Budlakoti v. Canada (Minister of Citizenship and
Immigration)
Between
Deepan Budlakoti, Appellant, and
Minister of Citizenship and Immigration, Respondent
Deepan Budlakoti, Appellant, and
Minister of Citizenship and Immigration, Respondent
[2015] F.C.J. No. 697
2015 FCA 139
Docket: A-457-14
Federal Court of Appeal
Ottawa, Ontario
Stratas, Ryer and Rennie JJ.A.
Heard: May 26, 2015.
Judgment: June 4, 2015.
Docket: A-457-14
Federal Court of Appeal
Ottawa, Ontario
Stratas, Ryer and Rennie JJ.A.
Heard: May 26, 2015.
Judgment: June 4, 2015.
(74 paras.)
Immigration law --
Naturalization or citizenship -- Application for grant of citizenship --
Requirements for grant of citizenship -- Citizenship by birth -- Appeal by
Budlakoti from dismissal of application for declaration of citizenship
dismissed -- Appellant was born in Canada in 1989 to Indian national --
Appellant was issued birth certificate and passport -- In 2010, appellant was
sentenced for weapons and drug offences, Board found he was not a citizen and
issued deportation order -- Doctrine of issue estoppel applied to bar appellant
from re-litigating issue of parents' employment at time of his birth --
Appellant had other forms of relief he must first pursue -- Appellant had not
shown why he could not apply for Canadian or Indian citizenship.
Appeal by Budlakoti from the dismissal of his
application for a declaration that he was a Canadian citizen and was not
subject to the Immigration and Refugee Protection Act. The appellant was born
in Canada in 1989 to Indian national who were employed in Canada with the High
Commission of India. The appellant and his parents became permanent residents
of Canada in 1992. In 1995, the appellant's parents applied for, and were
granted citizenship. The appellant had an Ontario birth certificate that had
been issued two Canadian passports. In 2010, the appellant was sentenced to
three years' imprisonment for drug and weapons offences. He had previously been
convicted of break and enter. Citizenship and Immigration Canada determined
that the appellant was never a Canadian citizen and declared him inadmissible
on the basis of serious criminality. The Minister applied for an order for the
Board permitting the appellant's removal from Canada. The appellant opposed the
application and submitted that he was a Canadian citizen and could not be
removed. The Minister disagreed, arguing that the appellant's parents were
Indian nationals and employees of the Indian High Commission at the time of the
appellant's birth. The Board found that the parents' employment ended after the
appellant's birth. As a result, it found that the appellant was not a citizen
and it issued a deportation order. An application for judicial review of the
decision was dismissed in 2012. A negative PRRA was issued and the appellant
was released from custody on conditions. In 2013, he applied for a declaration
of citizenship and claimed violations of his ss. 6 and 7 Charter rights. The
court dismissed the application finding that there was no legislative authority
for the declaration sought in the absence of other proceedings and that the
application was a collateral attack on the prior Board decision determining
that the appellant was not a citizen. The court further found that the evidence
did not justify the relief sought. The fact that passports were issued was not
determinative of citizenship. It further held that no claim under s. 6 of the
Charter was possible in the absence of citizenship and that no breach of the
applicant's s. 7 Charter rights was established.
HELD: Appeal dismissed. The doctrine of issue
estoppel applied to bar the appellant from re-litigating the issue of the
employment of the appellant's parents. The earlier Board proceedings, now
final, involved the same parties and the same issues. With respect to the
appellant's statelessness, he had other adequate and effective forms of relief
that he must first pursue. The appellant had not shown any reason why he could
not apply for either Canadian or Indian citizenship.
Statutes, Regulations and Rules Cited:
Statutes, Regulations and Rules Cited:
Canadian Charter of Rights and Freedoms, 1982,
R.S.C. 1985, App. II, No. 44, Schedule B, s. 6, s. 7
Citizenship Act, R.S.C. 1985, c. C-29, s. 3(1)(a),
s. 3(2)(a), s. 5(4)
Convention on the Reduction of Statelessness,
Article 1
Federal Courts Act, R.S.C. 1985, c. F-7, s. 18, s.
18.1
Immigration and Refugee Protection Act, S.C. 2001,
c. 27, s. 36(1)(a), s. 45(d), s. 46(1)(d)
Regulation under the Health Insurance Act, R.R.O.
1990, Reg 522, s. 1.4
Appeal From:
Appeal From:
Appeal from a judgment of the Honourable Mr.
Justice Phelan dated September 9, 2014, No. T-1564-13.
REASONS FOR JUDGMENT
· The judgment of the Court was delivered by
1 STRATAS
J.A.:-- The appellant appeals from the judgment dated September 9, 2014 of the
Federal Court (per Justice
Phelan): 2014 FC 855. The Federal Court dismissed the appellant's application
for judicial review. It declined to grant the appellant a declaration that he
is a Canadian citizen.
2 For
the following reasons, I would dismiss the appeal with costs.
A. Basic facts
3 In
1989, the appellant was born in Canada. Both of his parents were Indian
nationals, not Canadian citizens.
4 In
1992, his parents applied to become permanent residents. In their application,
they listed the appellant as a dependent child. Their application was granted
and the appellant and his parents become permanent residents.
5 In
1995, the appellant's parents applied for Canadian citizenship. It is not clear
why the appellant did not apply or why no application was made on his behalf.
In any event, only the parents were granted Canadian citizenship.
6 Years
later, in 2009, while still a permanent resident, the appellant was convicted
of breaking and entering and was sentenced to four months in jail. Later, in
2010, he was convicted of weapons trafficking, possession of a firearm while
prohibited, and trafficking in narcotics. He was sentenced to three years in
jail.
7 In
2011, the Minister of Citizenship and Immigration investigated the appellant's
status. As a result of that, he considered the appellant to be a permanent
resident, not a Canadian citizen. He declared the appellant to be inadmissible
to Canada because of these offences, which constituted "serious
criminality" under the Act: Immigration and Refugee
Protection Act, S.C. 2001, c. 27, paragraph 36(1)(a). Then the Minister applied for an order
from the Immigration and Refugee Board permitting him to remove the appellant
from Canada: Ibid., paragraph
45(d).
8 The
appellant opposed the application. He submitted to the Board that he was a
Canadian citizen and could not be removed. The appellant submitted that he was
born in Canada after February 14, 1977 and, as a result, became a Canadian
citizen under the Citizenship Act, R.S.C. 1985, c. C-29, paragraph 3(1)(a).
9 The
Minister disagreed. He pointed to the fact that at the time of the appellant's
birth his parents, Indian nationals, were employees of Indian High Commission
officials. In that situation, Canadian citizenship does not arise upon birth: Citizenship Act, above, paragraph 3(2)(a). The appellant contested this, alleging
that he was born after his parents' employment with Indian High Commission
officials ended.
10 As
can be surmised from the arguments made to the Board, the Board had to decide a
narrow question of fact: exactly when did the parents' employment end? If it
ended before the appellant's birth, the appellant was a citizen under paragraph
3(1)(a) of the Citizenship Act and so the Board could not
make the removal order. If it ended after the appellant's birth, the appellant
was not a citizen under paragraph 3(1)(a) and the Board could make the removal order. The parties had a full
opportunity to adduce evidence and make submissions on this issue. In these
reasons, I shall call this issue the "employment issue."
11 The
Board ruled against the appellant on the employment issue. It found that the
parents' employment ended after the appellant's birth. So the appellant was not
a citizen under paragraph 3(1)(a)
of the Citizenship Act. As a
result, the removal order became effective: Minister of
Public Safety and Emergency Preparedness v. Budlakoti,
December 8, 2011, File No, 018-B0-00674 (Immigration and Refugee Board); Immigration and Refugee Protection Act,
above, paragraph 45(d).
12 The
appellant applied to the Federal Court for leave to commence a judicial review of
the Board's decision. On May 24, 2012, the Federal Court dismissed the
application.
13 At
this point, the employment issue was finally determined: the appellant was not
a Canadian citizen under paragraph 3(1)(a). Whether the appellant was or could be a Canadian citizen on other
grounds under the Citizenship Act has remained open to this day--the appellant has never explored
this, nor has he ever applied to the Minister under the Citizenship
Act on any grounds.
14 In
2012, while he was still serving his criminal sentence, the appellant received
a negative pre-removal risk assessment under the Immigration
and Refugee Protection Act. By the end of 2012, he had
served his criminal sentence and was transferred to the Customs and Border
Protection Agency for detention pending removal in accordance with the removal
order.
15 In
March 2013, the High Commission of India advised the Minister that it would not
issue a travel document to the appellant because India did not recognize the
appellant as an Indian national. This makes sense. The appellant has never
applied for Indian citizenship. So on the files of the Indian authorities, the
appellant may not have been recorded as an Indian national.
16 In
April 2013, the appellant was released from custody on certain bonds and
conditions. He has remained in Canada to this day, still subject to those
conditions.
B. The appellant brings new proceedings in the
Federal Court
17 On
September 23, 2013, the appellant brought an application for judicial review in
the Federal Court. The Federal Court's judgment in that application is the
subject of this appeal.
18 In
his application, the appellant asked the Federal Court to declare that he is a
Canadian citizen. He advanced two bases for the declaration and the Federal
Court rejected both of them:
The employment issue. The appellant argued the employment issue that the Board had
determined against him. Applying the legal doctrine of issue estoppel, the
Federal Court concluded that the appellant could not relitigate the employment
issue. However, the Federal Court nevertheless considered the factual merits of
the employment issue. After examining the evidence before it--substantially the
same evidence that was before the Board--the Federal Court ruled against the
appellant, finding that he was born while his parents were employees of Indian
High Commission officials (at paragraphs 34-38).
The constitutional
issues. The appellant submitted that he is a stateless
person entitled to Canadian citizenship under sections 6 and 7 of the Canadian
Charter of Rights and Freedoms. In both the Federal Court and in this Court,
the appellant emphasized the importance of citizenship to personhood and one's
sense of belonging and well-being. The appellant also emphasized the
difficulties suffered by the appellant arising from what he alleges the
Canadian government has done to him. At the outset of its reasons on this
point, the Federal Court expressed "grave doubts" about its ability
to proceed in the absence of "other relief or proceedings" (at
paragraphs 29-30) but nevertheless disposed of the constitutional issues on
their merits (at paragraphs 39-49).
C. The appellant's submissions and some necessary
clarifications
19 The
appellant appeals to this Court, submitting that the Federal Court erred on all
issues: issue estoppel did not apply, the Federal Court committed reviewable
error in deciding the employment issue, and the Federal Court should have
determined the constitutional issues in the appellant's favour.
20 Both
in the appellant's written materials and in oral argument, the appellant
asserts certain facts and positions. These facts and positions bear upon the
appeal before us and must be clarified.
21 First,
in his notice of appeal and affidavit the appellant suggests that the Canadian
government revoked his citizenship. This is not true. The Canadian government
has never revoked his citizenship. Rather, at all times, the issue has been
whether the appellant is a Canadian citizen and should be recognized as such,
or, if he is not a Canadian citizen, whether he should be granted Canadian
citizenship.
22 Second,
in both the Federal Court and this Court, the appellant attaches much
significance to the fact that for many years he had been issued a Canadian
passport. No significance can be taken from that: Pavicevic
v. Canada (Attorney General), 2013 FC 997, 20 Imm. L.R.
(4th) 37. If the appellant was not a citizen, he never should have received a
passport. The passport office's error is not a grant of citizenship.
23 Third,
in his memorandum, the appellant submits that he is "stateless." It
is true that as a result of the facts described above, the appellant is not
recognized as a citizen of any country at the present time. But that is not
statelessness in the international law sense. Under Article 1 of the 1961
Convention on the Reduction of Statelessness (acceded to by Canada on July 17,
1978), a person is stateless only where the person does not have national
status or citizenship in Canada and the person is "otherwise
stateless"--i.e., as a
legal or practical matter the person cannot get citizenship or national status
elsewhere. Article 1 of the Convention reads as follows:
A Contracting State
shall grant its nationality to a person born in its territory who would
otherwise be stateless. Such nationality shall be granted:
at birth, by operation
of law, or
upon an application
being lodged with the appropriate authority, by or on behalf of the person
concerned, in the manner prescribed by the national law. Subject to the
provisions of paragraph 2 of this Article, no such application may be
rejected.
· A Contracting State which provides for the grant of its nationality
in accordance with sub-paragraph (b) of this paragraph may also provide for the
grant of its nationality by operation of law at such age and subject to such
conditions as may be prescribed by the national law.
As we shall see, based on the record before us,
the appellant can take steps to apply for citizenship in India and in Canada.
He is not yet stateless.
24 Fourth,
the appellant states that the Canadian government is responsible for his
current situation and so the onus is on the Canadian government, with or
without an order of this Court, to remedy the situation. I do not accept this.
The appellant's situation is due to an unfortunate confluence of factors both
within and beyond his control. There was a time when the appellant, a permanent
resident, could have applied for Canadian citizenship but he did not do so.
Now, due to his criminal conduct, the appellant has lost his status as a
permanent resident and, thus, cannot become a Canadian citizen by that route.
For some time now, the appellant has been aware that Indian authorities do not
consider him to be an Indian national. But the appellant has not tried to apply
for Indian citizenship under Indian law. He has also been aware that the
Minister does not consider him to be a Canadian citizen by virtue of his birth
in Canada, a position now confirmed by the Board. Yet the appellant has not
explored whether another ground for citizenship may be asserted under the Citizenship Act. As we shall see, there is another
ground that the appellant can advance, but to date he has not advanced it.
Finally, it is worth repeating that the Canadian government has not taken away
the appellant's citizenship, nor has it prevented the appellant from applying
for citizenship or national status in India or Canada.
25 Finally,
the appellant has suggested that the appellant is unable to obtain medical care
covered by the Ontario Health Insurance Plan because of his status as a
stateless person. That is not true. The appellant had OHIP coverage as a
permanent resident: section 1.4 of the Regulation under
the Health Insurance Act, R.R.O. 1990, Reg. 552. But he
lost his medical coverage when he lost his permanent resident status. That
happened as a result of the appellant's "serious criminality" arising
from his convictions for breaking and entering, weapons trafficking, possession
of a firearm while prohibited, and trafficking in narcotics: see Immigration and Refugee Protection Act,
paragraphs 45(d) and 46(1)(d).
26 With
these clarifications made and the facts seen as they objectively are, I now
turn to an analysis of the issues.
D. Analysis
Introductory
considerations: the analytical steps to be followed
27 This
is a judicial review with a jumble of issues. We have prior administrative
proceedings before the Board (now concluded and final), two international
jurisdictions in play, multiple arguments on multiple issues on both sides,
future options that may or may not be available to the appellant, difficulties
suffered by the appellant from a situation that was both within and beyond his
control, certain findings of law and fact by the Federal Court, and grave
doubts expressed by the Federal Court about its ability to proceed in the
absence of other relief or proceedings. So what issues should be considered, in
what order, and how?
28 To
answer that, it is useful to keep front of mind the three distinct analytical
steps in any judicial review:
Preliminary objections. Are there any recognized reasons why the judicial review or any
issues in it should not be heard? For example, the matter may be moot, the
matter may not be sufficiently public in nature to be reviewable, the Court may
not have statutory jurisdiction over the matter or the relief sought, the basis
for the review was not raised below but should have been, the judicial review
may be premature, other forums may exist in which the applicant may obtain
adequate and effective relief, or the applicant is impermissibly relitigating
an issue that has been previously decided. This is not a complete list.
The merits of the
judicial review. Bearing in mind the standard of
review, are substantive or procedural grounds for review of an administrative
decision triggered? In the case of other matters that may properly form the
subject of judicial review under sections 18 and 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, is
there a basis upon which a remedial response--e.g., declarations, prohibition orders, orders for mandamus or
procedendo --would be warranted?
Remedies. What remedies are legally available in the circumstances of the
case? Here, it must be remembered that remedies are discretionary. Thus, the
Court must consider whether to exercise its discretion in favour of a remedy,
and if so, what sort of remedy and on what terms, if any?
(See generally Canada
(National Revenue) v. JP Morgan Asset Management (Canada) Inc., 2013 FCA 250, [2014] 2 F.C. 557.)
29 Preliminary
objections are "show stoppers": JP Morgan, above at paragraph 47. Where they are well-founded and the
reviewing court cannot hear some or all of the issues placed before it, those
issues are finished. The reviewing court need not proceed further with them.
30 Depending
on the nature of the preliminary objection, it might be wise for the reviewing
court not to proceed further. For example, take the preliminary objection that
there is another administrative forum available to the applicant to get
adequate and effective relief. When that objection is well-founded, the
applicant will often seek relief in the other forum. That forum will consider
the merits, find the facts and the law and, where warranted, inject specialized
administrative appreciations and policies into its analysis. Unless there is a
good reason, a reviewing court should not offer views on those issues in
advance. The different roles of the reviewing court and the administrative
decision-maker should be respected to the extent possible: Delios v. Canada (Attorney General), 2015 FCA
117 at paragraphs 41-42; Connolly v. Canada (Attorney
General), 2014 FCA 294, 466 N.R. 44 at paragraph 7; Association of Universities and Colleges of Canada v. Canadian
Copyright Licensing Agency (Access Copyright), 2012 FCA
22, 428 N.R. 297 at paragraph 17
31 In
the case at bar, did the Federal Court proceed in the manner just described? To
a considerable extent, it did.
32 As
mentioned above, the Federal Court found that the appellant could not raise the
employment issue because of the preliminary objection of relitigation or, more
particularly, issue estoppel. It was right to hone in on this preliminary
objection and decide it.
33 Having
dealt with it, the Federal Court could have left the employment issue there.
Issue estoppel and res judicata,
or more generally doctrines against relitigation, are preliminary objections
and once the reviewing court finds they exist, the court need not continue: Shaju v. Canada (Minister of Citizenship and Immigration) (1995), 97 F.T.R. 313 (T.D.) per Nadon J. (as he then was); Donald J.M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada, looseleaf (consulted on 27 May 2015) (Toronto: Carswell, 2014),
chapter 3.
34 However,
in the case at bar the Federal Court delved into the factual merits of the
employment issue, perhaps out of courtesy to the appellant or to confirm it was
right to refuse the appellant the declaration he sought. In a case like
this--especially where the reviewing court was not remitting the issue back to
an administrative decision-maker being reviewed--what the Federal Court did
makes much sense.
35 In
the course of its reasons, the Federal Court felt that another preliminary
objection was in play. It expressed "grave doubts" about its ability
to proceed in the absence of "other relief or proceedings" (at
paragraphs 29-30). But it did not explore those doubts further.
36 In
this Court, the parties had some sense of what the Federal Court had grave
doubts about. In its memorandum of fact and law (at paragraphs 24-25), the
appellant briefly addressed whether he should have remedied his statelessness
by pursuing an "alternative process" such as applying to the Minister
under the Citizenship Act. The
respondent joined issue on this in its memorandum (at paragraphs 45-51) and in
oral argument added that Indian citizenship authorities were another adequate
and effective forum where the appellant could obtain relief against alleged
statelessness. During the hearing in this Court, many questions were asked and
many submissions were made on this issue. Therefore, a second preliminary
objection--the existence of another forum where adequate and effective relief
can be had--is in play before us.
The standard of review
in this Court
37 What
is the standard of review of a decision by the Federal Court that a judicial
review should not proceed because of a preliminary objection? It is the usual
appellate standard of review:
· On this point, we are reviewing a decision made by the Federal
Court, not [that of an administrative decision-maker], on whether a preliminary
legal objection --prematurity--applies to [bar] the application for judicial
review in the Federal Court. Therefore, on this point, the standard of review
is the appellate standard of review, not the standard of review that pertains
to appeals from judicial reviews of administrative decision-making. Housen v. Nikolaisen, 2002 SCC 33, [2002] 2
S.C.R. 235 applies, not Agraira v. Canada (Public Safety
and Emergency Preparedness), 2013 SCC 36, [2013] 2
S.C.R. 559 at paragraphs 45-47.
· Under the appellate standard of review described in Housen, supra, we review extricable legal issues on a correctness basis. On all
other issues, we look for palpable and overriding error.
(Wilson v. Atomic Energy of
Canada Limited, 2015 FCA 17, 467 N.R. 201 at paragraphs
25-26.)
38 Thus,
in this case, in order for this Court to set aside the Federal Court's finding
of issue estoppel, the appellant must persuade us that the Federal Court either
erred on an extricable legal issue or committed palpable and overriding error
on some other issue: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
39 Palpable
and overriding error is a high standard:
· Palpable and overriding error is: "Palpable" means an
error that is obvious. "Overriding" means an error that goes to the
very core of the outcome of the case. When arguing palpable and overriding error,
it is not enough to pull at leaves and branches and leave the tree standing.
The entire tree must fall.
(Canada v. South Yukon
Forest Corporation, 2012 FCA 165, 431 N.R. 286 at
paragraph 46.).
40 As
for the second preliminary objection--that there is another forum where
adequate and effective relief can be had--the Federal Court did not deal with
it fully and did not reach a firm conclusion on it. In a circumstance such as
this, we have nothing to defer to. Therefore, we may simply determine the issue
on the basis of the record filed before us: Canada
(Attorney General) v. Larkman, 2012 FCA 204, 433 N.R.
184 at paragraph 60; Infonet Services Corp. v. Matrox
Electronic Systems Ltd., 2004 FCA 162 at paragraph 6.
The first preliminary
objection: issue estoppel
41 As
mentioned above, the Federal Court found that the appellant was barred from
raising the employment issue because the Board had decided the matter and the
matter was final because the Federal Court refused leave. It applied the
doctrine of issue estoppel.
42 The
Federal Court applied the correct legal test for issue estoppel, it did not err
on any extricable legal principle and it did not commit palpable and overriding
error. It found that the earlier Board proceedings, now final, involved the
same parties and the same issue. Those proceedings determined the employment
issue against the appellant. Thus, the Federal Court concluded that issue
estoppel barred the appellant from relitigating the employment issue. I find no
reviewable error in this. Indeed, on this point I agree with the Federal
Court's reasons and conclusions.
43 The
appellant submits that issue estoppel is a discretionary bar and that, as a
matter of discretion, the Federal Court should have allowed him to relitigate
the employment issue on its merits. In this case, the appellant points to
evidence that was not available at the time of the Board proceedings that it
placed before the Federal Court.
44 I
agree with the appellant that issue estoppel is a discretionary bar. The
Supreme Court has confirmed this and has set out the legal principles that must
guide the court's discretion: Danyluk v. Ainsworth
Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460.
45 But
the Federal Court found that the new evidence placed before it did not cast a
different light on the matter. Accordingly, it did not exercise its discretion
in favour of rehearing the employment issue. The appellant has not shown any
palpable and overriding error in this factually-suffused assessment.
(4) The second preliminary objection: there are
other adequate and effective forums for relief
46 The
central thrust of the appellant's constitutional case is that unless relief is
granted, he will continue to be stateless, in contravention of the Charter and
the Convention, with all the difficulty that causes to the appellant. Some of
that difficulty, the appellant says, implicates constitutionally protected
interests. For example, the appellant submits that his statelessness is
preventing him from having medical coverage under the Ontario Health Insurance
Plan. He also points to the release conditions that restrict him.
47 But
the Minister urges us to find that those issues cannot yet be raised by way of
judicial review. He says the appellant has administrative avenues by which he
can avoid being stateless: he can try to obtain citizenship either in India or
in Canada. According to the Minister, the appellant has refrained from pursuing
those avenues and he must pursue them first.
48 I
agree with the Minister. The appellant does have other adequate and effective
forums for relief that, in these circumstances and as a matter of law, he must
pursue first.
49 On
the state of the evidence before us, India is an adequate and effective forum
for the appellant. The appellant has considerable connection with India. The
Board found he was born to two Indian nationals while they were working for
officials with the Indian High Commission. This raises the apprehension that
the appellant could be a national of India by birth and that he may apply for
Indian national status or citizenship. Many states grant national status or
citizenship in circumstances such as these. If Indian authorities grant the
appellant national status or citizenship, any alleged statelessness would
disappear.
50 On
the record before us, the appellant has not shown any legal or practical
obstacle to acquiring national status or citizenship in India. Nothing has been
placed before us that would suggest that a person born in Canada to two Indian
nationals working for officials with the Indian High Commission cannot apply
for Indian national status or citizenship or that, as a legal matter, India
would deny the appellant national status or citizenship.
51 In
attempting to prove statelessness for later administrative or legal
proceedings, the appellant conceded at the hearing of the appeal that the best
proof that India will not grant national status or citizenship is for him to
apply to the Indian authorities and be refused. But the appellant has never
applied to those authorities.
52 And
nothing prevents the appellant from pursuing a grant of Canadian citizenship
under subsection 5(4) of the Citizenship Act. Indeed, for some time now, the appellant has been able to invoke
the ground of "special and unusual hardship" in that subsection by
requesting that the Minister provide him with a certificate of citizenship
under section 12 of the Citizenship Act: see also section 10 of the Citizenship
Regulations, S.O.R./93-246 for some procedural
guidance. In argument before us, both parties admitted that subsection 5(4) is
a potential avenue for the appellant to pursue.
53 Subsection
5(4) of the Citizenship Act
permits the Minister to grant the appellant citizenship if he can demonstrate
"special and unusual hardship". Subsection 5(4) provides as follows:
· 5. (4) Despite any other provision of this
Act, the Minister may, in his or her discretion, grant citizenship to any
person to alleviate cases of special and unusual hardship or to reward services
of an exceptional value to Canada.
* * *
· 5. (4) Malgré les autres dispositions de la
présente loi, le ministre a le pouvoir discrétionnaire d'attribuer la
citoyenneté à toute personne afin de remédier à une situation particulière et
inhabituelle de détresse ou de récompenser des services exceptionnels rendus au
Canada.
54 On
the issue of "special and unusual hardship," the appellant may adduce
evidence of lack of success in obtaining status as an Indian national or
citizen, medical issues, statelessness, difficulties and harms associated with
being stateless, and other matters bearing on the issue. The appellant may also
invoke the Convention as a matter that the Minister should consider: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193. It will be for the
Minister to assess the relevance and weight of all of these things. And it will
be for the Federal Court, if leave is sought and granted under Part V.1 of the Citizenship Act, to review the Minister's
decision.
55 Therefore,
on the record before us, the appellant can legally and practically apply for
national status or citizenship in India and in Canada. But he has declined to
do so.
56 The
general rule is that parties can proceed to a reviewing court only after all
adequate and effective recourses in the administrative scheme have been
exhausted. This Court has described the general rule as follows:
· Administrative law judgments and textbooks describe this rule in
many ways: the doctrine of exhaustion, the doctrine of adequate alternative
remedies, the doctrine against fragmentation or bifurcation of administrative
proceedings, the rule against interlocutory judicial reviews and the objection
against premature judicial reviews. All of these express the same concept:
absent exceptional circumstances, parties cannot proceed to the court system
until the administrative process has run its course. This means that, absent
exceptional circumstances, those who are dissatisfied with some matter arising
in the ongoing administrative process must pursue all effective remedies that
are available within that process; only when the administrative process has
finished or when the administrative process affords no effective remedy can
they proceed to court. Put another way, absent exceptional circumstances,
courts should not interfere with ongoing administrative processes until after
they are completed, or until the available, effective remedies are exhausted.
(Canada (Border Services
Agency) v. C.B. Powell Limited, 2010 FCA 61, [2011] 2
F.C. 332 at paragraph 30; Harelkin v. University of
Regina, [1979] 2 S.C.R. 561, 96 D.L.R. (3d) 14; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929,
125 D.L.R. (4th) 583; and see also the extensive discussions in JP Morgan, above at paragraphs 84-91 and Wilson, above at paragraphs 24-41.)
57 According
to this general rule, a reviewing court can only be approached as a last resort
after other adequate, effective forums for relief have been pursued and have
failed: see, e.g., JP Morgan, above at paragraph 81; Froom v. Canada (Minister of Justice), 2004
FCA 352, [2005] 2 F.C. 195; Forest Ethics Advocacy
Association v. Canada (National Energy Board), 2014 FCA
245, 465 N.R. 152. In this case, the appellant has approached the reviewing
court, the Federal Court, not as a last resort but as a first resort. This
Court's comments in paragraphs 100 and 101 of JP Morgan are apposite:
· ...[T]he question is not whether [parties'] rights can be fully
vindicated. They can. The question is how to do it consistent with proper
practices and procedures, when to do it, in what forum, and by what
means.
· For some, judicial review in the Federal Court is a preferred tool
of first resort. They are wrong. It is a tool of last resort, available only
when a cognizable administrative law claim exists, all other routes of redress
now or later are foreclosed, ineffective or inadequate, and the Federal Court
has the power to grant the relief sought.
58 Important
rationales lie behind the general rule that a reviewing court should be
approached as a last resort, not a first resort: Wilson, above at paragraphs 30-33; Forest Ethics
Advocacy Association, above at paragraphs 40-45. One
rationale--of force in this case--is that where Parliament has set up an
exclusive statutory scheme in which a particular administrative official, here
the Minister, grants citizenship based on particular statutory standards and in
accordance with legislatively prescribed procedures, a person seeking
citizenship cannot bypass that scheme and go directly to a reviewing court.
59 In
its discretion, a reviewing court can relax the rigour of the general rule.
Like all discretions exercised by reviewing courts, this discretion "must
be exercised judicially and in accordance with proper principles": Canada (Citizenship and Immigration) v. Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339 at paragraph 40; Guy Régimbald, Canadian Administrative Law, 2d ed. (Markham,
ON: LexisNexis, 2015) at page 542.
60 This
Court has held that it rarely exercises its discretion in favour of relaxing
the general rule because of the strong rationales underlying it: Wilson, above at paragraph 33; C.B. Powell, above at paragraph 33; and see
also Spidel v. Canada (Attorney General), 2010 FC 1028 at paragraph 16. The cases show that the general rule
can be relaxed where concerns about the rule of law are aroused or where the
public law values implicated by the case favour early, immediate access to a
reviewing court: Wilson, above
at paragraph 30 (examples of public law values) and paragraph 33; and see the
discussion in Boogaard v. Canada (Attorney General), 2013 FC 267 at paragraphs 23-35. The existence of constitutional
issues, alone, is not enough to warrant early, immediate access to a reviewing
court where an adequate and effective forum for relief exists elsewhere: Forest Ethics Advocacy Association, above.
Something extra--for example, urgent circumstances--are required before the
general rule can be relaxed: Okwuobi v. Lester B.
Pearson School Board; Casimir v.
Quebec (Attorney General); Zorrilla
v. Quebec (Attorney General), 2005 SCC 16, [2005] 1
S.C.R. 257 at paragraphs 51-53.
61 Applying
these principles to the appellant's case, I conclude that Indian and Canadian
administrative authorities who grant national status or citizenship are
adequate and effective forums for the appellant to obtain relief: see the
discussion above at paragraphs 46-55. The general rule against early, immediate
access to the reviewing court applies. Further, there are no considerations in
this case favouring a relaxation of this general rule.
62 The
appellant offers three submissions against these conclusions.
63 First,
in his memorandum of fact and law, the appellant suggests that the Minister is
not an adequate or effective forum because he does not have the power to
consider the Charter when exercising powers under the Citizenship
Act.
64 I
disagree. If the appellant applies to the Minister under subsection 5(4) of the
Citizenship Act, he can present
the Charter as a value that the Minister has to take into account when deciding
whether the appellant is entitled to a certificate of citizenship: see, e.g., Doré v. Barreau
du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395. Or the
appellant may submit that any injury to Charter rights and values forms part of
the statutory standard of "special and unusual hardship" that the
Minister must consider. Put another way, if the Minister disregards Charter
values and the appellant's Charter rights in considering "special and
unusual hardship", he may be committing reviewable error, either by
construing the statutory standard in an unreasonable way, or by reaching a
result that itself offends the Charter: see, e.g., Loyola High School v. Quebec (Attorney
General), 2015 SCC 12, 79 Admin. L.R. (5th) 177. In
response to questions during oral argument, the appellant conceded that the
Charter could be placed before the Minister in these ways. I should add that in
making these observations, I am not commenting on the relevancy or materiality
of the Charter to an application under subsection 5(4) of the Citizenship Act.
65 Next,
the appellant submits that the Minister "has already bluntly expressed his
views on the appellant's citizenship" and so his recourses under the Citizenship Act are pointless: see
appellant's memorandum at paragraph 25. The record shows that in the
proceedings before the Board counsel for the Minister submitted that the
appellant is not a Canadian citizen. And after the Board ruled that the
appellant was not a citizen of Canada, certain of the Minister's officials have
expressed the view that the appellant is not a citizen of Canada. The appellant
says that these statements show that the Minister is biased.
66 I
disagree. If the appellant applies to the Minister for citizenship under
subsection 5(4) of the Citizenship Act, the Minister must decide the appellant's application for
citizenship fairly on the basis of the evidence presented and the applicable
legislative standards, all in accordance with applicable standards of
procedural fairness. Positions taken in earlier legal proceedings and
statements that recount the outcome of those proceedings, without more, do not
necessarily give rise to an apprehension, real or apprehended, that the
Minister will be unable to discharge these obligations. In any application
under subsection 5(4), the appellant's hardship, if any, will be determinative,
and, as best as can be seen from the evidentiary record, neither the Minister
nor his officials have commented on that issue at all.
67 Finally,
the appellant also raises one circumstance that he says is exceptional enough
to warrant a relaxation of the general rule against early, immediate access to
a reviewing court. He submits that until he is declared a citizen, he cannot
obtain medical coverage under the Ontario Health Insurance Plan. However, in
the circumstances of this case, this does not warrant early access to a
reviewing court. There is no evidence that the appellant needs medical coverage
at this time or that, without medical coverage, he cannot access medical care
when he needs it. Further, the appellant can address this issue by applying
promptly for Canadian citizenship under the route that has been available to
him for years, namely subsection 5(4) of the Citizenship
Act.
68 Therefore,
I uphold the preliminary objection that the appellant has other forums
available to him that are adequate and effective. The Federal Court was on the
right track when it said that it had "grave doubts" about the
appellant's judicial review being able to proceed. Indeed, it could not
proceed.
69 The
appellant must first try to obtain citizenship from the Indian and Canadian
authorities. Those avenues have been practically and legally available to him
for years. Yet he has refrained from pursuing them. Now he should pursue them.
70 In
accordance with the discussion at paragraphs 27-30 above, I decline to offer
any views concerning the merits of any application made to the Minister under
subsection 5(4) of the Citizenship Act. The merits are for the Minister to decide. And the matter might
one day arrive in the Federal Court on review and in this Court on appeal.
Therefore, nothing in these reasons should be taken as expressing any views on
the merits of any subsection 5(4) application made to the Minister.
71 Finally,
these reasons should not be taken as expressing any view regarding whether a
bare declaration of the sort sought by the appellant is generally available.
72 I
would only say this: the declaration the appellant seeks in this case would
achieve the same effect as a mandamus order against the Minister requiring him
to recognize the appellant as a Canadian citizen even though he has never been
given the chance by way of application to consider the matter, not even a bit.
This goes way beyond the existing jurisprudence.
73 This
buttresses the conclusion I have reached: by coming directly to this Court on
judicial review, the appellant is impermissibly bypassing the administrative
scheme Parliament has set up under the Citizenship Act for determining issues of citizenship.
E. Proposed disposition
74 For
the foregoing reasons, I would dismiss the appeal with costs.
STRATAS J.A.
RYER J.A.:-- I agree.
RENNIE J.A.:-- I agree.
RYER J.A.:-- I agree.
RENNIE J.A.:-- I agree.
