INDIAN ACTOR DENIED WORK PERMIT FOR FAILING TO DISCLOSE CRIMINAL CONVICTIONS

Sometimes people play games with the meaning of questions and try to twist them to their advantage. The problem is that the legislation makes it clear that misrepresentations are problematic in immigration applications. The court in the case below was not persuaded by the applicant's attempt to "explain his explanation", so to speak.

Bundhel v. Canada (Minister of Citizenship and Immigration)

Between
Yograj Singh Bundhel, Applicant, and
Minister of Citizenship and Immigration Canada, Respondent

[2014] F.C.J. No. 1219

2014 FC 1147

Docket: IMM-3146-14

 Federal Court
Vancouver, British Columbia

Barnes J.

Heard: November 17, 2014.
Judgment: November 28, 2014.

(10 paras.)

---

REASONS

1     BARNES J.:-- The Applicant, Yograj Singh Bundhel, challenges a decision made on April 3, 2014, denying his application for a temporary work permit. Mr. Bundhel is an actor who sought to enter Canada to work on the set of a movie production. The basis of the decision was a finding that Mr. Bundhel had misrepresented his background, pertaining specifically to two serious criminal charges in India.

2     Mr. Bundhel's visa application included the following question: "Have you ever committed, been arrested for, been charged with or convicted of any criminal offence in any country?"

3     If the applicant provides an affirmative response to this question he is required to provide details. Mr. Bundhel answered in the negative. This was inaccurate. Mr. Bundhel had faced charges in India in connection with a reckless driving case and for harbouring a fugitive accused of murder. Although his convictions were later overturned on appeal, it is beyond doubt that Mr. Bundhel had been arrested and charged in connection with both matters.

4     The Officer provided Mr. Bundhel with an opportunity to explain the discrepancy. The excuse he offered was that his answer was merely a "clerical mistake"; because he was ultimately acquitted of the criminal charges, he did not believe the details needed to be mentioned.

5     The Officer was not satisfied with Mr. Bundhel's explanation and found that a misrepresentation had occurred. Her reasons were stated as follows:

·       I have considered this response in the spirit of the way we have phrased our question on the application form. Clearly we wish to know about prior arrests and charges even if they do not eventually result in conviction or we would not ask the question. By concealing his prior arrest and conviction even if it did end in acquittal the applicant could have induced an error in the administration of the Immigration and Refugee Protection Act. Specifically: the applicant is applying for a work permit and temporary resident visa to visit Canada. By not providing truthful information regarding his background the officer would not have had the information necessary to determine whether or not he would fall into A36(1)(c) having committed an offence outside of Canada causing arrest and charged with an offence which would equate to Section 221 of the Criminal Code of Canada. I do not accept that this was a clerical error as the way the question is worded makes it abundantly clear we are concerned with charges and arrests as well as convictions. Applicant has failed in his requirement to answer all questions truthfully as per A16(1). As such the applicant is inadmissible under A40(1) of the IRPA. Refused on bonafides and for misrepresentation. 

6     Mr. Bundhel argues that this decision was unreasonable because his explanation was "at least plausible on its face" and it therefore demanded that the Officer explain why it was not accepted. He also argues that he corrected the factual record at the first opportunity and some consideration of that mitigating factor ought to have been applied. Finally, he points to the serious consequences that the misrepresentation finding will have for his future overseas travel.

7     None of these arguments has merit. The Officer reasonably concluded that Mr. Bundhel had deliberately concealed the facts of his criminal arrests and prosecutions. The question that he was asked does not allow for ambiguity. Mr. Bundhel knew full well that he had been arrested and charged in connection with two serious criminal matters and the Officer found that he deliberately withheld that information on his application. His response to the Officer failed to explain how he could have plausibly misunderstood those parts of the criminality question. There was, accordingly, no basis for the Officer to make a finding other than the obvious one -- that is, Mr. Bundhel was being dishonest when he withheld the true facts, knowing that a truthful answer could create admissibility problems.

8     Mr. Bundhel's complaint that the Officer should have considered the fact that he owned-up to the problem at the first available opportunity is also unjustified. Mr. Bundhel only acknowledged the true facts when he was confronted with them. This is not equivalent to a situation where an applicant owns-up to a mistake before it is brought to light or where the file already contains the correct information. In such a case, a favourable inference is more likely to be drawn because it is suggestive of an innocent mistake and not a wilful omission. The same point is made in Uppal v Canada (Minister of Citizenship and Immigration), 2009 FC 445, where Justice Anne Mactavish stated the following:

·       30 The misrepresentations in this case were made in the context of the applications for permanent residence that were under consideration by the officer. In such circumstances, the fact that the misrepresentations were disclosed by the applicants prior to a final decision having actually been taken in relation to their applications does not assist them. Indeed, this Court specifically rejected this argument in Khan v. Canada (Minister of Citizenship & Immigration), 2008 FC 512 at paras. 27-29. 

·       31 That is, the Court held in Khan that such an interpretation would lead to situations where individuals could knowingly misrepresent their circumstances, but nevertheless escape an inadmissibility finding, as long as they disclosed the misrepresentation right before a decision was made. Not only would such an interpretation encourage the abuse of the Act, it also ignores the requirement to provide truthful information in applications under the Act. 

·       32 The Court's concerns in Khan are amply illustrated by the facts of this case, where the applicants only came forward with their "clarification" once they knew that their lies were about to be uncovered through genetic testing. 

·       33 As a consequence, I am satisfied that the officer's conclusion that the applicants had misrepresented material facts relating to a relevant matter that could have induced an error in the administration of the Act was one that was reasonably open to him on the record before him. 

9     The fact is, our system of immigration control relies heavily on the truthfulness of those who apply to come here. Those who misrepresent their histories or withhold material information with a view to enhancing their chances for entry are undeserving of special consideration. The consequences for Mr. Bundhel are undoubtedly serious but they result from his failure to disclose material information. The integrity of Canada's control over its borders demands nothing less than scrupulous honesty from applicants and the rigid enforcement of that obligation. The Officer's decision fulfills this principle and is in all respects reasonable.

10     This application is accordingly dismissed. Neither party proposed a certified question and no issue of general importance arises on this record.

PARALEGAL SUSPENDED IN MASSIVE IMMIGRATION FRAUD ALLEGATION. FLED ABROAD

The Law Society of Upper Canada suspended the paralegal license of the person below, amid massive fraud allegations involving at least 180 applications for work permits and close to a million dollars in client funds. He apparently fled the country, according to the decision below.

The most bizarre thing in this case is that the person in question was a licensed paralegal by LSUC, who apparently had run afoul of the regulator, so one is left to wonder how things got out of hand so quickly before the brakes were put on this person, or even how he even got a license as a paralegal. That is not clear from the decision. This calls paralegal regulation into question, which is already a very controversial topic in the Bar.

Law Society of Upper Canada v. Castillo Garcia

Between
The Law Society of Upper Canada, Moving Party, and
Victor Manuel Castillo Garcia, Respondent

[2014] L.S.D.D. No. 308

2014 ONLSTH 226

Tribunal File No.: PINT93/14

 Law Society Tribunal
Hearing Division
Toronto, Ontario

Panel: Raj Anand, Chair; Michelle Tamlin; Eric Whist

Heard: October 23, 2014.
Decision: November 25, 2014.

(22 paras.)

Tribunal Summary:

Castillo Garcia -- Interlocutory suspension -- The Paralegal failed to appear on this motion, though properly served -- The Society was investigating 12 complaints against him, the majority of which were from vulnerable individuals who either were trying to gain entry into Canada or were Canadian residents attempting to secure a work permit or refugee status -- The Paralegal's practice included matters that fell outside permitted paralegal practice -- At least three complaints suggested fraud and dishonesty on the Paralegal's part -- One concerned 180 foreign applicants for work visas who provided retainer fees of $960,000 that he deposited in a bank account that was not a trust account -- He closed the account and, at about the same time, he appeared to have closed his practice and gone abroad -- The Paralegal's licence was suspended immediately, on an interim interlocutory basis -- He was to pay costs of $10,000.

Appearances:

Jennifer Forde, for the Moving Party.

Respondent, not present and not participating.

---

REASONS FOR DECISION

INTRODUCTION

1     RAJ ANAND (for the panel):-- This is a motion for an interlocutory suspension of the Respondent's paralegal licence.

2     The Respondent did not appear at the hearing and did not serve or file any responding materials. Through affidavit evidence the Law Society demonstrated that he had been properly served with its factum, motion record and book of authorities. Indeed, the Law Society went beyond proper service, and made considerable additional efforts to provide the materials to the Respondent in the two weeks preceding the hearing. The evidence showed that the Paralegal had failed to respond to the Law Society in any fashion since April 2014. Given his failure to attend the scheduled hearing, we proceeded in his absence.

3     After submissions by Ms. Forde on behalf of the Law Society, the panel granted the motion with costs, with terms as specified below. I gave brief oral reasons, stating that the uncontradicted evidence before us at this point suggests serious concern that the Respondent has committed professional misconduct under the 15 headings enumerated by the Law Society in its factum. We were accordingly satisfied that the Law Society had met the statutory test for an interlocutory suspension. I indicated that brief written reasons would follow. Since the investigations are at various stages of completion and a conduct hearing may follow, these reasons will rely on the Law Society's evidence that has been gathered thus far, but will not provide detailed accounts of the facts or analysis of the liability issues.

THE INVESTIGATIONS

4     The Paralegal was granted a P1 licence in 2010, and his practice focuses largely on immigration, including matters such as worker visas which fall outside permitted paralegal practice. The Respondent is not a registered immigration consultant, nor does it appear that he employs one.

5     In the 12 complaints that are being investigated by the Law Society, the majority of the complainants are individuals who are either trying to gain entry to Canada or are Canadian residents who are attempting to secure a work permit or refugee status. They are vulnerable individuals, with language and financial barriers, and likely without significant knowledge of our legal system.

6     At least three complaints suggest fraud and dishonesty on the part of the Respondent.

7     One concerns 180 foreign applicants for work visas, who provided retainer fees of $960,000 to the Respondent between September 2013 and April 2014 through a recruiting company, to which the Respondent promised pre-approved Labour Market Opinions (LMOs). Many of these applicants received rejections from the federal authorities on the basis that the LMOs were fraudulent and, indeed, it appears that the named employers knew nothing about LMOs that supposedly related to them. The Respondent deposited the $960,000 in a bank account, which was not a trust account, and then closed the account in June 2014. At about the same time, the Respondent appears to have closed his practice and gone abroad.

8     The Respondent's 2012 and 2013 Paralegal Annual Reports indicate that he did not operate a trust account and received no trust funds, but various complainants' documentation suggests that they provided funds that should have been placed in trust. Eleven of the 12 complaints allege that the Respondent accepted retainer fees and failed to do the work for which he was retained. Several of the complainants allege that the Respondent failed to account for their funds and indeed failed to return important documents such as passports, birth certificates and diplomas when they terminated his retainer or he abandoned his practice. The Respondent appears to have abandoned the files of eight of the complainants even before the Paralegal physically departed his office.

9     Information received from complainants and a corporate search also indicates that the Paralegal is the principal of VIPA Financial, which lends money to his clients to finance his legal services. Documentation suggests that clients were referred to VIPA, which advanced funds to the Paralegal. It appears that he failed to recommend that they seek independent legal advice despite the apparent conflict of interest. In one case, it is alleged that the Respondent's advice in a human rights settlement context involved preferring his finance company's interests in recouping its loan over the client's interest in a larger settlement.

10     Between December 2013 and September 2014, Law Society staff sent the Respondent 30 letters and 15 e-mails, and attempted to call him 11 times, to request his written representations and other information in response to the complaints. The Law Society used the contact information that the Respondent provided. Many of these letters were returned. There was one response to two complaints in April 2014, in which the Paralegal claimed that he had provided representations and documentation in response to both, but in fact he only attached documents relating to one complaint. The Law Society has not received any response to the other complaints.

11     The Respondent's April 2014 communication was his last contact with the Law Society. He indicated that he was out of the country, travelling between Mexico, Cuba and South America, with plans to return in May 2014. The Respondent also took steps in April 2014 to cure an administrative suspension, which indicates that he was planning to resume his paralegal practice in Ontario. Two complainants said they had met with him in June 2014 when they provided him with $5,000. One of them was able to communicate with the Paralegal through a website the next month. Several complainants and the Law Society investigator report that the Respondent's office was closed in the summer of 2014 for rent arrears.

ANALYSIS

12     This panel's jurisdiction to issue an interlocutory suspension is conferred by s. 49.27 of the Law Society Act, which states:

·       Interlocutory orders 

·       (1) 

The Hearing Division may make an interlocutory order authorized by the rules of practice and procedure, subject to subsection (2). 2006, c. 21, Sched. C, s. 53; 2013, c. 17, s. 26. 

·       Exception 

·       (2) 

The Hearing Division shall not make an interlocutory order suspending a licensee's licence or restricting the manner in which a licensee may practise law or provide legal services, unless there are reasonable grounds for believing that there is a significant risk of harm to members of the public, or to the public interest in the administration of justice, if the order is not made and that making the order is likely to reduce the risk. 2006, c. 21, Sched. C, s. 53; 2013, c. 17, s. 26. 

13     We are satisfied, based on the uncontradicted evidence before us, that there are reasonable grounds to believe that the public is at significant risk of harm. The allegations are serious, and concurrently fall into several important categories in terms of the professional obligations of the Law Society's licensees and its responsibility to protect the public interest: fraud and dishonesty, compliance with his regulatory obligations; mistreatment of clients and their funds and documents; conflict of interest; and abandonment of his practice.

14     In addition, the uncontradicted evidence of the Paralegal's actions in relation to immigration and other public law proceedings, including the possible misappropriation of almost a million dollars in retainer fees in return for no services, threatens significant harm to the administration of justice.

15     We also conclude that an interlocutory order is likely to reduce the risk of harm. We asked the Law Society's representative whether the Paralegal's failure to respond to the Law Society and even to the notice of motion before us, might suggest that he would not respect a suspension order either. She responded, in our view quite rightly, that if the defiance or non-co-operation that appears in the record continues, his ability to visit harm on existing or prospective clients will be reduced by public notice of his suspension.

16     Moreover, notice to public bodies including immigration and other administrative authorities makes it reasonable to conclude that the likelihood of harm to the administration of justice will be reduced.

17     Finally, we believe that our suspension order is likely to reduce the harm to the administration of justice and to members of the public in the following sense. Our order will convey the clear statement that in its obligation to regulate the legal profession in the public interest, the regulator cannot countenance the continuing practice of a licensee who appears to have been conducting himself in the manner that has been presented in the evidence on this motion. Our order will benefit both the administration of justice, of which paralegal regulation forms an important part, and the public which must have confidence in the effective regulation of the Law Society's licensees.

COSTS

18     As a general rule, the profession should not bear the entire costs where the Law Society is successful in a conduct proceeding. This proceeding, however, is an interlocutory motion in which no finding of misconduct has been made, and if an Application is issued the Respondent may indeed succeed in having the allegations dismissed after a contested hearing. For this reason, panels often reserve costs of an interlocutory suspension motion to the panel hearing the subsequent conduct application. See, for example, Law Society of Upper Canada v. Townley-Smith, 2010 ONLSHP 77; and Law Society of Upper Canada v. Nawab, 2008 ONLSHP 66, which the Law Society quite fairly submitted to us.

19     The Law Society's representative also put forward two cases in which costs were ordered and fixed on the motion: See Law Society of Upper Canada v. Janjua, 2009 ONLSHP 10; and Law Society of Upper Canada v. Grewal, 2014 ONLSTH 199. In these cases, the licensee did not appear at the hearing of the motion although properly served. Indeed, in the former case, like this one, the Lawyer had vacated his office, and his whereabouts were unknown. In these circumstances, the uncontradicted nature of the evidence put forward by the Law Society, which is the result of the licensee's failure or refusal to participate in the Tribunal process, militates against deferring a costs order in case misconduct is ultimately not found. Even if an application is ultimately dismissed, the Licensee will have no basis for complaint that the Law Society was awarded costs on this motion, because he did not appear on the motion to protect his interests. We therefore grant the Law Society's request for costs rather than deferring the issue.

20     We are satisfied that the requested costs order of $10,000, with six months to pay, is reasonable in the circumstances.

ORDER

21     We therefore signed the draft suspension Order tendered by the Law Society, with the costs amount and deadline filled in, with one exception. We asked the Law Society to add a provision to ensure that the Respondent can move to vacate our Order if the Law Society does not conduct its investigations with due diligence.

22     The operative parts of the Order read as follows:

·       1. 

Commencing immediately, the Paralegal's licence is suspended on an interim interlocutory basis. 

·       2. 

This Order shall be in effect until the earliest of the following: 

·       a. 

A panel varies or cancels the Order on the consent of the Law Society and the Paralegal prior to the hearing on the merits of the proceeding(s) to which the motion relates. 

·       b. 

A panel varies or cancels the Order on the basis of fresh evidence or a material change in circumstances that is brought by the Law Society or the Paralegal to the panel prior to the hearing on the merits of the proceeding(s) to which the motion relates. 

·       c. 

The panel presiding at the hearing on the merits of the proceeding(s) to which the motion relates, prior to the disposition of the proceeding(s), varies or cancels the Order. 

·       d. 

The panel presiding at the hearing on the merits of the proceeding(s) to which the motion relates disposes of the proceeding(s). 

·       3. 

The Paralegal shall comply fully with the terms of the Law Society's Guidelines for Paralegals who are Suspended or who have given an Undertaking not to Practise while suspended pursuant to this Order. 

·       4. 

The Paralegal may bring a motion to vacate this order if the Society does not conduct its investigations respecting the Paralegal with due diligence. 

·       5. 

The Paralegal shall pay costs to the Law Society in the amount of $10,000 within 6 months of the date of this Order, failing which, interest will accrue at a rate of 3% per annum thereafter. 

TAX COURT RULES DEPORTEE "NOT ORDINARILY RESIDENT" FOR CHILD TAX BENEFIT

A very interesting case: the Tax Court ruled that a person who was deported from Canada was not "ordinarily resident" for the purpose of receiving Child Tax Benefit during the period the person was outside of Canada and could not return, even though he was later allowed to do so.

Agrebi v. Canada

Between
Sami Agrebi, Appellant, and
Her Majesty the Queen, Respondent

[2014] T.C.J. No. 124

[2014] A.C.I. no 124

2014 TCC 141

Docket: 2013-318(IT)G

 Tax Court of Canada
Montreal, Quebec

Jorré T.C.J.

Heard: April 17, 2014.
Judgment: May 9, 2014.

(24 paras.)

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JUDGMENT:-- In accordance with the attached Reasons for Judgment, the appeal from the determinations made under the Income Tax Act for the 2008 and 2009 base years with respect to the goods and services tax credit, and for the 2005, 2006, 2007, 2008 and 2009 taxation years with respect to the Canada child tax benefit, is dismissed.

·       Under the circumstances, no costs will be awarded. 

REASONS FOR JUDGMENT

·       JORRÉ T.C.J.:-- 

Issue

1     The appellant is appealing determinations made with respect to the Canada child tax benefit and the goods and services tax credit.

2     One of the essential conditions to be met in order for a person to be the "eligible individual" for the purpose of receiving the child tax benefit and the GST credit is being resident in Canada.¹

3     The Minister of National Revenue admits that the appellant became a resident of Canada again on July 24, 2010, and that, consequently, he is entitled to receive the Canada child tax benefit and the GST credit as of August 2010.

4     At issue is whether the appellant was resident in Canada in 2005, 2006, 2007, 2008 and 2009 and duringthe period from January 1 to July 23, 2010, as he contends, or whether he was not, as the respondent contends.

Facts

5     The appellant is from Tunisia and is a Tunisian citizen. He obtained a work permit and came from Tunisia to work in Canada. While he was in Canada, he got married in May 2001. In April 2002, the appellant and his wife became parents of a daughter.

6     On May 31, 2001, Citizenship and Immigration Canada decided to execute a removal order against the appellant. The effect of this order was to oblige the appellant to leave the country, which he did on December 16, 2004.

7     The removal order also had as a consequence the termination of his Canadian work permit.

8     The mother was not able to take care of the child and there was no one else in Canada who could do so.

9     Consequently, the mother authorized the appellant to take their daughter with him and the appellant and his daughter left for Tunisia, his country of origin, in December 2004.

10     The appellant and his daughter remained in Tunisia until he returned to Canada on July 24, 2010. Before his arrival in Canada the first time and during the entire period at issue, the appellant was a Tunisian citizen.

11     The appellant resided with his parents in Tunisia. He received considerable financial support from his family. In addition, his sisters helped him raise his daughter.

12     The appellant's wife remained in Canada.

13     While he was in Tunisia, the appellant and his wife took steps to enable him to return to Canada. In particular, his wife filedapplications to sponsor a member of the family class.²

14     At last, their efforts were successful and the appellant and his daughter returned to Canada in July 2010.

15     The period during which the appellant was in Tunisia was difficult and all of these events have caused serious problems for his daughter. The appellant's current situation continues to be difficult.

Analysis

16     The issue before me is very specific: was the appellant resident in Canada from January 1, 2005, to July 23, 2010, a period of approximately five and a half years?

17     During that period the appellant was not in Canada and could not legally enter Canada.

18     The appellant submits that he remained a resident of Canada because he left involuntarily.

19     Determining whether a person is resident is a question of mixed fact and law. There is considerable case law on the subject.

20     As the Federal Court of Appeal recognized in Canada v. Laurin:³

·       2 ... a person is resident in the country where he or she, in the settled routine of life, regularly, normally or customarily lives, as opposed to the place where the person unusually, casually or intermittently stays. . . . 

21     During the period of more than five years in question, the appellant, a Tunisian citizen, had significant ties to Tunisia. He lived in Tunisia with his daughter at his parents' home. He had a bank account in Tunisia.

22     During that period, his wife was in Canada and he wanted to return to Canada,⁴ but he did not have the right to enter Canada. Until he obtained a visa, there was no certainty that he would succeed in returning to Canada.

23     Under such circumstances, I do not see how I could find that the appellant "regularly, normally or customarily" lived in Canada during the period of more than five years in question.⁵

24     Consequently, I must find that the appellant was not resident in Canada duringthe period in question. The appeal is dismissed.

Translation certified true: Erich Klein, Revisor

1 See, with respect to the Canada child tax benefit, paragraph (c) of the definition of "eligible individual" in section 122.6 of the Income Tax Act and see as well subsection 122.61(1) of the Act. See, with respect to the goods and services tax credit, paragraph 122.5(2)(c).

2 The efforts made are reflected in, inter alia, Exhibits A-10 to A-15.

3 2008 FCA 58. See also, for example, paragraphs 11 and 12 of this Court's decision in Bower v. The Queen, 2013 TCC 183.

4 I would note that residence is a question of fact and not intention, which is different from the matter of domicile where intention is a factor.

5 I note that there is a fundamental difference between the situation here and the one in Slater v. Commissioner of Taxes, [1949] NZLR 678, and as a result the reasoning in Slater cannot apply to the circumstances here. Mr. Slater had the right to return to New Zealand, his country, at any time; he had significant ties with New Zealand, including his house and his family, but he could not return for an extended period because he was being held as a prisoner of war.

APPLICANT HAD GOOD EXCUSE FOR MISSING CITIZENSHIP OATH CEREMONY

An unusual situation, where an application was talking law school exams in England and missed his taking the Oath of Citizenship. Tue Federal Court held, granting judicial review,  that the had good excuse and that the Citizenship Judge's decision was unreasonable.

Ayyad v. Canada (Minister of Citizenship and Immigration)

Between
Karim Ayyad, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2014] F.C.J. No. 1164

2014 FC 1101

Docket: T-495-14

 Federal Court
Toronto, Ontario

Kane J.

Heard: November 17, 2014.
Judgment: November 20, 2014.

(43 paras.)

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JUDGMENT AND REASONS

1     KANE J.:-- The applicant seeks judicial review of the decision of Citizenship Judge, Sharon Robertson, made on May 30, 2013 which found that the applicant did not have a good and sufficient cause not to appear to take the Oath of Citizenship.

2     The facts are straightforward. An application for citizenship was made on behalf of the applicant, who was a minor at that time, on May 4, 2012. On April 5, 2013, his citizenship was granted by an Officer at Citizenship and Immigration Canada (CIC). On April 17, 2013, a Notice to Appear was sent directing the applicant to attend a ceremony on May 9, 2013 to take his Oath of Citizenship. The notice was sent to the mailing address previously provided by the applicant's mother at their home in London, Ontario.

3     The applicant, who was in London, England at that time, received the Notice to Appear shortly after May 9, 2013. He advised CIC by letter dated May 14, 2013 that he had been unable to attend as directed because he was in London, England preparing to take his exams at the end of his first year at the City Law School of City University where he was enrolled and attached a letter from the University confirming his enrolment. He requested that the Oath of Citizenship be rescheduled.

4     The Citizenship Judge decided that the applicant's explanation for failing to attend to take his Oath did not constitute a good and sufficient cause. As a result, the application was then considered abandoned. After repeated requests about the status of the applicant's citizenship application, Counsel for the applicant was advised by letter dated February 24, 2014, from an unnamed Citizenship Official, that the file had been closed.

5     The result of this determination -- that his application for citizenship was abandoned -- is that the applicant would have to make a new application for citizenship, now as an adult. The process would recommence and he would have to satisfy all the requirements, despite the fact that he had been granted citizenship in 2013 and the only remaining step was for him to take the Oath of Citizenship.

6     For the reasons that follow, the application for judicial review is allowed.

The decision under review

7     The decision of the Citizenship Judge is set out on a form dated May 30, 2013. It notes that the applicant was duly notified to attend on May 9, 2013 and did not attend, but notified CIC and submitted his explanation on May 28, 2013, which was within the 60 day period specified in the Citizenship Regulations, SOR/93-246.

8     In the box provided to set out the explanation offered, the judge reiterates verbatim the content of the applicant's letter; he had travelled to London, England to prepare for his end of year Law School exams, which started the first week of May.

9     The judge then reiterates verbatim the three examples of acceptable explanations provided in the Processing Manual (CP 13, section 6.5) regarding "good and sufficient cause" for missing the Oath Ceremony. The Citizenship Judge then ticked the box indicating that she did not agree that the applicant had good and sufficient cause not to appear.

The Relevant Provisions

10     The Citizenship Regulations, SOR/93-246 (as of the date of this decision) provide:

·        23. 

(1) Where a person who fails to appear and take the oath of citizenship at the date, time and place appointed for that purpose fails, within 60 days after that date, to satisfy the citizenship judge or foreign service officer before whom the person was to appear, or the Minister where the person was to appear before a Minister of the Crown, that the person was prevented from appearing by some good and sufficient cause, the person's certificate of citizenship shall be returned to the Registrar. 

·        (2) 

Where a person described in subsection (1) satisfies the citizenship judge or foreign service officer before whom the person was to appear, or the Minister where the person was to appear before a Minister of the Crown, of the matter referred to in that subsection, another date, time and place shall be appointed by the citizenship judge, foreign service officer or the Registrar for the person to appear and take the oath of citizenship 

* * *

·        23. 

(1) Lorsque la personne qui n'a pas comparu et n'a pas prêté le serment de citoyenneté aux date, heure et lieu fixés à cette fin ne parvient pas, dans les 60 jours qui suivent cette date, à convaincre le juge de la citoyenneté ou l'agent du service extérieur devant lequel elle était censée comparaître, ou le ministre si elle était censée comparaître devant un ministre de la Couronne, qu'une raison valable l'a empêchée de comparaître, son certificat de citoyenneté doit être renvoyé au greffier. 

·        (2) 

Lorsque la personne mentionnée au paragraphe (1) réussit à convaincre le juge de la citoyenneté ou l'agent du service extérieur devant lequel elle était censée comparaître, ou le ministre si elle était censée comparaître devant un ministre de la Couronne, du bien-fondé de son empêchement à comparaître, le juge de la citoyenneté, l'agent du service extérieur ou le greffier fixe d'autres date, heure et lieu auxquels elle devra comparaître pour prêter le serment de citoyenneté. 

11     The Citizenship Act, RSC1985, c C-29 (the Act), now provides in Section 13.2 that an application is abandoned where the applicant fails to attend without reasonable excuse. That determination would be made by the Minister or the Minister's delegate. While Section 13.2 of the Act does not apply to this application for judicial review, the respondent helpfully points out that, in the event the Court allows the application for judicial review, any reconsideration of the applicant's reason for not attending to take his Oath of Citizenship would be determined in accordance with Section 13.2 by the Minister and not by a Citizenship Judge. In addition, the wording of "good and sufficient cause" has been replaced by "reasonable excuse".

12     Section 13.2 of the Citizenship Act now provides:

·        13.2 (1) The Minister may treat an application as abandoned 

·        (a) if the applicant fails, without reasonable excuse, when required by the Minister under section 23.1, 

·        (i) 

in the case where the Minister requires additional information or evidence without requiring an appearance, to provide the additional information or evidence by the date specified, or 

·        (ii) 

in the case where the Minister requires an appearance for the purpose of providing additional information or evidence, to appear at the time and at the place -- or at the time and by the means -- specified or to provide the additional information or evidence at his or her appearance; or 

·        (b) in the case of an applicant who must take the oath of citizenship to become a citizen, if the applicant fails, without reasonable excuse, to appear and take the oath at the time and at the place -- or at the time and by the means -- specified in an invitation from the Minister. 

·        (2) 

If the Minister treats an application as abandoned, no further action is to be taken with respect to it. 

* * *

·        13.2 (1) Le ministre peut considérer une demande comme abandonnée dans les cas suivants: 

·        a) le demandeur omet, sans excuse légitime, alors que le ministre l'exige au titre de l'article 23.1: 

·        (i) 

de fournir, au plus tard à la date précisée, les renseignements ou les éléments de preuve supplémentaires, lorsqu'il n'est pas tenu de comparaître pour les présenter, 

·        (ii) 

de comparaître aux moment et lieu -- ou au moment et par le moyen --fixés, ou de fournir les renseignements ou les éléments de preuve supplémentaires lors de sa comparution, lorsqu'il est tenu de comparaître pour les présenter; 

·        b) le demandeur omet, sans excuse légitime, de se présenter aux moment et lieu -- ou au moment et par le moyen -- fixés et de prêter le serment alors qu'il a été invité à le faire par le ministre et qu'il est tenu de le faire pour avoir la qualité de citoyen. 

·        (2) 

Il n'est donné suite à aucune demande considérée comme abandonnée par le ministre. 

13     Processing Manual CP 13 -- Administration, section 6.5, provides:

Exceptions

·        If an applicant provides CIC officials with a reasonable explanation for failure to respond within requested timeframes AND provides proof or evidence to support the explanation, additional time may be granted. At the discretion of the citizenship officer and depending on the nature of the circumstance, an applicant may be given up to six months from the date specified on the original notice by which to comply with the request to provide required documents to appear. 

·        Example: If the date on the original notice was June 5, 2004, the applicant would have up until December 5, 2004 to comply. This means that clients cannot be made unavailable in GCMS for more than six months. Clients should not be given more than six months "grace" to comply with the requirements of the Act. 

Acceptable explanations (examples)

·        Applicant must be away for an extended period to care for a dying parent. 

·        Applicant is unable to appear as a result of health constraints following an illness/accident. 

·        Other extenuating circumstances as deemed reasonable by CIC (e.g. applicant called out of country to sort out family/ business affairs as a result of death in the family). 

Unacceptable explanations (examples)

·        Applicant lives or continually travels abroad and wants to wait until next trip to Canada. 

·        Applicant has not prepared for language /knowledge assessment and needs more time to complete classes. 

·        Applicant neglected to appear on scheduled date. 

·        On occasion, there may be reasons put forward by the applicant which are difficult to assess. If a citizenship officer is unsure whether or not to initiate abandonment procedures, advice should be sought from the Integration Branch, Citizenship Division. 

* * *

Exceptions

·        Si un demandeur founit à un fonctionnaire de la citoyenneté une explication raisonnable de l'absence de réponse dans le délai prescrit ET une preuve à l'appui de son explication, il peut obtenir un délai supplémentaire. L'agent de la citoyenneté peut, selon les motifs de l'absence de réponse, accorder un délai supplémentaire maximal de six mois, à compter de la date précisée dans l'avis original, dans lequel le demandeur devra fournir les documents exigés ou se présenter. 

·        Exemple: Si la date dans l'avis original était le 5 juin 2004, le demandeur pourrait avoir jusqu'au 5 décembre 2004 pour se conforme à l'avis. Cela signifie que le dossier d'un client ne peut pas rester inactif dans le SMGC plus de six mois. Il ne faut pas accorder plus de six mois "de grâce" aux clients pour se conformer aux exigences de la Loi. 

Explication acceptables (exemples)

·        Le demandeur doit s'absenter pour une période prolongée afin de s'occuper d'un parent mourant. 

·        Le demandeur ne peut pas se présenter pour des raisons de santé (maladie ou accident). 

·        D'autres circonstances indépendantes de la volonté du demandeur que CIC jugera raisonnables (par exemple, le demandeur a été appelé à l'étranger pour une affaire familiale ou autre, à la suite d'un décès dans la famille). 

Explication inacceptables (exemples)

·        Le demandeur vit ou voyage continuellement à l'étranger et veut attendre d'être revenu au Canada. 

·        Le demandeur ne s'est pas préparé pour l'examen (connaissance de la langue et connaissance du Canada) et a besoin de plus de temps pour suivre les cours. 

·        Le demandeur ne s'est tout simplement pas présenté à la date prescrite. 

·        Il peut arriver qu'un demandeur fournisse une explication qui est difficile à évaluer. En case de doute, l'agent de la citoyenneté doit demander conseil à la Division de la citoyenneté, de la Direction générale de l'intégration. 

(I note that CP 13 applied to the provisions in effect prior to August 1, 2014, including section 23 of the Regulations.)

The Applicant's position

14     The applicant argues that the decision is not reasonable because the Citizenship Judge fettered her discretion by considering the examples in the Guidelines to be the only acceptable explanations that would constitute "good and sufficient cause" for failing to attend to take the Oath rather than considering whether the applicant's explanation would be a good and sufficient cause. The applicant notes that CP 13 is a guideline only and there is nothing in the Act or the Regulations to limit the discretion of the Citizenship Judge.

15     The applicant also argues that the Citizenship Judge failed to provide adequate reasons; the information provided does not reveal an intelligible, transparent or justifiable decision. The reasons do not demonstrate any analysis about why the applicant's explanation is not a good and sufficient cause or would not fall within "extenuating circumstances", which is provided as an example in CP 13.

16     The applicant submits that the respondent has attempted to provide additional reasons that are not on the record at all -- i.e., that the Notice was sent to the applicant's last known address and that the Judge considered his explanation more analogous to one of the unacceptable explanations. The applicant also argues that the reasons should not require the Court to speculate to provide additional support for the reasonableness of the decision (Canada (Citizenship and Immigration) v Jeizan, 2010 FC 323, 386 FTR 1 [Jeizan]).

The Respondent's Position

17     The respondent submits that the decision is reasonable and that the reasons, although brief, are adequate.

18     The respondent notes that there is no statutory requirement to provide reasons when denying an applicant's explanation or request for a new date to take the Oath, unlike decisions made pursuant to section 14 of the Citizenship Act which require that reasons be provided.

19     Alternatively, the respondent submits that, if there is a duty to provide reasons, it is minimal and it was satisfied by the letter sent to the applicant in February 2014, attaching the Citizenship Judge's decision.

20     The respondent submits that this decision, which sets out the examples of acceptable explanations, along with the record, which includes the applicant's letter and the letter from City University, make it possible to understand why the Citizenship Judge found that the explanation did not constitute good and sufficient cause. She considered the applicant's explanation, was guided by the examples, but found that his reason for not appearing was not a good and sufficient cause.

21     The respondent submits that the Notice to Appear was sent to the applicant at the address his mother had very recently provided and the fact that he was out of the country when the Notice was sent was not an adequate explanation.

22     The respondent argues that the Guidelines do not fetter the Citizenship Judge's discretion, noting that they specifically include, as an example of a good and sufficient cause, "other extenuating circumstances as deemed reasonable by CIC". Nor did the Citizenship Judge fetter her discretion by referring to the Guidelines. The respondent argues that by setting out the applicant's explanation and the examples of acceptable explanations, the reasons show that the Citizenship Judge considered the applicant's circumstances, but concluded that these did not constitute a good and sufficient cause.

The Issues

23     The applicant challenges both the reasonableness of the decision to refuse his explanation as a good and sufficient cause and the adequacy of the reasons provided by the Citizenship Judge, which consist of a cut-and-paste from his letter and the CP Guidelines.

24     The issue is whether the decision is reasonable; this includes whether the Citizenship Judge fettered her discretion, whether the reasons are adequate to allow the Court to understand why the Citizenship Judge reached the decision and whether the decision is within the range of acceptable outcomes (Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708 [Newfoundland Nurses]).

Standard of Review

25     The applicant submits that issues related to fettering of discretion are issues of procedural fairness, reviewable on the standard of correctness.

26     The respondent submits that both issues -- the adequacy of the reasons and whether the judge fettered her discretion -- are reviewable on the reasonableness standard.

27     The standard of reasonableness applies to the Citizenship Judge's decision as it involves an exercise of discretion based on questions of fact and law.

28     The role of the Court is to determine whether the decision "falls within 'a range of possible, acceptable outcomes which are defensible in respect of the facts and law' (Dunsmuir, at para 47). There might be more than one reasonable outcome. However, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome": (Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59, [2009] 1 SCR 339, citing Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 [Dunsmuir]).

29     The inadequacy of the reasons is not a stand alone ground to allow an application for judicial review. In Newfoundland Nurses, the Supreme Court of Canada elaborated on the requirements of Dunsmuir, noting that the reasons are to "be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes" (at para 14). In addition, where necessary, courts may look to the record "for the purpose of assessing the reasonableness of the outcome" (at para 15). The Court summed up their guidance at para 16:

·        In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. 

30     However, a Court is not expected to look to the record to fill in gaps to the extent that it rewrites the reasons. In Pathmanathan v Canada (Citizenship and Immigration), 2013 FC 353 at para 28, 430 FTR 192 [Pathmanathan], Justice Rennie noted that Newfoundland Nurses "is not an invitation to the supervising court to re-cast the reasons given, to change the factual foundation on which it is based, or to speculate as to what the outcome would have been had the decision-maker properly assessed the evidence."

31     Similarly in Kamolafe v Canada (Citizenship and Immigration), 2013 FC 431, 16 Imm LR (4th) 267, relied on by the applicant, Justice Rennie noted, at para 11, that "Newfoundland Nurses is not an open invitation to the Court to provide reasons that were not given, nor is it licence to guess what findings might have been made or to speculate as to what the tribunal might have been thinking."

The decision is not reasonable

The Citizenship Judge fettered her discretion

32     The applicant relies on Singh Bajwa v Canada (Citizenship and Immigration), 2012 FC 864 at para 46, 415 FTR 107, as support for his position that the Citizenship Judge limited her consideration to the Guidelines rather than considering the law and, as a result, fettered her discretion. In that case, Justice O'Keefe found that the fettering of discretion was reviewable on the standard of correctness and the decision-maker was owed little deference.

33     I agree that the Citizenship Judge's narrow consideration of the examples in the Guidelines as the only possible good and sufficient causes demonstrates a fettering of her discretion.

34     The Guidelines are meant to provide guidance, as the name suggests, and not to dictate the decision or to provide a checklist. The Guidelines, on their own, do not fetter the decision-maker's discretion; rather, it is the reliance on the Guidelines instead of the law and the Regulations that is the problem. The Citizenship Judge has the discretion to consider a range of explanations, some of which would be analogous to the examples and others which would not; then must determine if the explanation provided by the applicant is a good and sufficient cause.

35     Whether the correctness or reasonableness standard of review applies does not change the outcome in the present case. However, I prefer the approach of Justice Stratas in Stemijon Investments Ltd v Canada (Attorney General), 2011 FCA 299 at paras 22-23, 341 DLR (4th) 710, where he first explained the notion of fettering of discretion and then found that this should be considered in the context of assessing the reasonableness of the decision. He offered this approach at para 24:

·        [24] Dunsmuir reaffirms a longstanding, cardinal principle: "all exercises of public authority must find their source in law" (paragraphs 27-28). Any decision that draws upon something other than the law -- for example a decision based solely upon an informal policy statement without regard or cognizance of law, cannot fall within the range of what is acceptable and defensible and, thus, be reasonable as that is defined in Dunsmuir at paragraph 47. A decision that is the product of a fettered discretion must per se be unreasonable. 

36     I agree that, in the present case, the decision is the product of fettered discretion and is, therefore, unreasonable.

37     If I am wrong in this finding, I would also find that the decision is unreasonable because the reasons do not permit the Court to understand why the Citizenship Judge made the decision or whether the decision falls within the range of acceptable outcomes.

The Reasons are not adequate

38     Although the adequacy of reasons is not a stand alone ground for judicial review, the pasting in of a paragraph from the applicant's letter setting out the reason he missed the Oath Ceremony, followed by the pasting in of the examples of acceptable explanations from CP 13, section 6.5 cannot be considered reasons. Although there is no statutory requirement to provide reasons, there remains a basic requirement to advise the applicant why his explanation is not a good and sufficient cause. The cut-and-paste approach does not disclose the reasoning of the Citizenship Judge. The respondent has offered potential reasons to fill in this gap, but these are not on the record and call for speculation, which the Court may not engage in.

39     As noted in Jeizan, above, by Justice de Montigny at para 17:

·        [17] Reasons for decisions are adequate when they are clear, precise and intelligible and when they state why the decision was reached. Adequate reasons show a grasp of the issues raised by the evidence, allow the individual to understand why the decision was made and allow the reviewing court to assess the validity of the decision: see Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] S.C.J. No. 23 at para. 46; Mehterian v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 545 (F.C.A.); VIA Rail Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25 (F.C.A.), [2001] 2 F.C. 25 (C.A.), at para. 22; Arastu, above, at paras. 35-36. 

40     In Canada (Citizenship and Immigration) v Arastu, 2008 FC 1222 at paras 35-36, 174 ACWS (3d) 336, Justice Russell explained the benefits of reasons. Although that case dealt with a decision made under section 14 of the Act, for which there is a requirement for reasons to be provided, that decision affected the status of the applicant, as it does in the present case:

·        [35] The duty to provide reasons is a salutary one. Not only do reasons foster better decision-making by ensuring that the issues and judge's reasoning are well-articulated, but they also provide a basis for an assessment of possible grounds for appeal or review. This is particularly important when the decision is subject to a deferential standard of review: VIA Rail Canada Inc. v. National Transportation Agency, 193 D.L.R. (4th) 357 (F.C.A.) at paragraphs 17 and 19. 

·        [36] The duty requires that the reasons be adequate. They must set out the findings of fact and must address the major points in issue. The reasoning process followed by the decision maker must be set out and must reflect consideration of the main relevant factors. Further, a determination of whether reasons are adequate must be considered in light of the particular circumstances of each case. Where a person's status is at issue, the requirements are more stringent: Baker at paragraphs 25, 75 and Via Rail at paragraphs 21-22. 

41     The reasons required of the Citizenship Judge to either agree or disagree with an applicant's explanation for failing to attend to take the Oath need not be detailed but should disclose not only that the judge has considered the explanation offered but why the judge found that the explanation was not a good and sufficient cause. In the present case, the decision affects the status of the applicant. He is no longer one small step from Citizenship. Given the consequences, more than the brief reference to his explanation, the examples and the check mark indicating lack of agreement is required.

42     The guidance provided by Newfoundland Nurses calls on the Court to consider whether the reasons, supplemented by the record, allow it to understand why the Citizenship Judge made the decision and determine whether the decision falls within the range of acceptable outcomes. I have looked to the sparse record to supplement and support the outcome, but it does not assist. The Court cannot rewrite the decision with reasons which are not there (Pathmanathan, above).

Conclusion

43     The application for judicial review is allowed. The applicant's explanation for not attending to take the Oath of Citizenship must be reconsidered in accordance with the statutory provisions now in force. Once the decision is made, it should be communicated to the applicant promptly. No costs are ordered.

JUDGMENT

·        THIS COURT'S JUDGMENT is that:

·        1. 

The application for judicial review is allowed. 

·        2. 

The applicant's explanation for not attending to take the Oath of Citizenship must be reconsidered in accordance with the statutory provisions now in force. Once the decision is made, it should be communicated to the applicant promptly. 

·        3. 

No costs are ordered. 

KANE J.