SERGIO R. KARAS INTERVIEWED ON CCTV AMERICA ON IMMIGRANT INVESTOR PROGRAM

I was interviewed for by CCTV America on the cancellation of the Immigrant Investor Program.

http://english.cntv.cn/program/china24/20140221/100700.shtml

http://english.cntv.cn/program/china24/20140221/100700.shtml

APPLICANTS CAUGHT BY FEDERAL SKILLED WORKER APPLICATION CAP

The applicants below argued that their files should be processed despite the application cap being reached in the Federal Skilled Worker Program. the court dismissed the application.

Mannil v. Canada (Minister of Citizenship and Immigration)

Between
Anju Joseph Mannil, Bency Susan Thomas, Debbie Osifo, Eduardo
Racoma, Misan Ragheb Aburmaileh, Jocelyn Mae Salas, Roseline
Jacob, Joffrey Cacananta, Khaled Al Qawasmeh, Tamara Ahmad
Mohamad Shaker, Frank Lester Encisco, Janet Alair Arabia, and
Maria Candida Manahan Alcaraz, Applicants, and
The Minister of Citizenship and Immigration, Respondent

[2014] F.C.J. No. 63

2014 FC 70

Docket IMM-8671-11

 Federal Court
Vancouver, British Columbia

Shore J.

Heard: January 20, 2014.
Judgment: January 21, 2014.

(36 paras.)

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REASONS FOR JUDGMENT AND JUDGMENT

SHORE J.:--

·       I. 

Overview

1     Visa applicants do not have the right to have their applications processed, particularly, if not received within the timelines set according to Ministerial Instructions [MI] (Lukaj v. Canada (Minister of Citizenship and Immigration), 2013 FC 8, 424 F.T.R. 243 at para 41-42).

·       II. 

Introduction

2     The Applicants seek judicial review of the refusal of a Service Delivery Agent [Agent] to process their applications for permanent residence under the federal skilled worker class [PR application] because they fell outside of their annual National Occupation Classifications cap [annual cap] imposed by the MI-2 issued pursuant to section 87.3 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].

·       III. 

Background

3     Mr. Anju Joseph Mannil, the Principal Applicant, and eight other Applicants, all of whom were represented by the same immigration consultant, prepared PR applications under the National Occupations Classifications [NOC] codes 3152 (nurse) and 3131 (pharmacist).

4     On June 26, 2011, the Applicants explained that the immigration consultant brought the completed applications to FedEx and provided special instructions to hold the package for delivery until July 4, 2011.

5     On June 30, 2011, the PR applications were received by Citizenship and Immigration Canada [CIC].

6     On the same day, the annual caps under the MI-2 ended. The new Ministerial Instruction 3 [MI-3] took effect on July 1, 2011. This new instruction re-opened the application process for all categories under the federal skilled workers class.

7     On July 18, 2011, the Agent reviewed the Applicants' PR applications and refused to process them on the basis that they were received after the annual caps for the relevant NOC codes under the MI-2 had already been reached.

8     On July 19, 2011, CIC mailed the PR applications and decision letters to the immigration consultant at her mailing address in Dubai.

9     On September 6, 2011, the immigration consultant contacted CIC by email to inquire about the status of several PR applications. In her email, she noted that FedEx had delivered the packages on June 30, 2011, although she had provided specific instruction to FedEx to hold delivery until July 4, 2011. At this time, the annual caps under MI-3 for NOC code 3152 (nurses) and NOC code 3131 (pharmacist) had already been reached.

10     On September 19, 2011, the Agent responded to the immigration consultant indicating that he could not provide a response to her"bulk" inquiry for privacy reasons, as it concerned several applications; however, the Agent noted that if the PR applications were received on June 30, 2011, they would have been reviewed under the MI-2, and as a result, would be returned as the annual cap under the MI-2 had been reached by that date.

11     On October 29, 2011, and November 3, 2011, the immigration consultant sent another two emails regarding the status of several applications.

12     On November 15, 2011, the Agent responded to the immigration consultant's further inquiry by sending a separate email for each of the Applicants individually, explaining the decision made with regard to their PR application on July 18, 2011. These emails are the subject matter of the present judicial review.

13     On November 28, 2011, nine of the Applicants in this matter filed an application for leave and for judicial review of the Agent's decision. On January 23, 2012, four other Applicants filed similar applications.

14     These 13 applications have been consolidated by the Court and handled as a specially-managed hearing.

·       IV. 

Decision under Review

15     In each of the nine emails, dated November 15, 2011, the Agent explained that the PR applications had been received after the annual caps for NOC code 3152 (nurses) and/or NOC code 3131 (pharmacist) under MI-2 had already been reached, and as a result, the applications could not be processed as they exceeded the cap limits.

16     The Agent explained that each Applicant's PR application had been returned unprocessed (Decision letter, Certified Tribunal Record at p 4).

·       V. 

Issue

17     Did the Agent breach the rules of procedural fairness by failing to advise the Applicants in a timely manner that their applications would not be considered for processing?

·       VI. 

Relevant Legislative Provisions

18     Section 87.3 of the IRPA is relevant:

·       87.3 (1) This section applies to applications for visas or other documents made under subsection 11(1), other than those made by persons referred to in subsection 99(2), sponsorship applications made by persons referred to in subsection 13(1), applications for permanent resident status under subsection 21(1) or temporary resident status under subsection 22(1) made by foreign nationals in Canada and to requests under subsection 25(1) made by foreign nationals outside Canada. 

·       Attainment of immigration goals 

·       (2) 

The processing of applications and requests is to be conducted in a manner that, in the opinion of the Minister, will best support the attainment of the immigration goals established by the Government of Canada. 

·       Instructions 

·       (3) 

For the purposes of subsection (2), the Minister may give instructions with respect to the processing of applications and requests, including instructions 

·       (a) establishing categories of applications or requests to which the instructions apply; 

·       (b) establishing an order, by category or otherwise, for the processing of applications or requests; 

·       (c) setting the number of applications or requests, by category or otherwise, to be processed in any year; and 

·       (d) providing for the disposition of applications and requests, including those made subsequent to the first application or request. 

* * *

·       87.3 (1) Le présent article s'applique aux demandes de visa et autres documents visées au paragraphe 11(1), sauf celle faite par la personne visée au paragraphe 99(2), aux demandes de parrainage faites par une personne visée au paragraphe 13(1), aux demandes de statut de résident permanent visées au paragraphe 21(1) ou de résident temporaire visées au paragraphe 22(1) faites par un étranger se trouvant au Canada ainsi qu'aux demandes prévues au paragraphe 25(1) faites par un étranger se trouvant hors du Canada. 

·       Atteinte des objectifs d'immigration 

·       (2) 

Le traitement des demandes se fait de la manière qui, selon le ministre, est la plus susceptible d'aider l'atteinte des objectifs fixés pour l'immigration par le gouvernement fédéral. 

·       Instructions 

·       (3) 

Pour l'application du paragraphe (2), le ministre peut donner des instructions sur le traitement des demandes, notamment en précisant l'un ou l'autre des points suivants : 

·       a) les catégories de demandes à l'égard desquelles s'appliquent les instructions; 

·       b) l'ordre de traitement des demandes, notamment par catégorie; 

·       c) le nombre de demandes à traiter par an, notamment par catégorie; 

·       d) la disposition des demandes dont celles faites de nouveau. 

19     Section 87.3, first introduced in the IRPA in February 2008, authorized the Minister of Citizenship and Immigration Canada to issue Ministerial Instructions regarding the priority in which applications would be processed, and removed the obligation to process every application received. These Ministerial Instructions provided for a triage of applications according to revised eligibility criteria.

20     In the present case, MI-2 is the applicable set of ministerial instructions. As explained in Liang v. Canada (Minister of Citizenship and Immigration), 2012 FC 758, 413 F.T.R. 145:

·       [7] ... The first set of Ministerial Instructions was published on November 29, 2008 (MI1). They applied to applications received on or after February 27, 2008. Pursuant to the MI1, applications would only be eligible to be processed if the applicant: had experience in one of 38 listed occupations; an arranged offer of employment (AEO); or was legally residing in Canada as a temporary foreign worker or international student. 

·       [8] The MI1 were ultimately unsuccessful in restraining the growth of applications. The backlog diminished at first, but eventually application levels increased beyond the levels before Bill C-50. Thus, on June 26, 2010, the second set of Ministerial Instructions was published (MI2). They applied to applications received on or after that date. The MI2 directed that applications would only be eligible to be processed if the applicant had an AEO or the applicant had experience in one of 29, as opposed to 38, listed occupations. The MI2 introduced a global cap on FSW applications: a maximum of 20,000 applications (excluding those with an AEO) were to be placed into processing each year. Within that cap, a maximum of 1,000 applications per occupational category were to be processed each year. Applications exceeding that cap would be returned unprocessed. 

·       VII. 

Standard of Review

21     The issue of undue delay in issuing a decision is one of procedural fairness and has been recognized as reviewable on the standard of correctness (Snieder v. Canada (Attorney General), 2013 FC 218 at para 20).

·       VIII. 

Analysis

22     The Applicants present one central argument - the Agent erred in failing to inform them of his decision in a timely manner. The Applicants do not contest the decision or any of its content; in fact, they concede that the decision was the appropriate one to make (Applicant's Memorandum of Fact and Law at para 21).

23     The Applicants also reiterate, in great length, the circumstances involving FedEx's early delivery of the PR applications, which they assert led to the Agent's refusal to process the applications. The Applicants request that the Court consider these special circumstances, which were beyond their control, in determining whether there was a breach of procedural fairness.

24     The Court is of the view that the Applicants have not established a breach of procedural fairness due to an unreasonable delay.

25     There are three requirements that must be met if a delay is to be considered unreasonable:

·       1) 

The delay in question has been longer than the nature of the process required, prima facie; 

·       2) 

The applicant and his counsel are not responsible for the delay; and 

·       3) 

The authority responsible for the delay has not provided satisfactory justification. 

·       (Liang, above, at para 26; reference is also made to Snieder, above) 

26     In the present case, the Agent rendered his decision 18 days after having received the PR applications; despite having received 1,500 applications in the first week of July 2011. He then mailed the decision letters and unprocessed PR applications on July 19, 2011, one day later.

27     As submitted by the Respondent, and with which the Court agrees, the Agent assessed and provided notice of the negative decision to the Applicants in a timely manner.

28     Although neither party presented any evidence as to what would normally consist of a reasonable delay in the PR application process for the federal skilled worker class, in Liang, above (at para 29), this Court found that 6 to 12 months was a reasonable delay within which such applicants could expect to receive a decision from CIC under MI-1. The Agent's decision falls well within this range. The Court therefore finds that the first part of the test set out in Liang has not been established; the delay in question was not longer than the nature of the process required. (The Court recognizes that the delays set out in Liang were in regard to cases processed under MI-1; however, it finds that a similar characterization of "reasonable delay"would be found under MI-2; notably in light of its objective to further restrain the growth of applications and allow CIC to clear its backlog).

29     The Court further finds that the second part of the test was not met, as it would appear the Applicants' immigration consultant was responsible for the delay.

30     It is well-established that a decision-maker has a duty to prove that notice of a negative decision was actually sent or "went on its way" to an applicant; however, once the respondent proves, on a balance of probabilities, that the communication was sent, it is the applicant who bears the risk involved in a potential failure to receive the communication (Caglayan v. Canada (Minister of Citizenship and Immigration), 2012 FC 485, 408 F.T.R. 192 at para 13; reference is also made to Zare v. Canada (Minister of Citizenship and Immigration), 2010 FC 1024, [2012] 2 F.C.R. 48 and Yang v. Canada (Minister of Citizenship and Immigration), 2008 FC 124).

31     In the present case, the Applicants claim that their immigration consultant never received the decision letters sent by the Agent on July 18, 2011; however, they provided no evidence to establish that the letters were not sent or had been sent in an unreliable manner to their immigration consultant.

32     The Global Case Management System (GCMS) notes recorded by the Agent, on July 18, 2011, make explicit reference to the PR applications being returned to the Applicants by regular mail, which is standard CIC practice. There is also no dispute as to whether the immigration consultant's address on file was correct. Moreover, the evidence on the record indicates that the decision letters were successfully delivered to the immigration consultant's address in Dubai; however, they were all returned to CIC by the Dubai postal service as "unclaimed" by the addressee in January 2012 (see Exhibits EE-QQ, Affidavit of Catherine F. Brown).

33     In the absence of any evidence to rebut the presumption that the letters were properly delivered to the immigration consultant, thereby demonstrating that she was not responsible for the delay, the Court does not see a need to turn to the question of whether there was a reasonable justification for the delay.

34     Accordingly, as the tripartite test for an unreasonable delay set out in Liang, above, was not met, the Court does not find that there are sufficient grounds to justify its intervention. The delay was reasonable.

35     While it is quite clear that the Applicants are dismayed about the early delivery of their PR applications leading to their rejection, it was not for CIC to remedy the issue. The Agent applied the law and the Ministerial Instructions as he was required; he was not open to give the Applicants special consideration and waive the annual caps. The Applicants' remedy for the early delivery of their mail lies solely with FedEx as an aggrieved client.

·       IX. 

Conclusion

36     For all of the above reasons, the Applicants' application for judicial review is dismissed.

JUDGMENT

THIS COURT ORDERS that the Applicants'application for judicial review be dismissed with no question of general importance for certification.

SHORE J.

CONTRADICTORY EVIDENCE, LAcK OF CREDIBILITY IN RESIDENCY CASE

In the case below, the applicants were short of the residency requirement of 730 days in five years physical presence. Therefore, they argued at the IAD that the tribunal had to consider humanitarian and compassionate grounds because, amongst other things, they were "stateless Palestinians" , despite the fact that they were spending most of the time in the UAE. The court rejected all their arguments.

El Assadi v. Canada (Minister of Citizenship and Immigration)

Between
Malake El Assadi, Walid Sanallah, Applicants, and
The Minister of Citizenship and Immigration and the Minister
of Public Safety and Emergency Preparedness, Respondents

[2014] F.C.J. No. 50

2014 FC 58

Docket IMM-12678-12

 Federal Court
Ottawa, Ontario

Kane J.

Heard: December 16, 2013.
Judgment: January 17, 2014.

(55 paras.)

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REASONS FOR JUDGMENT AND JUDGMENT

1     KANE J.:-- This is an application for judicial review brought by the applicants of the decision of the Immigration Appeal Division of the Immigration and Refugee Board (the "IAD") made on November 21, 2012, which dismissed the appeal of their removal order under subsection 63(3) of the Immigration and Refugee Protection Act (the "Act")for failure to comply with the requirements for permanent residency in Canada.

I. Background

2     The applicants, Malake El Assadi and her son, Walid Sanallah, came to Canada on January 10, 2005 as permanent residents and remained for only 22 days before returning to the United Arab Emirates ["UAE"]. The applicants returned to Canada in 2009. Between January 10, 2005 and January 10, 2010 the applicants spent only 377 days in Canada and as a result, were deemed to have lost their permanent resident status. The applicants do not contest that they failed to spend the requisite 730 days physically present in Canada over a five year period to retain their status as required by subsection 28(2) of IRPA. The applicants, however, submit that the Board's decision that humanitarian and compassionate grounds ["H&C"] do not warrant an exemption from the residency requirement is unreasonable.

3     Both applicants are stateless Palestinians registered in Lebanon with the United Nations Relief and Works Agency for Palestine Refugees ["UNRWA"]. Mrs. El Assadi has lived in the UAE since 1980. Walid was born in the UAE but is also a stateless UNRWA refugee.

4     The principal applicant's husband, Mr Sanallah, came to Canada in 2004 with his older son, Khaled. Mr Sanallah has travelled back and forth since then, spending most of his time in the UAE. He is not a party to the proceedings, but was a key witness given that the applicants'claim was largely based on the influence of Mr Sanallah as head of the family who made all the decisions and controlled the finances. He testified at the hearing that he still has his permanent residence in Canada. Khaled, who remained in Canada since 2004 is now a citizen. The family's oldest son, Ahmed, remains in the UAE.

5     For the reasons that fallow, the application for judicial review is dismissed.

II. The Decision under Review

6     The IAD noted that the applicants' degree of non-compliance with their residency obligation was significant, and therefore, the H&C considerations to overcome the requirements must also be significant.

7     The IAD considered the "Ribic" factors (see Ribic v Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4), approved by the Supreme Court in Chieu v Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84), which are to be taken into account in determining whether H&C considerations warrant an exemption from compliance with the residency requirements. These factors include: the applicants' initial and subsequent establishment in Canada; their reasons for departure and for remaining abroad; their attachment to Canada; whether there were reasonable attempts made to return to Canada at the earliest possible opportunity; and, the existence of special or particular circumstances.

8     The IAD concluded that the applicants lacked credibility and that they had failed to meet their burden of proof on a balance of probabilities and that there were insufficient grounds for H&C considerations to warrant the granting of special measures. The Board noted it was "obliged to conclude that they left Canada without just cause and did not return at the earliest possible opportunity." The Board acknowledged that the loss of their status would entail "some hardship", but that it was not a sufficient H&C consideration "in light of all the negative factors".

9     The IAD assessed the testimony of the applicants and Mr Sanallah, along with their son, Khaled and uncle/brother-in-law, Talal Sanallah, in great detail and in its consideration of the Ribic factors.

10     The IAD made very strong adverse credibility findings against the applicants and Mr Sanallah based on the inconsistency in their testimony, and based on Mr Sanallah's evasive responses.

11     The IAD rejected the assertion that exceptional circumstances required Mr Sanallah to remain in the UAE. The IAD concluded that he made little, if any effort, to find employment in Canada. Instead, Mr Sanallah chose to travel back and forth to the UAE. Mr Sanallah's testimony regarding his intentions to establish himself in Canada, his need to remain in the UAE because of a loan he had to repay, and his efforts to look for work were found not to be credible. The IAD noted that he had not resigned from his job in the UAE where he was a health inspector, and by his own evidence, did not intend to do so until he could collect his end of service payment in 2012. The IAD found that Mr Sanallah's explanation for remaining employed in the UAE was a personal decision, not a circumstance beyond his control, and not a justification for non-compliance with the residency requirements for the applicants, who remained in the UAE with him until 2009.

12     The IAD rejected the applicants' claim that cultural constraints prevented them from staying in Canada without Mr Sanallah or returning to Canada from the UAE without him. While Mrs El Assadi indicated that she had wanted to stay in Canada in 2005 but tradition required her to obey her husband, the IAD noted inconsistencies in her testimony particularly since she did return in 2009. The evidence about whether Mr Sanallah was opposed to or in agreement with that decision conflicted and the IAD did not accept the explanation that the applicants were encouraged to return to Canada by a friend who lived here.

13     The IAD also considered Walid's claim that it was out of his control to remain in Canada in 2005 because he was a minor. Extensive testimony was considered from his father and uncle regarding why he could not have remained in Canada with his uncle and attend school. The IAD concluded that Mr Sanallah had refused to permit him to remain in Canada. The IAD also referred to the Federal Court's finding that parental decisions should not enhance claims for relief where applicants are minors at the time they obtained their permanent resident status (Lai v Canada (Minister of Citizenship and Immigration Canada), 2006 FC 1359, [2006] F.C.J. No. 1698).

14     The IAD considered the applicants' efforts to establish themselves since their return in 2009, including Walid's employment and enrolment in a pre-nursing program at Algonquin College, and Mrs El Assadi's enrolment in English classes and volunteer activities and characterised this as "too little too late".

15     The IAD acknowledged that the applicants have family residing in Canada and that Walid and Khaled would support Mrs El Assadi. The IAD, however, found that the family was more established in the UAE than in Canada and their dislocation had been voluntary and self-imposed.

16     The IAD did not accept the applicants'submission that they were now unable to obtain UAE resident status. The IAD found Mrs El Assadi's testimony not credible because she first stated that their residencies were cancelled automatically then said, as confirmed by Walid, that Mr Sanallah had cancelled them in retaliation for them leaving the UAE. The IAD also found Mr Sanallah's testimony that Walid would be unable to resume his residency in the UAE to be not credible, observing that his brother Ahmed resides and works in the UAE.

17     The IAD also found that the applicants'ignorance of their own residency obligations in Canada did not justify non-compliance.

18     The IAD acknowledged that the applicants were stateless Palestinians. The IAD extensively questioned the applicants about their past travels to Lebanon, the family that remained there and their living arrangements.

19     The IAD noted that the applicants would face hardship in the event that they would return to Lebanon, but noted that they had returned to Lebanon in the past and stayed for months with family. The IAD found that the loss of their permanent resident status in Canada would result in some hardship but that this hardship was not sufficient to outweigh all the negative factors in this case.

III. Standard of review

20     It is well-settled that the standard of review for decisions of the IAD is reasonableness. In Shaath v Canada (Minister of Citizenship and Immigration), 2009 FC 731, [2010] 3 F.C.R. 117, Justice Lemieux discussed the Supreme Court's decision, Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, with respect to a stateless Palestinian who, like the applicants, appealed a departure order issued due to failure to comply with the residency obligation. Justice Lemieux considered subsection 63(4) of the Actwhich provides that the IAD must be satisfied that sufficient H&C considerations warrant special relief in order to allow an appeal:

·       [53] For the reasons that follow, I am of the view this judicial review application must be dismissed. Khosa makes it clear where reasonableness standard applies, it requires deference and reviewing courts are not allowed to substitute their own appreciation of the appropriate solution but rather must determine if the outcome falls "within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law". 

·       [54] Justice Binnie pointed out in Khosa, that paragraph 67(1)(c) of IRPA which applies here, provides a power to grant "exceptional relief and calls for a fact-dependent and policy driven assessment". 

·       [...] 

·       [56] Returning to Khosa, Justice Binnie concluded the IAD's decision fell within the range of outcomes reasonably open to it, a view which he said was predicated on the role and function of the IAD, as well as the fact Mr. Khosa did not contest the validity of the removal order made against him but only "sought the exceptional and discretionary relief that is available only if the IAD itself is satisfied that "sufficient humanitarian and compassionate considerations warrant special relief."" 

·       [57] Justice Binnie made another point in his conclusion. It does not matter whether the judge agrees with a particular IAD decision or not. That is beside the point as the decision was entrusted by Parliament to the IAD. 

21     This Court has confirmed that deference is owed to decisions of the IAD concerning findings of fact or of credibility, including where H&C considerations are taken into account for failure to meet residency requirements. In Digilov v Canada (Minister of Citizenship and Immigration), 2010 FC 615, [2010] F.C.J. No. 743, Justice Boivin noted that"[t]he IAD is in the best position to assess the lack of explanations given by the applicant. It is not the role of this Court, in the case at bar, to substitute its judgment for the findings of fact made by the IAD concerning the applicant's credibility." (at para 23). Justice Boivin cited Sanichara v Canada (Minister of Citizenship and Immigraton), 2005 FC 1015, [2005] F.C.J. No. 1272, at para 20 where Justice Beaudry noted:

·       The IAD, in a hearing de novo, is entitled to determine the plausibility and credibility of the testimony and other evidence before it. The weight to be assigned to that evidence is also a matter for the IAD to determine. As long as the conclusions and inferences drawn by the IAD are reasonably open to it on the record, there is no basis for interfering with its decision. Where an oral hearing has been held, more deference is accorded to the credibility findings. 

22     In this case, the applicants contest only the determination that there are insufficient H&C grounds to exempt them from the residency requirements, which they admit they have not met.

23     The applicants submit that the decision was not reasonable, primarily because the IAD did not give sufficient consideration to the hardship they would face upon return to Lebanon as stateless refugees or to their establishment in Canada since 2009.

24     The issue is whether the IAD's findings and overall decision that there were insufficient H&C grounds to overcome the applicants' failure to meet the residency requirement were reasonable. It is not for the Court to re-weigh the factors and re-balance the positive and negative factors to determine if H&C grounds justify an exemption.

25     A high degree of deference is owed given that the IAD held an oral hearing in which the applicants testified, along with Mr Sanallah, Talal Sanallah and Khaled Sanallah. Their counsel and the Minister's counsel questioned them carefully as did the IAD. This provided many opportunities to clarify the inconsistencies in their evidence and the vague answers of Mr Sanallah.

IV. The Issues

26     The applicants have raised three issues: first, that the IAD erred in ignoring the evidence, particularly the voluminous documentary evidence of the conditions of stateless Palestinians in assessing the hardship the applicants would endure if returned; second, that the Board microscopically analysed the evidence and the testimony of the applicants and the witnesses to support a view that H&C considerations were not justified and in doing so, misstated some of the testimony; and third, that the IAD made findings, particularly regarding the applicants' ability to return to the UAE, without any evidence.

Did the IAD err in ignoring evidence, particularly evidence of the situation of stateless Palestinians in Lebanon?

27     The applicants submit that the IAD ignored voluminous documentary evidence regarding the situation for Palestinians in Lebanon which described: the terrible living conditions in refugee camps; Palestinians'exclusion from state services; their risk of arbitrary detention; and, restrictions on their mobility, residency and citizenship

28     The applicants argue that the IAD's brief reference to "some hardship" highlights that it failed to consider the evidence that supports the applicants' claims and contradicts the IAD's own findings and is a reviewable error (Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), 157 F.T.R. 35, [1998] F.C.J. No. 1425 at para 17) [Cepeda-Gutierrez].

29     The respondent submits that the IAD reasonably found that the applicants were not credible, and as a result, they did not discharge their burden of demonstrating sufficient H&C grounds to warrant an exemption. Moreover, even if the applicants had been found to be credible, the IAD's analysis of the Ribic factors establishes that the applicants had not satisfied the criteria to warrant an exemption.

30     The respondent submits that the IAD did consider the hardship of returning to Lebanon, although not in great detail, and found that this hardship was insufficient given that the applicants travelled there previously and have close family there.

The IAD did not ignore evidence

31     The IAD did not ignore the documentary evidence, although the IAD did appear to focus more on the testimony of the applicants and witnesses.

32     The IAD considered all the evidence and how it addressed the Ribic factors.

33     The IAD noted the evidence of establishment in Canada since 2009 including Walid's language courses and enrolment in college as well as Mrs El Assadi's enrolment in English courses, a computer programme and a course to facilitate integration. The IAD also recognized that the applicants had family members in Canada, as well as in Lebanon and the UAE.

34     The IAD found that the applicants did not intend to establish themselves in Canada when they arrived for several reasons. Mr Sanallah did not make any real efforts to find employment and had not resigned from his job in the UAE and planned to remain employed in the UAE for several years so he could collect an end of service payment. The applicants failed to provide a satisfactory explanation for their departure 22 days after arriving, noting that it was either for financial reasons or because living with their uncle and his family was too crowded. The applicants also failed to provide a satisfactory explanation for not returning to Canada earlier, saying that Mr Sanallah would not agree, but had ultimately arrived in 2009 apparently without his agreement. In addition, the applicants had travelled from the UAE to Lebanon on three occasions, albeit for reasons related to family illness, and had remained for months. The IAD considered the applicants' establishment or attachment to Canada and found that it was "too little, too late", referring to the fact that these efforts only occurred after 2009 when they returned and realised that their status was in jeopardy. The IAD found that the applicants had greater attachment to the UAE where they lived since 1980 and where they returned after 22 days in Canada. The IAD also found that Mr Sanallah's testimony that they could not work in the UAE or regain residency was not credible.

35     The applicants' establishment in Canada since 2009, four years after they were granted permanent resident status, was reasonably found to be "too little, too late" - in other words, these efforts did not overcome the negative factors and were insufficient to warrant an exemption.

36     I do not agree that the IAD ignored the documentary evidence on the situation for stateless Palestinians. The IAD did not specifically refer to these documents but did acknowledge that the applicants were stateless Palestinians. The record reveals that their counsel and the IAD member questioned the applicants about their connection to and experiences in Lebanon, including about their remaining family there, their family's living situation, whether they lived in or near the refugee camp, where the applicants stayed when they visited and about their experiences and conditions more generally, as well as about their experience in the UAE since 1980.

37     The IAD need not mention each piece of evidence and is presumed to have considered all the evidence presented.

38     The applicants, however, argue that the IAD erred in not referring to the contradictory evidence.

39     In Cepeda-Gutierrez, Justice Evans, as he then was, held:

·       [16] On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact. 

·       [17] However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact. 

40     In this case the IAD's finding was not contradictory to the documentary evidence referred to by the applicants. The IAD found that there would be "some hardship". The applicants argue that the hardship would be far greater than "some" and it should have been given more weight in the consideration of the H&C grounds. This would call for a re-weighing of the evidence, which is not the role of the Court. It was open to the IAD to assess the weight of the evidence of hardship in the event the applicants returned to Lebanon and then to determine that this hardship was not sufficient to outweigh all the other negative factors identified by the IAD.

41     In addition, the IAD found that the applicants' testimony and particularly that of Mr Sanallah, that they could not return to the UAE, was not credible. The IAD concluded that the applicants had a greater attachment to the UAE where they had lived most of their lives, although the IAD acknowledged that "in the event" they returned to Lebanon, there would be some hardship.

Did the IAD err by microscopically analyzing the evidence without regard to the totality of the evidence?

42     The applicants submit that their detailed testimony was microscopically or selectively analyzed for inconsistencies and that the IAD made findings, including credibility findings, which were not supported by or which misstated that testimony.

43     For example, the applicants submit that there was no inconsistency in their evidence that they could not remain in Canada in 2005 and live with their uncle for financial reasons and because of over crowding due to his large family. The IAD also misstated the facts about why they were able to return in 2009 despite Mr Sanallah's lack of agreement for them to do so.

The IAD did not microscopically analyse the evidence nor did it misstate the evidence

44     The IAD carefully -- but not microscopically -- analysed the applicants' evidence. The IAD made very pointed and strong adverse credibility findings which were reasonably open to the IAD to make given that it had the benefit of hearing the oral testimony, and had questioned the applicants extensively. The IAD supported its credibility findings with specific references to the contradictions and inconsistencies in the applicants' own accounts and between their accounts and those of Mr Sanallah and Talal Sanallah.

45     The IAD's conclusion that the applicants and Mr Sanallah were not credible was based on several inconsistencies and contradictions, including: Mr Sanallah's stated intention to stay in Canada despite failing to resign from his job in the UAE; his testimony that he was unable to find work, as contrasted with his brother's testimony that he could have had a job as a janitor; Walid's claim that he wanted to stay in Canada in 2005 and the inconsistent testimony of his uncle and father about the lack of agreement to permit his uncle to be his guardian.

46     The IAD also reasonably found that Mrs El Assadi was not credible with respect to why she was unable to stay in Canada or return at an earlier date but could come on her own in 2009. The IAD observed that while she initially stated that she had to obey her husband, she returned without her husband's consent. The IAD did not accept the explanation that a friend had encouraged her to come in 2009 or that Mr Sanallah had agreed that the friend could help pay for their tickets. The testimony of Mr Sanallah, Mrs El Assadi and Walid differed on this issue. The IAD also found her testimony inconsistent regarding the cancellation of their UAE residencies .

47     With respect to the applicants' submission that the IAD should not have regarded Mr Sanallah's desire to wait for his end of service payment as a negative factor, but rather as a positive factor because this demonstrated that he did not want his family to rely on social assistance in Canada, such an approach would be contradictory to the purpose of the residency requirements. It was reasonable for the IAD to consider this to be a negative factor; it demonstrated that there was no or little intention to establish the family in Canada in 2005 since Mr Sanallah would not receive his end of service payment until 2012.

Did the IAD err by making findings of fact without any evidence before it?

48     The applicants submit that the IAD erred in concluding that the applicants could obtain temporary resident permits for the UAE despite the absence of evidence and the contradictory oral evidence of Mr Sanallah.

49     The applicants also submit that the decision should have focused on their return to Lebanon -- which the IAD considered only minimally -- rather than on whether they could return to the UAE.

50     The applicants also submit that the IAD erred in referring to Mr Sanallah as if he were an applicant. For example, the IAD stated that, "Mr. Sanallah has not demonstrated, on a balance of probabilities, that exceptional circumstances beyond his control obliged him to leave Canada and remain in UAE".

The Board did not err in making findings in the absence of evidence

51     Although Mr Sanallah was not an applicant, the applicants' submissions that they should be exempt from the requirements to retain their permanent resident status repeatedly relied on Mr Sanallah's role as head of the family and decision maker, who basically controlled their ability to remain in or return to Canada. He was, therefore, a key witness to support their claim of H&C grounds. The IAD reasonably found that his testimony in several respects was not credible. The transcript supports these findings as his evidence was vague, inconsistent and he avoided many of the questions posed.

52     The IAD did not err in concluding that there was no evidence to corroborate the claim that the applicants could not resume their residency in the UAE. The applicants had the burden of demonstrating that sufficient H&C considerations existed to warrant an exemption from the residency requirements of the Act. This included demonstrating that they were exposed to hardship on the basis that they were ineligible for UAE residency and would be forced to return to Lebanon. The only evidence before the IAD was the oral testimony of the applicants and Mr Sanallah. The IAD found inconsistencies in their testimony about how the applicants lost their residency and whether they would be able to reapply. Mrs El Assadi initially said their residency was automatically cancelled after six months away but revised her testimony saying that her husband had cancelled it in retaliation after they left in 2009.

53     The applicants only gave vague answers to questions about their ability to reapply for the permits. Mr Sanallah's explanation of the visa process in the UAE and why Walid would be unable to obtain a resident permit was also evasive and based exclusively on his own unsupported experiences and was not believed. The IAD reasonably found that the applicants and Mr Sanallah attempted to mislead the IAD regarding their right to return to the UAE.

54     The IAD did not err in considering the applicants'return to the UAE, and not to Lebanon. Mrs El Assadi had lived in the UAE since 1980 with her husband and sons and Walid had been born and spent most of his life there. The Board was aware that the applicants were stateless and may be returned to Lebanon: it held that they would experience "some hardship"if that occurred, but it was outweighed by other factors.

55     Although the applicants take the position that the IAD should have given positive weight to Mr Sanallah's testimony that he has now learned from his mistakes, that his family should have remained in Canada but that he thought he was doing the 'right thing' by remaining in the UAE where he could work and repay his debts before coming to Canada, and that these mistakes should not negatively impact the applicants' status, this awareness unfortunately comes too late to benefit the applicants. Moreover, this reiterates some explanations that the IAD found not to be credible. It is incumbent on newcomers to Canada to know their obligations and their rights. Although the applicants may have been quite dependant on Mr Sanallah for the decisions which affected them, they had a responsibility to satisfy the residency requirement and because they could not do so, they had the burden to establish that there were exceptional circumstances to overcome those requirements. The IAD reasonably found that they did not do so.

JUDGMENT

·       THIS COURT'S JUDGMENT is that: 

·       1. 

The application for judicial review of the decision of the Immigration Appeal Division of the Immigration and Refugee Board made on November 21, 2012 is dismissed. 

·       2. 

There is no question for certification. 

KANE J.

SERGIO R. KARAS QUOTED IN NATIONAL POST STORY ON FOREIGN ADOPTIONS AND IMMIGRATION

Regina doctor who lied to Ukrainian authorities on adoption papers can’t raise children in Canada, court rules | National Post



February 12, 2014

Regina doctor who lied to Ukrainian authorities on adoption papers can't raise children in Canada, court rules

By Tristin Hopper

A Regina medical doctor has been barred from raising her newly adopted children in Canada after immigration officials ruled she unlawfully secured the children from a Ukrainian orphanage through an elaborate ruse.

"She is responsible for the position in which the children now find themselves," reads a recent ruling by a Saskatchewan Federal Court upholding the decision of the Canadian Citizenship & Immigration Ministry, adding the unnamed children may be henceforth denied "a normal family life."

The case concerns Svitlana Cheshenchuk, a Ukraine-born doctor, who came to Saskatchewan in 1998 and now has Canadian and Ukrainian citizenship.

In the summer of 2011, Dr. Cheshenchuk flew to her hometown of Vinnitsa, where she has an apartment, and adopted two children, a brother and sister, then aged three and four respectively.

The adoptions were not in accordance with Ukrainian law

But when she tried to bring the children back to Saskatchewan, a citizenship and immigration officer at the Canadian embassy in Kyiv uncovered a "serious irregularity" in their adoption papers. The official concluded the adoption order would have never have been approved if Ukrainian authorities had known Dr. Cheshenchuk intended to take the children abroad.

Ukrainian law is quite strict about allowing foreign adoptions. Foreign parents, even if they are dual citizens such as Dr. Cheshenchuk, can only adopt children older than five. Even then, officials are reluctant to allow adoption of children who are not disabled or form part of a group of four to five siblings.

An adoption fact sheet drafted by the Ukrainian embassy in Washington says it is "almost impossible" to adopt a healthy five- to six-year-old, or even a seven- to eight-year-old child with no siblings.

In what Canadian immigration officials would allege was a deliberate "misrepresentation," Dr. Cheshenchuk applied for a domestic adoption. She did not mention her Canadian citizenship or her 13 years in Regina.

And although she is married to a Canadian, Wojciech Ziarko, she also claimed she was a single mother, producing divorce papers from a previous marriage as evidence.

When all this became known to Canadian immigration officials, they denied her application for Canadian citizenship for the children, arguing "Ukrainian legislation on international adoptions was not respected."

In a submission to Federal Court, the immigration ministry justified the decision by arguing Kyiv is strict about foreign adoptions for the precise purpose of keeping children in Ukraine.

It added Ukrainian authorities would never have approved Dr. Cheshenchuk's adoption "had [she] disclosed that she was a Canadian citizen residing in Canada, even if she also has connections to Ukraine and has been spending time in Ukraine."

In short, concluded a Federal Court document, "the adoptions were not in accordance with Ukrainian law."

Ms. Cheshenchuk testified she went to Ukraine with no ulterior motives.

The court seems to be sending a strong message to prospective adoptive parents not to skirt local law

She did not mention her Canadian residency, she said, because she was legitimately hoping to remain permanently in Ukraine and work as a translator. She changed her mind after her finances began to dwindle.

As for her husband, she said at the time of the adoption they had legally separated because of "difficulties in their relationship," but reunited after she returned to Regina.

Last month, a federal court judge called the explanations "unconvincing."

For starters, only three months before her purportedly permanent departure to Vinnitsa, Ms. Cheshenchuk had obtained approval from the Saskatchewan government to bring home two adopted Ukrainian children.

In addition, the children had only been in Dr. Cheshenchuk's care for five days before she called the Canadian embassy in Kyiv in a bid to get visas for them.

In October 2012, Dr. Cheshenchuk went to federal court in Regina to have the immigration ministry's decision overturned.

Last month, the court not only dismissed the application, but forced her to pay costs.

Sergio Karas, an Ontario-based immigration lawyer, notes costs are rarely imposed in immigration cases and suspects the court was warning anyone who might try Dr. Cheshenchuk's ruse.

"The court seems to be sending a strong message to prospective adoptive parents not to skirt local law and regulations regarding adoptions," he said.

The children remain in Ukraine where they "are being cared for by a live-in nanny and members of [Dr. Cheshenchuk's] family," according to court documents.

The federal court decision acknowledged denying the children Canadian citizenship could "harm them" and cause them to be "unjustly penalized." Nevertheless, this was no reason to overlook the "irregularities" of Dr. Cheshenchuk's case.

"The Ukrainian law on foreign adoptions cannot be disregarded in deference to some alleged greater good that the Court has no means of assessing," it said.

National Post

FAILURE TO DiSCLOSE CRIMINAL CHARGES WILL RESULT IN CITIZENSHIP REVOCATION

In the case below, the applicant, who has multiple criminal convictions, managed to conceal charges pending against him at the time of the grant of citizenship. The concealment was discovered and the government obtained a declaration that will lead to the revocation of citizenship. THe strange thing about this case is why it took 10 years to reach the court, since the concealment of the charges and subsequent conviction under the CItizenship Act is clear and obvious  The new proposed legislation will make it easier to revoke citizenship in many circumstances.

Canada (Minister of Citizenship and Immigration) v. Campbell

Between
The Minister of Citizenship and Immigration, Plaintiff, and
Chibanbo Abonie Campbell, Defendant

[2014] F.C.J. No. 30

2014 FC 40

Docket T-187-12

 Federal Court
Toronto, Ontario

de Montigny J.

Heard: September 24, 2013.
Judgment: January 15, 2014.

(21 paras.)

---

·       REASONS FOR ORDER AND ORDER

1     de MONTIGNY J.:-- This is a motion, pursuant to s. 213 of the Federal Courts Rules, SOR/98-106, and s. 18(1)(b) of the Citizenship Act, RSC 1985, c C-29 (the "Citizenship Act") for summary judgment on the Plaintiff's claim, issued January 18, 2012. In essence, the Minister seeks an order declaring that the Defendant obtained his Canadian citizenship by knowingly concealing material circumstances because he failed to advise a citizenship official that he was charged with an indictable offence prior to obtaining his Canadian citizenship. If the Minister is successful in the action, he will then be entitled, pursuant to s. 10(1) of the Citizenship Act, to make a report to the Governor in Council which, if accepted, will result in the Defendant ceasing to be a Canadian citizen.

2     In this motion, the Minister asks the Court to grant summary judgment and issue the declaration it seeks in the action, on the basis that there is no arguable issue for trial and that the action should not proceed further. Having carefully considered both the arguments submitted by the parties and the record, I have come to the conclusion that the Minister's motion for summary judgment must be granted.

Facts

3     The Defendant was born in Kingstown, St. Vincent and Grenadines, on October 4, 1982. He became a permanent resident of Canada on January 18, 2000.

4     The Defendant completed an adult application for Canadian citizenship on March 20, 2003. The citizenship application, consistent with the legislative provisions, contained a warning that Canadian citizenship shall not be granted while the applicant is charged with an indictable offence and that applicants must inform citizenship officials of pending charges for indictable offences. Section 11 of the application form reads as follows:

·       I agree to advise Citizenship and Immigration Canada if any information on this form changes before I take the Oath of Citizenship. I understand the contents of this form. I declare that the information provided is true, correct, and complete, and that the photographs enclosed are a true likeness of me. I understand that if I make a false declaration, or fail to disclose all information material to my application, I could lose my Canadian citizenship and be charged under the Citizenship Act. 

·       I have indicated in Section 8 whether the prohibitions apply to me. 

5     On June 6, 2003, less than three months after completing his citizenship application, the Defendant was charged with various indictable offences, including trafficking in cocaine and possession of cocaine for the purposes of trafficking, contrary to s. 5(1) of the Controlled Drugs and Substances Act, SC 1996, c 19. The Defendant was further charged with trafficking on October 3, 2003.

6     On December 11, 2003, the Defendant was advised that his application was approved and invited to supply further information. On March 23, 2004, the Defendant took the oath of citizenship and became a Canadian citizen, having declined to disclose the pending criminal charges against him. The oath the Defendant signed contains a confirmation that the Defendant has no pending charges. The Defendant was eventually convicted of trafficking in cocaine on November 12, 2004, after having entered a guilty plea on that charge; the other two charges against him were withdrawn at the request of the Crown.

7     On August 25, 2005, the Defendant was charged with unlawfully procuring Canadian citizenship by failing to disclose his pending charges for cocaine trafficking. On July 3, 2007, the Defendant was convicted of the offence with which he had been charged under the Citizenship Act, namely that he knowingly concealed a material circumstance, by failing to advise a Citizenship official that he was charged with an indictable offence prior to obtaining his Canadian Citizenship, contrary to paragraph 29(2)(a) of the Citizenship Act. He was also charged a victim surcharge of $1,000.

8     In his reasons released on November 20, 2007, the judge of the Ontario Court of Justice concluded that he was satisfied beyond a reasonable doubt that the Defendant knowingly concealed material circumstances in order to procure Canadian citizenship. More specifically, he stated:

·       On all of the evidence, including Mr. Campbell's own evidence, I am not left with a doubt that Mr. Campbell knew that he was required to tell Citizenship and Immigration Canada about his criminal charges. From the day he was charged, until the day he swore his oath of citizenship, he knew he had an obligation to disclose this information to the proper authorities. For whatever reason, he failed to do so. I reject beyond a reasonable doubt the contention that Mr. Campbell was honestly mistaken about his obligations under the Act and how to fulfill them... 

·       Reasons for Judgment, at p 7. Exhibit "I" to the Affidavit of Paulette Haughton, Plaintiff's Motion Record, at p 51. 

9     The Defendant was given notice in accordance with section 18 of the Citizenship Act of the Minister of Citizenship and Immigration's intent to revoke his citizenship. The Notice was dated September 20, 2011. Consistent with the Defendant's request, the matter was then referred to the Federal Court pursuant to s. 18 of the Citizenship Act.

Issue

10     The only issue raised by this motion is whether summary judgement should be granted in favour of the Plaintiff. In other words, has the Plaintiff satisfied the Court that there is no genuine issue of fact or law for trial?

Analysis

11     No person who is charged with an indictable offence under any Act of Parliament may be granted citizenship or take the oath of citizenship: Citizenship Act, at paragraph 22(1)(b). Indeed, the notice to appear to take the oath of citizenship includes a warning that anyone charged with an offence under the Criminal Code, RSC 1985, c C-46, or other enactment is ineligible to take the oath of citizenship. The notice advises as well that anyone in this circumstance must inform the citizenship office. The Defendant was first notified that he met the requirements for citizenship on December 11, 2003 and was given a notice to appear to take the oath of citizenship on January 15, 2004. This notice, however, was returned undeliverable and a new notice was provided, with a new oath date of March 23, 2004. The Defendant claimed that the second notice did not contain the above-mentioned warning, but there is no evidence on the record to confirm the allegation. There is no reason to believe that the second notice would not have been similar to the first one and would not have contained the same warning, as it appears to be a standard form.

12     Where the Governor in Council, on a report from the Minister, is satisfied that any person has obtained, retained, renounced or resumed citizenship under the Citizenship Act by false representation or fraud or by knowingly concealing material circumstances, the person ceases to be a citizen: Citizenship Act, paragraph 10(1)(a). Paragraph 18(1)(a) and (b) of the Citizenship Act reads as follows:

·       18. 

(1) The Minister shall not make a report under section 10 unless the Minister has given notice of his intention to do so to the person in respect of whom the report is to be made and 

·       (a) 

that person does not, within thirty days after the day on which the notice is sent, request that the Minister refer the case to the Court; or 

·       (b) 

that person does so request and the Court decides that the person has obtained, retained, renounced or resumed citizenship by false representation or fraud or by knowingly concealing material circumstances. 

* * *

·       18. 

(1) Le ministre ne peut procéder à l'établissement du rapport mentionné à l'article 10 sans avoir auparavant avisé l'intéressé de son intention en ce sens et sans que l'une ou l'autre des conditions suivantes ne se soit réalisée : 

·       a) 

l'intéressé n'a pas, dans les trente jours suivant la date d'expédition de l'avis, demandé le renvoi de l'affaire devant la Cour; 

·       b) 

la Cour, saisie de l'affaire, a décidé qu'il y avait eu fraude, fausse déclaration ou dissimulation intentionnelle de faits essentiels. 

13     Therefore, the Court does not revoke citizenship. It only makes a declaration, which can enable the Governor in Council to do so at some subsequent time. It is important to note that the Defendant will be entitled to make submissions to the Governor in Council before his citizenship is revoked, and may also seek judicial review of such a decision.

14     When a party brings a motion for summary judgment, the Court must determine whether there is a genuine issue for trial with respect to a claim or defence. The purpose of summary judgment is to allow the Court to summarily dispense with cases which ought not to proceed to trial because there is no genuine issue to be tried. The test is not whether a party cannot possibly succeed at trial; rather, it is whether the case is so doubtful that it does not deserve consideration by the trier of fact at a future trial. As such, summary judgment is not restricted to the clearest of cases. See: ITV Technologies Inc v. WIC Television Ltd, 2001 FCA 11, at paras 4-6; Premakumaran v. Canada, 2006 FCA 213, at paras 9-11; Canada (MCI) v. Schneeberger, 2003 FC 970, at para 17.

15     The record shows that the Defendant was charged, that he was warned about his duty to disclose charges, that he did not do so and proceeded to take the oath of citizenship. His defence does not dispute any of these facts. The Defendant claims, however, that he was not aware that he must inform Citizenship and Immigration Canada (CIC) that he had been charged while his citizenship application was pending, and that in any event, the police would inform CIC if it impacted his citizenship application.

16     The Defendant's defence amounts to a collateral attack on a final decision of a criminal court of competent jurisdiction in an attempt to re-litigate an issue that has already been tried and is an abuse of process. The facts necessary for this Court to make the order the Plaintiff seeks have already been found on the criminal standard of proof, in the context of the proceedings against the Defendant in the Ontario courts. The Defendant has been convicted of the offence of knowingly concealing material circumstances in obtaining his citizenship. Evidence of a conviction for knowingly concealing material circumstances for the purpose of obtaining citizenship is proof in a reference proceeding, such as the case at bar.

17     The Ontario Court of Justice rejected the argument that Mr. Campbell discharged his obligation by cooperating with the arresting police officers, and his further claim that he had discharged his obligation by telling the police about his dealings with CIC. There is therefore no need to say more about these submissions. As for his (somewhat contradictory) submission that he was not aware of his obligation, it should have been made before the Ontario Court of Justice. The Defendant had the opportunity to challenge the charge of misrepresentation, he could have called witnesses and he could have argued that he did not "knowingly" conceal material circumstances. Yet, it appears from the reasons of the Ontario Court of Justice that "Mr. Campbell did not testify to any misunderstanding as to his obligations while his application for citizenship was pending" (Reasons, p 2; Plaintiff's Motion Record, p 46). This proceeding is not an appeal of the decision of the Ontario Court of Justice; once again, the Defendant cannot launch a collateral attack on a final decision of a provincial criminal court. See: Canada (MCI) v. Copeland, [1998] 2 F.C. 493; Canada (MCI) v. Kawash, 2003 FCT 709, at paras 12-16.

18     The Defendant also complains about an alleged delay in the bringing of revocation proceedings. He submits that the Plaintiff became aware or ought to have become aware in August 2005 that the Defendant may have obtained the Canadian citizenship by failing to disclose his pending charges for cocaine trafficking, but did not issue its Notice in Respect of Revocation of Citizenship until September 2011. The Defendant argues that the Plaintiff's six years delay amounts to an abuse of process that is sufficient to stay the revocation proceedings.

19     Even assuming that the relevant time period for determining delay is the period between when the government became aware of the fraud and the issuance of the statement of claim, as opposed to the period between the notice of revocation being sent to the applicant and the date when the referral proceedings began as decided in a number of cases (Canada (MCI) v. Obodzinsky, 199 F.T.R. 1, at paras 26-35; Canada (MCI) v. Kawash, 2003 FCT 709, at para 16; Canada (MCI) v. Copeland, [1998] 2 F.C. 493), I am unable to find that the delay the Defendant complains of amounts to an abuse of process. In Canada (MCI) v. Parekh, 2010 FC 692, Justice Tremblay-Lamer came to the conclusion that three factors have to be balanced in assessing the reasonableness of an administrative delay: (1) the time taken compared to the inherent time requirements of the matter; (2) the causes of the delay beyond the inherent requirements of the matter; and (3) the impact of the delay.

20     The case at bar was not a complex one and did not require further investigation. Moreover, the Minister offered no explanation for the delay in processing the revocation. These first two factors therefore weigh in favour of the Defendant. However, the Defendant has been unable to show that he was prejudiced by the delay. On the contrary, he has allegedly benefitted from the delay, however it is calculated, as he has lived with his Canadian spouse, has fathered a child and has been gainfully employed. Given the absence of evidence with respect to the impact of the delay on the Defendant, the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would not exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted. I agree with the Minister that it would be perverse that the Defendant be permitted to continue to enjoy that which he fraudulently obtained, merely because he has so far enjoyed the ill-gotten citizenship for several years.

Conclusion

21     For all of the foregoing reasons, the Minister's motion is granted, and a declaration will issue pursuant to subsection 10(1) and paragraph 18(1)(b) of the Citizenship Act that the Defendant obtained Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances. There will be no costs, as the Minister provided no explanation for the delay in commencing this proceeding.

ORDER

THIS COURT ORDERS that the Minister's motion for summary judgment is granted, without costs. The Court declares that Chibanbo Abonie Campbell obtained Canadian citizenship by false representation or fraud by knowingly concealing material circumstances.

de MONTIGNY J.