Budlakoti v. Canada (Minister of Citizenship and Immigration)
Between
Deepan Budlakoti, Applicant, and
Minister of Citizenship and Immigration, Respondent
Deepan Budlakoti, Applicant, and
Minister of Citizenship and Immigration, Respondent
[2014] F.C.J. No. 912
2014 FC 855
Docket: T-1564-13
Federal Court
Ottawa, Ontario
Phelan J.
Heard: June 16, 2014.
Judgment: September 9, 2014.
Docket: T-1564-13
Federal Court
Ottawa, Ontario
Phelan J.
Heard: June 16, 2014.
Judgment: September 9, 2014.
(50 paras.)
JUDGMENT AND REASONS
PHELAN J.:--
I.
Introduction
1 This is an application for a declaration that
Deepan Budlakoti [Applicant] is a Canadian citizen and not subject to the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA]. The Applicant was born in
Canada in 1989 to parents who had come to Canada as employees of the High
Commission of India.
2 There is a significant factual dispute between
the parties as to whether the Applicant's parents left their Indian High
Commission employment before or after his birth. If the parents left this
employment before his birth, then the Applicant was entitled to Canadian
citizenship by virtue of his birth in Canada. Nonetheless, he has an Ontario
birth certificate and has been issued two Canadian passports, presumably on the
strength of the Ontario birth certificate.
3 The critical legislative provisions of the Citizenship
Act, RSC 1985, c C-39, are:
3. (1) Subject to this Act, a person is a citizen if
·
(a) the person was born in Canada after February 14, 1977;
...
·
(2)
Paragraph (1)(a)
does not apply to a person if, at the time of his birth, neither of his parents
was a citizen or lawfully admitted to Canada for permanent residence and either
of his parents was
·
(a) a diplomatic or consular officer or other representative or employee in
Canada of a foreign government;
·
(b) an employee in the service of a person referred to in paragraph (a);
or
·
(c) an officer or employee in Canada of a specialized agency of the United
Nations or an officer or employee in Canada of any other international
organization to whom there are granted, by or under any Act of Parliament,
diplomatic privileges and immunities certified by the Minister of Foreign
Affairs to be equivalent to those granted to a person or persons referred to in
paragraph (a).
...
·
5.
(1) The
Minister shall grant citizenship to any person who
(a) makes application for citizenship;
(b) is eighteen years of age or over;
·
(c) is a permanent resident within the meaning of subsection 2(1) of the Immigration
and Refugee Protection Act, and has, within the four years immediately
preceding the date of his or her application, accumulated at least three years
of residence in Canada calculated in the following manner:
·
(i)
for every day
during which the person was resident in Canada before his lawful admission to
Canada for permanent residence the person shall be deemed to have accumulated
one-half of a day of residence, and
·
(ii)
for every day
during which the person was resident in Canada after his lawful admission to
Canada for permanent residence the person shall be deemed to have accumulated
one day of residence;
·
(d) has an adequate knowledge of one of the official languages of
Canada;
·
(e) has an adequate knowledge of Canada and of the responsibilities and
privileges of citizenship; and
·
(f) is not under a removal order and is not the subject of a declaration by
the Governor in Council made pursuant to section 20.
...
·
12. (1) Subject to any
regulations made under paragraph 27(i), the Minister shall issue a certificate
of citizenship to any citizen who has made application therefor.
·
(2)
When an
application under section 5 or 5.1 or subsection 11(1) is approved, the Minister
shall issue a certificate of citizenship to the applicant.
·
(3)
A certificate
issued pursuant to this section does not take effect until the person to whom
it is issued has complied with the requirements of this Act and the regulations
respecting the oath of citizenship.
* * *
·
3.
(1) Sous
réserve des autres dispositions de la présente loi, a qualité de citoyen toute
personne :
·
a)
née au Canada
après le 14 février 1977;
...
·
(2)
L'alinéa (1)a)
ne s'applique pas à la personne dont, au moment de la naissance, les parents
n'avaient qualité ni de citoyens ni de résidents permanents et dont le père ou
la mère était:
·
a) agent diplomatique ou consulaire, représentant à un autre titre ou au
service au Canada d'un gouvernement étranger;
·
b) au service d'une personne mentionnée à l'alinéa a);
·
c) fonctionnaire ou au service, au Canada, d'une organisation
internationale -- notamment d'une institution spécialisée des Nations Unies --
bénéficiant sous le régime d'une loi fédérale de privilèges et immunités
diplomatiques que le ministre des Affaires étrangères certifie être équivalents
à ceux dont jouissent les personnes visées à l'alinéa a).
...
·
5.
(1) Le
ministre attribue la citoyenneté à toute personne qui, à la fois:
a) en fait la demande;
b) est âgée d'au moins dix-huit ans;
·
c) est un résident permanent au sens du paragraphe 2(1) de la Loi sur
l'immigration et la protection des réfugiés et a, dans les quatre ans qui
ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans
en tout, la durée de sa résidence étant calculée de la manière suivante:
·
(i)
un demi-jour
pour chaque jour de résidence au Canada avant son admission à titre de résident
permanent,
·
(ii)
un jour pour
chaque jour de résidence au Canada après son admission à titre de résident
permanent;
·
d) a une connaissance suffisante de l'une des langues officielles du
Canada;
·
e) a une connaissance suffisante du Canada et des responsabilités et
avantages conférés par la citoyenneté;
·
f) n'est pas sous le coup d'une mesure de renvoi et n'est pas visée par
une déclaration du gouverneur en conseil faite en application de l'article
20.
...
·
12. (1) Sous réserve des
règlements d'application de l'alinéa 27i), le ministre délivre un certificat de
citoyenneté aux citoyens qui en font la demande.
·
(2)
Le ministre
délivre un certificat de citoyenneté aux personnes dont la demande présentée au
titre des articles 5 ou 5.1 ou du paragraphe 11(1) a été approuvée.
·
(3)
Le certificat
délivré en application du présent article ne prend effet qu'en tant que
l'intéressé s'est conformé aux dispositions de la présente loi et aux
règlements régissant la prestation du serment de citoyenneté.
·
(Court underlining)
II.
Background
·
A.
Immigration
Matters
4 In overview, the Applicant was sentenced to
three (3) years in prison for weapons trafficking and cocaine importation in
2010. While in prison, Citizenship and Immigration Canada [CIC] determined that
despite his Canadian passport, the Applicant has never been a Canadian citizen.
An admissibility report was prepared and the Applicant was declared
inadmissible on the basis of serious criminality pursuant to s 4 of the IRPA.
5 India has denied that the Applicant is a citizen
of India or entitled to citizenship but the record on this issue is sketchy at
best.
6 The Applicant was released from prison into
immigration detention, which he was released from in April 2013 subject to
conditions. The subsiding paragraphs detail the particulars of the Applicant's
relevant immigration matters.
7 In 2009, the Applicant was convicted of breaking
and entering and sentenced to four (4) months in jail. In 2010, the Applicant
was reported inadmissible for serious criminality based on this 2009
conviction. Proceedings seemed to grind to a halt when, despite CIC contending
that the Applicant was not a citizen, he gave CBSA a copy of his passport.
8 On December 12, 2010, the Applicant was
convicted of weapons trafficking, possession of a firearm while prohibited and
of trafficking in narcotics (cocaine). He was sentenced to three (3) years in
jail.
9 In May 2011, CIC provided the Applicant with an
inadmissibility report, pursuant to the IRPA s 44, confirming inadmissibility
due to criminality. A removal order was issued in respect of the 2009
conviction.
10 Following an admissibility hearing in October
2011, the Immigration and Refugee Board [IRB] determined on December 8, 2011
that the Applicant was inadmissible due to criminality. The IRB decision
focussed on the question of whether the Applicant was a Canadian citizen.
11 In the IRB proceedings, the mother claimed that
while pregnant with the Applicant, she had stopped working for the High
Commission. The father testified that he had left his job in June 1989, applied
for a Canadian work visa in Boston and moved into his new employer's home.
Additionally, their new employer (Dr. Dehejia) testified that he travelled to
Boston with the Applicant's father in the summer of 1989 to regularize the
father's status.
12 The IRB member was not satisfied that the
Applicant was a Canadian citizen and issued a deportation order against him
[December 8, 2011 IRB decision].
13 Importantly, on May 24, 2012, Justice Barnes
dismissed an application for judicial review of the December 8, 2011 IRB
decision.
14 In 2012, the Applicant received a negative PRRA
decision.
15 In December 2012, the Applicant completed his
sentence and was released into CBSA custody. He has been released from custody
on bonds and conditions which were amended on November 1, 2013 [November 1,
2013 IRB order].
·
The Applicant has brought a motion for
interlocutory injunction prohibiting the legal enforcement of all immigration
conditions imposed under the November 1, 2013 IRB order.
16 On September 24, 2013, the Applicant filed this
Notice of Application seeking a declaration of citizenship -- the present
matter before this Court.
·
B.
Citizenship
Declaration Matters
17 The Applicant's problems begin with the status
of his parents' employment at the time of his birth in October 1989. The
parents came to Canada in 1985 to work as domestic helpers to the Indian High
Commissioner to Canada. That employment terminated at some point in 1989 -- the
exact date is hotly contested and the facts in this record are difficult to
make out.
18 The parents entered Canada in 1985, as
accredited domestic workers of India's High Commission; a diplomatic note to
that effect was delivered to DFAIT on September 30, 1985.
19 On August 26, 1988, another diplomatic note
indicated that the parents had moved into the Indian High Commissioner's
official residence to continue their domestic work.
20 The Applicant contends that his parents quit the
Indian High Commission in June 1989. In that regard, he relies on the same
basic facts as were before the IRB.
21 The Applicant relies on the affidavit of Dr.
Dehejia. In his affidavit, Dr. Dehejia admitted that he did not recall specific
dates as to when the parents began working for him.
22 The Applicant also relies on the affidavit of
S.J.S. Chhatwal, a former Indian High Commissioner, whose evidence was that the
parents left his employment in June 1989 but cannot otherwise remember anything
from that period. The integrity of this affidavit is undermined because the 3rd
page of the four-page affidavit is missing.
23 This viva voce/affidavit evidence is
further undermined by several pieces of contemporary documentation:
·
*
on December
6, 1989, the Applicant's father received an employment authorization allowing
him to begin work for a new employer instead of the Indian High
Commissioner;
·
*
the
corresponding FOSS Note states: "Head of family and wife were both
employed by the Indian High Commission until Dec/89". The Note contains a
reference to the son (this Applicant) not being a Canadian citizen;
·
*
the
Applicant's father travelled, on his Indian diplomatic passport, on December
13, 1989;
·
*
a diplomatic
note from the Indian High Commission dated December 21, 1989 reported that the
father and mother left the service of the High Commissioner of India on
December 12 and 20, 1989 respectively (Mr. Chhatwal claimed that the note is in
error but this has not been confirmed by an official of the Indian government);
and
·
*
on January 2,
1990, Canada revoked the parents' diplomatic status.
24 To round out the facts, the parents filed for
and ultimately obtained Canadian citizenship. In both their citizenship
applications, the parents claimed their address as that of Dr. Dehejia, from
October 1989 to August 1993, despite claiming elsewhere that they had started
working for him in June 1989. Importantly, before filing for citizenship, the
parents, in June 1992, applied for permanent resident status listing the
Applicant as a dependent child. A visa and record of landing was issued for the
Applicant.
25 The Applicant, having been born in Ottawa on
October 17, 1989, holds an Ontario birth certificate, and had been issued a
first and then a second Canadian passport.
26 The case turns on whether the Applicant's
parents were on October 17, 1989, employees in the service of a diplomatic
officer in accordance with s 3(2)(b) of the Citizenship Act, RSC
1985, c C-29.
27 The issues in this matter are:
·
*
Is the
Applicant a Canadian citizen?
·
*
Has the
Applicant been made stateless by some action of the Respondent?
·
*
Are the
Applicant's rights being violated under the current arrangement?
·
*
Should a
declaration of citizenship be issued at this time?
The first and
last issues are interrelated.
III. Analysis
28 There are three principal reasons for not
granting the core relief sought -- a declaration of Canadian citizenship.
29 Firstly, I have grave doubts that this Court can
and should issue a bare declaration of citizenship unrelated to some other
relief or proceedings. The legislative scheme leaves to the Minister or
potentially a citizenship judge the task of providing the documentation of
citizenship. A refusal to provide such documentation, such as a certificate of
citizenship, would then be reviewable by this Court.
30 Under the current procedure, this Court is asked
to declare a person a citizen; however, there is no legislation suggesting that
it is the function of this Court to make such a bald declaration. One may ask
rhetorically, whether such relief is open to any person desiring citizenship.
31 Secondly, this matter was already subject to a
Court decision, raising the matter of issue estoppel. The December 8, 2011 IRB
decision held that the IRB was not satisfied that the Applicant was a Canadian
citizen. That decision was upheld by Justice Barnes on May 24, 2012.
32 This declaration proceeding is a collateral
attack on the December 8, 2011 IRB decision and an "end run" on
Justice Barnes' decision on judicial review. The issue of citizenship was
central to those decisions; the facts pleaded were the same and the evidence
tendered was much the same as in this declaration proceeding.
33 In my view, the issue of citizenship has been
dealt with and this Court ought not to revisit the matter under a subsequent
but parallel proceeding.
34 Thirdly, the evidence in this case does not
justify the relief sought. It might have been preferable if this case had been
converted to an action (where credibility can be better tested) but the Court
must deal with the evidence as presented. The record does not establish the
Applicant's claim to citizenship by reason of birth in Canada.
35 The Applicant's case is significantly undermined
by the documentary evidence and the internal inconsistency in its own records
including:
·
*
the
Applicant's father did not receive an employment authorization permitting work
outside the High Commission until December 13, 1989;
·
*
The FOSS
Notes confirming that the father worked at the Indian High Commission until
December 1989 and the Applicant's status as a non-Canadian citizen;
·
*
the Indian
High Commission diplomatic note confirming that the parents ceased to work
there after December 12 and 20, 1989 respectively;
·
*
the father's
travels under a diplomatic passport up to December 13, 1989;
·
*
the parents'
permanent resident application of 1992, which included the Applicant as part of
the request -- a matter inconsistent with a claim of Canadian citizenship;
and
·
*
the
inconsistency between the parents' claim that they had left the High Commission
employment in June 1989 and began work for a new employer, and the citizenship
application that they lived at the new employer's house in October 1989. At the
very least, the inconsistency undermines the main story-line.
36 The affidavit evidence suffers from being based
on the recollection of events 25 years ago; specifically, by the refusals to
answer specifics from that period.
37 The Court prefers the documentary evidence to
that of the recollections of Mr. Chhatwal and Dr. Dehejia because the
documentary evidence was made at the relevant time and is more consistent with
other related evidence.
38 The Court has credibility concerns about the
evidence relied on by the Applicant, both because of the inconsistencies and
contradictions caused by the 25 year time lapse therein and the witnesses'
responses when challenged.
39 The fact that passports were issued to the
Applicant is not, in this case, determinative of citizenship. I adopt the
reasoning of Justice Strickland in Pavicevic v Canada (Attorney General),
2013 FC 997, 20 Imm LR (4th) 37, holding that issue estoppel does not arise in
the case of a passport issued in error.
40 On the issue of whether the Respondent has taken
any action to render the Applicant stateless, the Respondent has done nothing
to deprive the Applicant of his Canadian citizenship. The Applicant's position
is based on the erroneous assumption that the Applicant initially had Canadian
citizenship.
41 Whether the Applicant has Indian citizenship or
is entitled to Indian citizenship is not a matter which this Court can decide.
At the very minimum there is no expert evidence on Indian law and the
Applicant's entitlements to Indian citizenship.
·
The law relied on by the Applicant
relates to revocation of citizenship and is not applicable or persuasive in
these circumstances.
42 On the issue of violation of the Applicant's
rights, the Applicant claims violations of sections 6 and 7 of the Charter.
43 With respect to s 6 rights, the Applicant's
position is dependent on his being a Canadian citizen. In Solis v Canada
(Minister of Citizenship and Immigration) (2000), 186 DLR (4th) 512 (FCA),
96 ACWS (3d) 455, Justice Rothstein, then on the Court of Appeal, confirmed
that for s 6 Charter rights to be engaged, the person must be a citizen.
44 Having concluded that the Applicant has not
established his Canadian citizenship, there can be no violation of s 6 Charter
rights.
45 With respect to s 7 Charter rights, the
Applicant is entitled to rely on the protection of this provision. The Applicant
argues that absent citizenship, he faces the threat of removal from the country
of his birth and has been rendered stateless, in violation of his right to
liberty and to security of the person including access to basic Canadian social
services such as health care.
46 The Applicant, while entitled to s 7 Charter
protection, has failed to establish a violation of the rights accorded by the
provision.
·
As Justice Mandamin held in Lee v
Canada (Minister of Citizenship and Immigration), 2008 FC 614, 167 A.C.W.S.
(3d) 859, the denial of citizenship is not synonymous with deportation (where s
7 Charter rights would crystallize).
47 Further, the denial of state funded health care
does not violate s 7 of the Charter, as held in Chaoulli v Quebec
(Attorney General), 2005 SCC 35, at paragraph 104:
·
104 The Charter does not confer
a freestanding constitutional right to health care. However, where the
government puts in place a scheme to provide health care, that scheme must
comply with the Charter. We are of the view that the prohibition on
medical insurance in s. 15 of the Health Insurance Act, R.S.Q., c. A-29,
and s. 11 of the Hospital Insurance Act, R.S.Q., c. A-28 (see Appendix),
violates s. 7 of the Charter because it impinges on the right to life,
liberty and security of the person in an arbitrary fashion that fails to
conform to the principles of fundamental justice.
48 While an Oakes test analysis is not
required here, in considering the objectives of the Citizenship Act, I
can do no better than to quote Justice Shore in Al-Ghamdi v Canada (Foreign
Affairs and International Trade), 2007 FC 559, 314 FTR 1:
·
[74] The objective of paragraphs 3(2)(a)
and (c) of the Citizenship Act is to ensure that citizenship is
not accorded to someone who is immune from almost every obligation of
citizenship (e.g. paying taxes and respecting criminal law). This is manifestly
an important objective.
·
Rational connection
between the measure and the objective
·
[75] In an effort to ensure that no
citizen is immune from the obligations of citizenship, denying citizenship is
tightly connected to the objective.
·
[76] The only other alternative would
be not to grant immunity to the children of individuals with diplomatic status.
This would violate long standing tradition in international law and interfere
with the exercise of the Crown's prerogative over international affairs.
·
[77] It is not necessary that the
government demonstrate that the means chosen is the least impairing imaginable.
It is only necessary that "the law falls within a range of reasonable
alternatives". Where this is the case "the courts will not find it
overbroad merely because they can conceive of an alternative which might better
tailor objective to infringement." (Harper v. Canada (Attorney General),
[2004] 1 S.C.R. 827.)
·
Proportionality in
respect of the restriction and the objective
·
[78] In measuring the proportionality
of the restriction and the objective, it is important to recognize paragraphs
3(2)(a) and (c) only have the effect of denying Canadian
citizenship. Although Canada cannot control sovereign foreign states and be
certain that children born of every foreign diplomat will be entitled to
citizenship in their home country, it is nonetheless, reasonable to assume that
most would be and therefore paragraphs 3(2)(a) and (c) treat
these children no differently than every other citizen born in their parents'
home country.
·
[79] As any other foreign national, the
Applicant can apply for permanent residence pursuant to the IRPA, and once the
residency obligations as set out in section 5 of the Citizenship Act are
met, request to become a citizen.
·
[80] In addition, because the
conditions as set out in paragraphs 3(2)(a) and (c) reflect the
standards of international law, it meets the requirements of being demonstrably
justified in a free and democratic society.
49 Therefore, even if there was a violation of s 7
of the Charter, the challenge would not survive an Oakes test
analysis.
IV.
Conclusion
50 For all these reasons, I would dismiss this
application for a declaration with costs.
JUDGMENT
THIS COURT'S JUDGMENT is that the
application for a declaration is dismissed with costs.
PHELAN J.
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