citoyenneté.
III. The Applicant's Perspective on the Statutory
Scheme
19 The
applicant contends that she is a citizen, has the certificate to prove it, and,
further, that in section 7 Parliament expressly addressed the only
circumstances under which citizenship, once obtained, can be lost. The Regulations contemplated by section 27 of the Act are necessarily confined to the
implementation and support of those circumstances in Part II of the Act pertaining to the loss or revocation of
citizenship, or where the certificate is required for civil or criminal
proceedings or as evidence in an investigation. Further, the language of
section 27(j) of the Act "if
there is reason to believe that the holder thereof may not be entitled
thereto" cannot constitute an independent authority to revoke citizenship,
as Parliament has expressly considered this in sections 7 and 10.
20 To
elaborate, the applicant's perspective is that section 26(3) of the Regulations has to be interpreted in
conjunction with sections 7, 12(2), 14(1) and (14(5) of the Act, and if done so, section 26(3) of the Regulations does not give the Registrar the
power to cancel a citizenship certificate that was issued after an application
for citizenship was approved by a citizenship judge. More bluntly, the
applicant asserts that the respondent is relying on section 26(3) of the Regulations to do what the Act does not allow. Section 12 of the Act requires that citizenship be granted, and
Parliament has prescribed and limited the means of recourse to either an appeal
or the launch of revocation proceedings.
21 In
sum, the applicant's argument is that the finality contemplated by the
statutory scheme cannot, in the absence of legislative authority, be set aside
simply because the Minister wishes the result were otherwise. To interpret the Regulations so broadly would render the scheme
meaningless, as the certificate could be revoked simply by administrative
action of the Registrar who came to the view that the applicant was not
entitled to the certificate. The legislation contemplates a right of appeal
(now a right to seek leave to commence judicial review) to the Federal Court
and revocation proceedings. The statute itself provides that the Minister shall issue the certificate and, similarly,
that if not content with the decision of the citizenship judge, the Minister
may appeal.
IV. Analysis
A. The Statutory Foundation
for Cancellation by Regulation
22 Any
consideration of the relationship between statutes and regulations begins with
two principles. First, it is axiomatic that the words of an act are to be read
in their entire context and in their grammatical and ordinary sense
harmoniously with the scheme of the act, the object of the act, and the
intention of Parliament Second, the Regulations are subordinate legislation, and as such cannot derogate from or be
inconsistent with the statute. As Professor Ruth Sullivan explains in Statutory Interpretation, 2nd ed (Toronto: Irwin
Law, 2007) at page 312, "the paramountcy of statutes over delegated
legislation operates as a presumption" and in cases of conflict, "the
statute is presumed to prevail". The Regulations cannot take away that which the statute has granted.
23 To
this extent the applicant's argument is well-founded. Statutes cannot be undone
by subordinate legislation. In order to revoke by regulation, a citizenship
certificate, granted by statute, there must be a foundation in the statute.
There is such a foundation. Indeed, there are two: section 12(3) and section
27(j) of the Act. I turn first to
section 12(3).
24 Section
12(3) provides:
· When effective
· 12 (3) A certificate issued pursuant to this section does not take
effect until the person to whom it is issued has complied with the requirements
of this Act and the regulations respecting the oath of citizenship.
* * *
· Entrée en vigueur
· 12 (3) Le certificat délivré en application du présent article ne
prend effet qu'en tant que l'intéressé s'est conformé aux dispositions de la
présente loi et aux règlements régissant la prestation du serment de
citoyenneté.
25 Subsection
12(3) provides a legislative foundation for the cancellation of a certificate
issued in error. A certificate, even if issued, is of no effect where the
conditions precedent to citizenship have not been met. The applicant's
citizenship was not revoked and sections 7, 10 and 18 not engaged, as the
applicant never had citizenship. The requirements of the Act had not been fulfilled.
26 I
turn to the second legislative foundation which supports the regulatory action.
To repeat, section 27 authorizes regulations:
· Regulations
· 27.
The Governor in Council
may make regulations
[...]
· (j)
providing for the
surrender and retention of certificates of citizenship, certificates of
naturalization or certificates of renunciation issued or granted under this Act
or prior legislation or any regulations made thereunder if there is reason to believe that the holder thereof may not be
entitled thereto or has contravened any of the
provisions of this Act;
[...]
· (k)
providing for the
surrender and cancellation of certificates referred to in paragraph (j) where
the holder thereof has ceased to be entitled thereto;
· (emphasis added)
* * *
· Règlements
· 27.
Le gouverneur en conseil
peut, par règlement
[...]
· j)
régir la restitution et
la rétention des certificats de citoyenneté, de naturalisation ou de
répudiation délivrés en vertu de la présente loi ou de la législation
antérieure ou en application de leurs règlements lorsqu'il
y a des raisons de croire que leur titulaire n'y a peut-être pas droit ou a enfreint la présente loi;
[...]
· k)
régir la restitution et
l'annulation des certificats mentionnés à l'alinéa j) lorsque leur titulaire a
cessé d'y avoir droit;
· (je souligne)
27 Sections
27(j) and (k) contemplate two circumstances where a certificate of citizenship
may be cancelled. In this case, the Registrar believed that the applicant was
not entitled to the certificate. That belief had an objective foundation,
rooted in the record before her. The action was purely administrative, and
required no adjudicative assessment, or importantly, re-adjudication of the
substance of the citizenship judge's decision. The authority under the Regulations was used as it was intended, not
to change, vary or substitute a Ministerial decision for the one that was
reached under the Act, rather to
ensure that the outcome conformed with the adjudicative process contemplated by
the Act itself. Viewed in this
light regulation 26(3) is analogous to Federal Court Rule 397(1)(a) which
allows the Court to reconsider an order where the order does not accord with
the reasons given. That is precisely what occurred here. Rules of practice
applicable to superior courts contain mechanisms to address administrative
errors and it is not surprising to see an analogous provision in legislation
like the Citizenship Act.
28 To
read section 7 as to trump section 27 of the Act would produce two absurd results. First, the valued right of
citizenship would be given to someone who was not, as a matter of fact or as a
matter of law, entitled to it. Parliament's intention that all Canadians
possess a minimal degree of linguistic ability and civic awareness would be
thwarted. Secondly, the procedure triggered to remedy the administrative error,
namely that of a ministerial report and Cabinet consideration and adjudicative
review, would be entirely disproportionate to the nature of the issues
underlying cancellation of the certificate.
29 Further,
to borrow from Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27 at para 23 a "label of absurdity" can be
attached to interpretations that render some part of the statute
"pointless or futile". The argument advanced by the applicant with
respect to the scope of section 7 neutralizes both section 12(3), the purpose
of which is to provide a fail-safe measure in circumstances such as these and
section 27(j), which contemplates that citizenship certificates might be issued
in circumstances where the requirements of the Act were not met. This is not a case where citizenship, once lawfully
granted, is lost or revoked. Here, the applicant never had citizenship. That is
the effect of sections 12(3) and 27(j).
30 Section
27 of the Act contemplates
cancellation in situations such as those in this case where a certificate has
been issued through administrative error as well as in exigent or emergent
circumstances. Parliament, in enacting section 27, understood the necessity of
regulations to give effect to the Act and its objectives. This interpretation of section 27(j) and (k) is
a plain and obvious reading of the statute, but also is consistent with the
obligation under section 12 of the Interpretation Act (RSC, 1985, c I-21) to read the statute with a "fair, large and
liberal construction and interpretation as best ensures the attainment of its
objects". This interpretation also aligns with the principle of achieving
"harmony, coherence, and consistency" within and between statutes (Bell ExpressVu Limited Partnership v Rex, 2002
SCC 42 at para 27, citing R v Ulybel Enterprises Ltd., 2001 SCC 56 at para 52). No section of the statute is negated, and
there is coherence between sections 12(3) and 27 of the Act and section 26(3) of the Regulations.
31 In
sum, section 26(3) of the Regulations is authorized by section 27(j) and (k) of the Act. Regulation 26(3) is neither inconsistent
with, nor a derogation from, any right created by the Act itself; rather section 26(3) implements, administratively, the intent
of Parliament as reflected in sections 12(3) and 27(j) and (k) of the Act. This interpretation also ensures that the
privilege of Canadian Citizenship is granted only as intended by Parliament.
32 Before
concluding, I turn to Stanizai v Canada (Minister of
Citizenship and Immigration), 2014 FC 74, and in
particular in paragraph 44 of the decision, where Justice Anne Mactavish states
that "an error within the offices of the respondent does not have the
effect of overriding the statutory requirements of the Citizenship
Act and conferring a discretion on the Minister to
withhold citizenship that he would not otherwise have." This decision is
relied on by the applicant, but it is entirely distinguishable on its facts. In
Stanizai, the applicant met all
the statutory requirements for citizenship but the Minister nevertheless
delayed in granting citizenship. The applicant in the present case did not meet
the statutory requirements for citizenship. Further, Stanizai did not involve the use of section 26(3) of the Regulations to cancel the citizenship
certificate. The decision does not advance the applicant's position.
33 I
turn now to the applicant's alternative argument, namely that the cancellation
breached the principles of procedural fairness. The standard of review for this
is correctness.
34 The
Court of Appeal, in Valeta v Canada (Minister of
Citizenship and Immigration), 2006 FCA 138, made clear
its view as to the application of the principles of procedural fairness in
matters dealing with citizenship. Regardless of the scope and extent to which
those principles apply, and in respect of which aspect of the process they
might apply, the applicant in this case had notice that there was an issue with
her citizenship certificate. The obligation to provide notice and the duty of
fairness discharged by the two calls to the applicant by officer Cantin. The
applicant chose not to avail herself of further information that would have
been forthcoming had she returned the calls. A party cannot turn a blind eye,
or a deaf ear, to the information that is made available to her and then plead
lack of notice and breach of procedural fairness.
35 In
any event, even if there was a breach of procedural fairness, I would withhold
relief. Relief under section 18.1 of the Federal Courts
Act is equitable and discretionary and can be withheld
where setting aside the decision would not affect the ultimate result; Mobil Oil Canada Ltd. v Canada-Newfoundland Offshore Petroleum Board, [1994] 1 SCR 202, at paras 51, 52. In this case, the applicant
failed both of the mandatory requirements established by statute. To set aside
the decision would serve no purpose, as the applicant would still be ineligible
for citizenship. Remedies that serve no purpose will not be granted.
JUDGMENT
THIS COURT ORDERS that the
application for judicial review is dismissed with costs.
RENNIE J.
