Friday, November 21, 2014

SERGIO R. KARAS QUOTED IN TODAY'S NATIONAL POST CITIZENSHIP STORY

I was quoted in today's National Post story on a very strange case concerning the erroneous grant of citizenship to a person who failed the test twice.

http://news.nationalpost.com/2014/11/20/comedy-of-errors-let-woman-become-canadian-citizen-despite-abysmal-results-on-citizenship-tests/

November 20, 2014

'Comedy of errors' lets woman become Canadian citizen despite abysmal results on citizenship tests

By Adrian Humphreys 

The judge noted in writing that Ms. Afzal failed the tests and did not qualify but mistakenly checked the 'Granted' box on the decision form, court...

TORONTO - A would-be Canadian who received a grade of zero out of six on her citizenship language test and four out of 20 on the test's knowledge component was nonetheless granted a Canadian citizenship certificate.
A "series of administrative errors" put Haheen Afzal - despite her abysmal results on the tests - before a citizenship judge in Hamilton, Ont., swearing an oath to the Queen and being issued a citizenship certificate.
When the mistake was discovered, Ms. Afzal did not want to surrender her citizenship and fought to keep it.
The errant ceremony took place on Sept. 26, 2013, but the legal dispute - leading to its cancellation - was only recently resolved in the Federal Court of Canada.
Ms. Afzal failed the citizenship test twice before being awarded a citizenship certificate: the first time she scored 2/6 on language and 8/20 on knowledge. When she appeared before a citizenship judge and tried again, she scored even worse.
The citizenship judge noted in writing that Ms. Afzal failed the tests and did not qualify but mistakenly checked the "Granted" box on the decision form, court heard.
The next day, an official at the Citizenship and Immigration Canada (CIC) office acknowledged that the judge's decision had been "seen" and checked "Citizenship Granted" before sending the form along for processing.
A few days later, Ms. Afzal was asked to appear for a citizenship ceremony and she took the Oath of Citizenship.
After the ceremony a citizenship clerk finally noticed the mistake. He twice phoned Ms. Afzal and left messages.
The calls were not returned.
Two months later, CIC cancelled the certificate.
In court, her lawyer argued CIC bureaucrats did not have authority to cancel citizenship, only the Governor-in-Council, which acts on behalf of the Crown, has such power.
'It is unclear how often these mistakes happen. This situation merits a thorough investigation'
To accept that, Federal Court Justice Donald Rennie said in his ruling, would rise to the level of "absurdity."
Before someone can become a Canadian citizen, they are required to demonstrate linguistic competence in either of Canada's official languages and show an adequate knowledge of Canada's social, civic and political norms.
"These competencies must be established before citizenship can be granted," Judge Rennie ruled.
Based on those criteria, even though a citizenship certificate was issued, the pre-conditions to citizenship had never been met, he said. Therefore, citizenship was not so much being revoked as a certificate that had not been legally issued was being cancelled. And that was within the power of CIC bureaucrats.
"This interpretation also ensures that the privilege of Canadian citizenship is granted only as intended by Parliament," said Judge Rennie.
Neither Ms. Afzal nor her lawyer could be reached for comment Wednesday.
The case reveals troubling problems with CIC officials, said Sergio Karas, an immigration lawyer and analyst who is a former chair of the Ontario Bar Association's immigration section.
"One would expect that citizenship applicants would be vetted extensively for compliance with residency, security and knowledge testing," Mr. Karas said.
"It is amazing that such a vetting process appears to have been a comedy of errors in this case.
"One is left to wonder about the level of competence and care that some Citizenship and Immigration Canada employees may be demonstrating. ... It is unclear how often these mistakes happen. This situation merits a thorough investigation of internal policies and practices."
Sonia Lesage, a spokeswoman for CIC, defended the department. "These safeguards worked in this instance as we found the error and fixed it. The certificate was cancelled in November 2013 and the Federal Court upheld our process."
National Post

Tuesday, November 11, 2014

CITIZENSHIP DECISION LACKED CLARITY, GRANT OVERTURNED

The question of citizenship decisions and how they are reached by Citizenship judges refuses to go away. In the case below, the government appealed a decision granting citizenship to someone who may not have been in Canada for the required minimum period of time, but the Citizenship judge relied on his apparent establishment without providing adequate reasons. This situation will continue unsettled, much to the chagrin of the Federal Court, until the new Citizenship Act sections dealing with physical presence are enforced. It is unclear why they have not come into force already.


Canada (Minister of Citizenship and Immigration) v. Ahmad

Between
The Minister of Citizenship and Immigration, Applicant, and
Yousef Mustafa Bani Ahmad, Respondent
[2014] F.C.J. No. 1095
2014 FC 898

Docket: T-2019-13

 Federal Court
Toronto, Ontario

LeBlanc J.


Heard: August 25, 2014.
Judgment: September 18, 2014.
(36 paras.)



JUDGMENT AND REASONS
1     LeBLANC J.:-- This case is an appeal by the Minister of Citizenship and Immigration (the Minister) under subsection 14(5) of the Citizenship Act, RSC, 1985, c C-29 (the Act) and section 21 of the Federal Courts Act, RSC 1985, c C-7, of a decision of a Citizenship judge approving the respondent's application for Canadian citizenship.
I. Background
2     Mr. Bani-Ahmad is a national of Jordan. He arrived in Canada in 1999 and became a permanent resident in October, 2006, following a positive inland application for Humanitarian and Compassionate grounds under the Immigration and Refugee Protection Act (SC 2001, c 27).
3     On July 11, 2009, he submitted an application for Canadian citizenship. Therefore, the relevant four year period for the purposes of the residency requirement Mr. Bani-Ahmad had to meet as a condition for being granted Canadian citizenship was July 11, 2005 to July 11, 2009.
4     In the citizenship application and subsequent Citizenship Questionnaire he was asked to complete, Mr. Bani-Ahmad declared three absences from Canada during that four year period. In the course of processing of his citizenship application, Mr. Bani-Ahmad was asked to provide documents to demonstrate that he met the residency requirement but he failed to do so.
5     His citizenship application was eventually referred to a Citizenship judge for a hearing that was held on September 30, 2013. After reviewing the record before him, the Citizenship judge requested translation of a foreign language stamp in Mr. Bani-Ahmad's passport and reserved his final decision for the outcome of the translation.
6     On October 15, 2013, the Citizenship judge approved Mr. Bani-Ahmad's application. In a rather short decision, the Citizenship judge listed factors which appear to have been considered in reaching his decision. The Citizenship judge first stated that Mr. Bani-Ahmad had less than 1095 days of physical presence in Canada as required by paragraph 5(1)(c) of the Act "because he applied too soon for Citizenship". He then indicated that Mr. Bani-Ahmad was in Canada since 1999, that his passport corroborated his testimony, that three of his children were born in Canada, that he owned a restaurant and a house in Toronto, that the restaurant was the only source of income for he and his family and that some members of his family (brothers, sister and mother) were in Canada.
7     Under the heading "Decision", the Citizenship judge wrote the following:

·        Considering all of the above, and based on my careful assessment of the applicant's testimony, as well as my consideration of the information and evidence before me, I am satisfied that the applicant was actually living and was physically present in Canada on the number of days sufficient to comply with the Citizenship Act. 
8     The Minister claims that this decision must be quashed for two reasons. First, the Minister contends that the Citizenship judge failed to identify which of the three residency tests was used, resulting in his decision not meeting the test of clarity, precision and intelligibility established in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190. Second, the Minister submits, in the alternative, that the impugned decision is unreasonable as the Citizenship judge reached conclusions about Mr. Bani-Ahmad's ties to Canada that are not supported by the evidence.
II. Issue and Standard of Review
9     The sole issue to be resolved in this case is whether the impugned decision warrants intervention by this Court. In order to answer that question I have applied the standard of reasonableness which is the standard of review applicable in citizenship appeals dealing with the residency requirement.
10     It is indeed generally accepted in this Court's jurisprudence "that a citizenship judge's application of evidence to a specific test for residency under paragraph 5(1)(c) of the Act raises questions of mixed fact and law and is thus reviewable on a standard of reasonableness": Saad v Canada (Minister of Citizenship and Immigration), 2013 FC 570, 433 FTR 174, at para 18, and see also Canada (Minister of Citizenship and Immigration) v Rahman, 2013 FC 1274 at para 13; Balta v Canada (Minister of Citizenship and Immigration), 2011 FC 1509, 403 FTR 134 at para 5; Canada (Minister of Citizenship and Immigration) v Baron, 2011 FC 480, 388 FTR 261 at para 9; Canada (Minister of Citizenship and Immigration) v Diallo, 2012 FC 1537, 424 FTR 156 at para 13; Huang v Canada (Minister of Citizenship and Immigration) 2013 FC 576 at paras 24 to 26).
11     There is no dispute between the parties that the standard of review applicable to the present appeal is the standard of reasonableness.
III. Analysis

·        A. 
The Legal Principles Applicable to the Citizenship Residency Requirement
12     Paragraph 5(1)(c) of the Act provides for the residency requirements citizenship applicants need to meet in order to be successful with their application. It reads as follows:

·        Citizenship Act, RSC 1985, c C-29 

·        Grant of citizenship

·        5. 
(1) The Minister shall grant citizenship to any person who 

·        [...] 

·        (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; 
* * *

·        Loi sur la citoyenneté (LRC (1985), ch C-29) 

·        Attribution de la citoyenneté

·        5. 
(1) Le ministre attribue la citoyenneté à toute personne qui, à la fois: 

·        [...] 

·        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; 
13     There is an ongoing debate within this Court as to what paragraph 5(1)(c) of the Act means exactly. Competing views have emerged from that debate with the result that three different tests are available to Citizenship judges in assessing the residency requirement in any given case (Sinanan v Canada (Minister of Citizenship and Immigration) 2011 FC 1347 at paras 6 to 8; Huang v Canada (Minister of Citizenship and Immigration), 2013 FC 576, [2013] F.C.J. No. 629 (QL), at paras 17 and 18).
14     The first test involves the strict counting of days of physical presence in Canada which must total 1095 days in the four years preceding the application. It is often referred to as the quantitative test or the Pourghasemi test (Pourghasemi (Re) (FCTD) [1993] 62 FTR 122, [1993] F.C.J. No. 232 (QL)).
15     The second test is less stringent. It recognizes that a person can be resident in Canada, even while temporarily absent, if there remains a strong attachment to Canada. This test is generally known as the Re Papadogiorgakis test (Re Papadogiorgakis, [1978] 2 FC 208, [1978] F.C.J. No. 31 (QL)).
16     The third test builds on the second one by defining residence as the place where one has centralized his or her mode of living. It is described in the jurisprudence as the Koo test (Re Koo, 59 FTR 27, [1992] F.C.J. No. 1107 (QL); see also Paez v Canada (Minister of Citizenship and Immigration) 2008 FC 204 at para 13, Sinanan, above at paras 6 to 8; Huang, above at paras 37 to 40).
17     The last two tests are often referred to as qualitative tests (Huang, above at para 17).
18     The dominant view in the case law is that Citizenship judges are entitled to choose which test they desire to use among these three tests and that they cannot be faulted for choosing one over the other (Pourzand v Canada (Minister of Citizenship and Immigration) 2008 FC 395 at para 16; Xu v Canada (Minister of Citizenship and Immigration) 2005 FC 700 at paras 15 and 16; Rizvi v Canada (Minister of Citizenship and Immigration) 2005 FC 1641 at para 12).
19     However, they can be faulted if they fail to articulate which residency test was applied in a given case (Dina v Canada (Minister of Citizenship and Immigration) 2013 FC 712, 435 FTR 184, at para 8).
20     This is, in my view, what happened in this case. For the reasons that follow, this is fatal to the Citizenship judge's decision.

·        B. 
The Citizenship Judge's Failure to Articulate Expressly or Impliedly the Residency Test
21     It is undisputed that the Citizenship judge did not expressly state or articulate which of the three residency tests was used in his assessment of Mr. Bani-Ahmad's citizenship application.
22     Mr. Bani-Ahmad asserts that since the Supreme Court of Canada's judgment in Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708, deference is owed to administrative decision makers, even if the reasons given in support of findings are not entirely adequate. As a result, he says the Citizenship judge was under no obligation to expressly identify the test applied.
23     Mr. Bani-Ahmad further submits that it appears clear from the impugned decision, when read as a whole, that the test applied was the one set out in Koo, above, and that, as a result, the decision possesses the qualities of clarity, transparency and intelligibility required by the case law.
24     It is true that administrative decision makers are owed deference even where the reasons supporting a finding are not entirely adequate. However, Newfoundland Nurses, above, still requires reasons for decisions to be intelligible enough to allow the reviewing court to understand why and how the decision maker reached his or her conclusion and to permit it to determine whether the conclusion reached by the decision-maker falls within the range of possible outcomes (Newfoundland Nurses, at para 16).
25     As I have indicated previously, the case law, as it stands now, allows Citizenship judges to choose which of the three residency tests they will apply in any given case. In such singular circumstances, which are less than optimal from the standpoint of ensuring consistency and certainty of the law, the least that can be expected from Citizenship judges is that they articulate as clearly as possible, in each and every case, which test was chosen to assess the Act's residency requirement. In this context, this requirement, in my view, is vital in order to allow this Court to understand why a Citizenship judge made his or her finding on the residency requirement.
26     As the Minister points out in his written submissions, the dominant view within this Court is that in order to be clear, precise and intelligible, reasons for decisions in the citizenship context must, at the very least, indicate which residency test was used and why that test was met or not (Canada v Jeizan 2010 FC 323, 386 FTR 1, at para 17-18; Dina v Canada (Minister of Citizenship and Immigration) 2013 FC 712, 435 FTR 184 at para 8; Canada (Minister of Citizenship and Immigration) v Al-Showaiter, 2012 FC 12, at para 21, Canada (Minister of Citizenship and Immigration) v Baron, 2011 FC 480, 388 FTR 261, at para 13-18, Canada (Minister of Citizenship and Immigration) v Saad, 2011 FC 1508, 404 FTR 9, at paras 18-24).
27     This view has prevailed in the post-Newfoundland Nurses jurisprudence of this Court (Canada (Minister of Citizenship and Immigration) v Abdallah, 2012 FC 985, 417 FTR 13 and Canada (Minister of Citizenship and Immigration) v Raphaël, 2012 FC 1039, 417 FTR 177).
28     Here, the Citizenship judge did not refer to any of the three tests in his reasons for decision. It is not possible either to infer from his reasons which test he may have applied. In fact, the Citizenship judge made a number of findings that are impossible to comprehensively and reasonably associate with one of the three tests. These findings read as it follows:

·        * 
The applicant as less day of physical presence in Canada (1088) only because he applied too soon for Citizenship after being landed. However, he is in Canada since 1999. 

·        * 
A throughout examination of the relevant passport confirms what stated by the applicant about his physical presence but I asked for a professional translation because there is one foreign language stamp. (I personally photocopied all and only the stamped pages of the relevant passport -- see attached) 

·        * 
The applicant is married with four children (three of them born in Canada). 

·        * 
The applicant is the owner of a restaurant in downtown Toronto. 

·        * 
He is married and they own the house where they live. 

·        * 
He has the profit from the restaurant as the only source of income for the family. 

·        * 
His five brothers, the sister and his mother are all established in Canada. 
29     It follows that it is not possible to determine with any degree of precision the residency test in relation to which these findings were applied. In particular, when it comes to the findings related to Mr. Bani-Ahmad's ties to Canada, it is not possible to discern in relation to which of the two qualitative tests, that is the Papadogiorgakis test or the Koo test, these findings would have been made.
30     Furthermore, the reasons for decision are irreconcilable with each other. On the one hand, the Citizenship judge noted that Mr. Bani-Ahmad was short of the 1095 days of physical presence required by paragraph 5(1)(c) of the Act. On the other hand, he approved Mr. Bani-Ahmad's citizenship application on the basis that he was satisfied that Mr. Bani-Ahmad "was actually living and was physically present in Canada on the number of days sufficient to comply with the Citizenship Act".
31     As the Minister points out, these statements, when read in isolation, might indicate that the Citizenship judge applied the physical presence test. However, the Citizenship judge could not possibly have applied that test given that Mr. Bani-Ahmad had not accumulated the threshold number of days of physical presence in Canada. If he did, then his decision falls squarely outside the range of possible outcomes, as required by Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190.
32     In sum, since it is impossible to identify which test was used, it is impossible for this Court to understand why and how the Citizenship judge reached his conclusion and to determine whether that conclusion falls within the range of possible outcomes.
33     This is a clear case of a decision lacking in clarity, transparency and intelligibility. For that reason alone, the impugned decision is unreasonable and must be set aside. It is therefore not necessary to examine the other ground of appeal raised by the Minister.
34     The Minister is seeking that the appeal be granted and that Mr. Bani-Ahmad's citizenship application be re-determined by a different Citizenship judge. This would presumably avoid Mr. Bani Ahmad to have to re-apply for Canadian citizenship, at least for the time being.
35     The appeal will be granted accordingly.
36     The Minister is not claiming his costs.
JUDGMENT

·        THIS COURT'S JUDGMENT is that

·        1. 
The appeal is granted; 

·        2. 
The Respondent' citizenship application is remitted for re-determination by a different Citizenship judge; and 

·        3. 
The whole without costs. 

LeBLANC J.

STUDY PERMIT WITH WORK COMPONENT SUBJECT OF FEDERAL COURT RULING

A Study Permit is usually granted for full time studies, but many courses have a practical work component. The regulations require that the work component should not exceed more than half the total hours in the course, with some exceptions. The question is whether the study component is so minimal to make the course a work program in disguise.  In the urinal case below, the Federal Court held that the course exemption for the student was not as significant to prohibit granting the Study Permit.

Po v. Canada (Minister of Citizenship and Immigration)

Between
Michelle Wong Ka Po, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2014] F.C.J. No. 1093
2014 FC 1012

Docket: IMM-2712-14

 Federal Court
Vancouver, British Columbia

Tremblay-Lamer J.


Heard: October 22, 2014.
Judgment: October 23, 2014.
(11 paras.)


JUDGMENT AND REASONS
1     TREMBLAY-LAMER J.:-- The applicant seeks judicial review of the refusal by the respondent Minister of Citizenship and Immigration to restore her study permit and co-op work permit.
2     The applicant, a citizen of Malaysia, was studying business at Sprott Shaw College under a student visa. Her programme included 980 hours of coursework and 980 hours of employment through a co-op arrangement for which she held a work permit.
3     Her student visa expired during the programme. She made a timely application for its restoration. The Minister denied the application, giving only the following explanation from the examining officer:

·       I'm not satisfied that you meet the requirements as a genuine student as per R183(1) and co-op work permit as per R205(c). 
4     The officer's notes show that the application was denied because the work component exceeded 50% of the programme, in violation of the Minister's policy. Originally the work component was exactly 50%, but the student received an exemption from five courses. By the officer's calculation, the academic component, excluding the exempted courses, totalled 802 or 826 hours, and the work component remained at 980 hours. Since work represented 54-55% of the programme, she found the applicant to be ineligible.
5     The sole issue is whether the officer breached the applicant's right to procedural fairness by not offering the opportunity to address the officer's concerns.
6     The Immigration and Refugee Protection Regulations, SOR/2002-227, subparagraph 205(c)(i), allow for issuing a work permit "to a foreign national who intends to perform work that ... is designated by the Minister as being work that can be performed by a foreign national on the basis of [being] work that is related to a research, educational or training program".
7     Citizenship and Immigration Canada's Foreign Worker Manual FW 1 (29 January 2013) stipulates in s 5.37:

·       The following academic or training programs and research activities are designated as work which can be performed by a foreign national based on the criteria listed in R205(c)(i), C30: 

·       1. 
foreign students, (excluding those coming to work in medical residency or medical fellowship positions with the exception of those in the field of veterinary medicine), whose intended employment forms an essential and integral part of their course of study in Canada and this employment has been certified as such by a responsible academic official of the training institution and where the employment practicum does not form more than 50% of the total program of study. 
8     On its face, the officer's calculation suggests that employment represents more than the authorized 50% of the applicant's time in the programme. However, the officer does not explain her conclusion that, solely because the applicant was exempted from five courses, "the program ha[d] been changed to a program with a Theoretical component of 802 hours and a co-op work component of 980 hours." Academic institutions routinely offer exemptions for manifest mastery of the material. The exemptions do not change the programme itself; they merely waive coursework when the student has already fulfilled the requirement.
9     For example, a programme that required 168 hours of courses in basic French could reasonably exempt a francophone student from that requirement. He might then find himself with only 802 hours of coursework and a 980-hour co-op. Likewise, the applicant in the present situation might have won a sensible exemption from five courses by demonstrating mastery of the subject matter ("Computerized Accounting Principles", "Database Applications", "Critical Skills in Communication", "Business Writing", and "Powerful Presentations") through prior training, experience, or examination. If so, the visa should not have been denied solely because of the exemption.
10     I recognize that a raft of exemptions could suggest abuse, particularly if they minimized the academic component. The Minister enjoys discretion to deny visas for programmes that are nothing more than ruses to facilitate employment in Canada under the pretence of study. In the case at bar, however, an exemption reducing the academic component from 50% to 45% or 46% of the total does not stand out as a manifest abuse of the work-study scheme. The conclusion that the exemption changed the very nature of the programme requires a stronger basis in fact than the officer provided. In such a case, she should have sought an explanation of the exemption before drawing that conclusion. The officer's failure to give the applicant an opportunity to respond to her concerns, on the facts of this case, amounted to a breach of natural justice.
11     For these reasons, the application for judicial review is allowed and the matter is referred to a different visa officer for redetermination.
JUDGMENT
THIS COURT'S JUDGMENT is that this application for judicial review is allowed and the matter is referred to a different visa officer for redetermination.
TREMBLAY-LAMER J

Saturday, November 8, 2014

CITIZENSHIP GRANTED IN ERROR CAN BE REVOKED

In the unusual case below, there were a series of administrative errors by Citizenship officials. The Federal Court held that the legislation contemplated this case and that to hold otherwise would lead to an "absurdity" where a person who was not legally entitled to citizenship would enjoy that valuable privilege.  Note that the court indicates that the applicant "did not return phone calls" when officers discovered the error and wanted to correct it. Of  course...

The better question, however, is what kind of incompetence prevails at Citizenship and Immigration, a department that does not distinguish itself for efficiency and thoroughness?

Afzal v. Canada (Minister of Citizenship and Immigration)

Between
Shaheen Afzal, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2014] F.C.J. No. 1084
2014 FC 1028

Docket: T-2042-13

 Federal Court
Toronto, Ontario

Rennie J.


Heard: August 13, 2014.
Judgment: October 29, 2014.
(35 paras.)


JUDGMENT AND REASONS
1     RENNIE J.:-- On September 26, 2013, the applicant attended before a citizenship judge in Hamilton, Ontario, swore the oath of allegiance to Her Majesty Queen Elizabeth II and committed to faithfully observe the laws of Canada. She was issued a certificate of citizenship and left at the conclusion of the ceremony a Canadian citizen. Or did she?
2     Previously, the applicant had failed both of the mandatory pre-conditions to citizenship established by section 5(1)(d) and (e) of the Citizenship Act (RSC, 1985, c C-29) (the Act):

·       Grant of citizenship

·       5. 
(1) The Minister shall grant citizenship to any person who 
[...]

·       (d) 
has an adequate knowledge of one of the official languages of Canada; 

·       (e) 
has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship; 
* * *

·       Attribution de la citoyenneté

·       5. 
(1) Le ministre attribue la citoyenneté à toute personne qui, à la fois : 
[...]

·       d) 
a une connaissance suffisante de l'une des langues officielles du Canada; 

·       e) 
a une connaissance suffisante du Canada et des responsabilités et avantages conférés par la citoyenneté; 
3     On the written test, the applicant scored 2/6 on the language component and 8/20 on the knowledge component. Her scores did not improve on her subsequent appearance before the citizenship judge, receiving 0/6 on the language component and 4/20 on the knowledge component. The citizenship judge checked the boxes indicating that the applicant did not meet the mandatory requirements of section 5(1)(d) and (e). In the "Reasons" section the judge wrote:

·       Applicant signed ICES consent form. The Applicant failed the language hearing 0/6 and does not comply with paragraph 5(1)(d) of the Citizenship Act. The Applicant failed the knowledge hearing 4/20 and does not comply with paragraph 5(1)(e) of the Citizenship Act. 
4     No recommendation was made by the citizenship judge to the Minister under section 5(3) of the Act that the Minister grant citizenship on compassionate grounds.
5     There ensued a series of administrative errors. The citizenship judge checked the wrong "Decision" box, indicating that the application for Canadian citizenship was granted. The next day, on September 5, 2013, the departmental citizenship official responsible for processing the file signed the box "Decision seen" and checked the box "Citizenship Granted 5(1)," compounding the original error. A few days later, the applicant received a notice to appear for a citizenship ceremony and on September 26, 2013, she took the Oath of Citizenship and was given a citizenship certificate.
6     Immediately after the ceremony however, citizenship officer Jean-Simon Cantin, who served as clerk for the citizenship ceremony (and was not the officer who checked the "Decision seen" box), observed the error. He immediately called the applicant at her home and left a message with her son. The next day, officer Cantin called the applicant on her cellular phone, again leaving a message. The calls were not returned.
7     On or about November 22, 2013, the Registrar concluded that the applicant had been issued the certificate in error, and pursuant to section 26(3) of the Citizenship Regulations (SOR/93-246) (Regulations), cancelled the citizenship certificate. Section 26(3) of the Regulations provides:

·       26 (3) Where the Minister has determined that the holder of a certificate of naturalization, certificate of citizenship, miniature certificate of citizenship or other certificate that contains the holder's photograph, or certificate of renunciation, issued or granted under the Act or prior legislation or any regulations made thereunder is not entitled to the certificate, the Registrar shall cancel the certificate

·       (emphasis added) 
* * *

·       26 (3) Lorsque le ministre a déterminé que le titulaire d'un certificat de naturalisation, d'un certificat de citoyenneté, d'un certificat de citoyenneté petit format ou autre certificat de citoyenneté portant sa photographie, ou d'un certificat de répudiation délivré ou attribué en vertu de la Loi ou de la législation antérieure ou en application de leurs règlements n'a pas droit à ce certificat, le greffier annule le certificat

·       (je souligne) 
8     In sum, the applicant received a highly valued privilege which the Minister seeks to take back, and the question framed for decision is whether the Regulations provide the authority to do so. The applicant contends that the Regulations do not confer in the Registrar the authority to revoke a certificate of citizenship. The Regulations are not a collateral mechanism to supplement the statutory grounds under which citizenship, once obtained, can be lost. Section 7 in Part II of the Act, makes this clear:

·       No loss except as provided

·       7. 
A person who is a citizen shall not cease to be a citizen except in accordance with this Part or regulations made under paragraph 27(j.1). 
* * *

·       Perte de la citoyenneté

·       7. 
Le citoyen ne peut perdre sa citoyenneté que dans les cas prévus à la présente partie ou aux règlements pris en vertu de l'alinéa 27(j.1). 
9     The applicant also says that the cancellation was unlawful as the decision was made without notice to her and in breach of procedural fairness and must be set aside.
10     Before considering these arguments, I turn to the consequences of the failure of the Minister to appeal the decision of the citizenship judge. No notice of appeal from the decision of the citizenship judge was filed even though the Minister and his officials had knowledge of the error within the 60-day appeal period provided by section 14(5). The applicant contends that, having missed the appeal period, the Registrar cannot, through the device of an administrative, regulatory provision, collaterally attack the decision of the citizenship judge.
11     In my view, this argument is a distraction from the central question of the interpretation of the statute and regulations. Subsequent to the issuance of the certificate, no appeal could be taken from the citizenship judge's decision. That decision was spent, replaced by the oath and certificate. It must be remembered that the error was discovered after the certificate was issued and the oath taken. It was too late to appeal -- not because 60 days had expired, which it had not, but because the factual substratum of the appeal had evaporated. The foundation of the applicant's claim or proof of citizenship was no longer the citizenship judge's decision, but rather it was the certificate of citizenship.
I. Issues and Standard of Review
12     The central question before the Court is the resolution of the tension or interface between section 7 of the Act and section 26(3) of the Regulations. The Regulations upon which the Registrar relied to cancel the certificate are authorized by section 27 of the Act. Section 27(j) and (k) of the Act provide:

·       Regulations

·       27. 
The Governor in Council may make regulations 
[...]

·       (j) 
providing for the surrender and retention of certificates of citizenship, certificates of naturalization or certificates of renunciation issued or granted under this Act or prior legislation or any regulations made thereunder if there is reason to believe that the holder thereof may not be entitled thereto or has contravened any of the provisions of this Act; 
[...]

·       (k) 
providing for the surrender and cancellation of certificates referred to in paragraph (j) where the holder thereof has ceased to be entitled thereto; 

·       (emphasis added) 
* * *

·       Règlements

·       27. 
Le gouverneur en conseil peut, par règlement 
[...]

·       j) 
régir la restitution et la rétention des certificats de citoyenneté, de naturalisation ou de répudiation délivrés en vertu de la présente loi ou de la législation antérieure ou en application de leurs règlements lorsqu'il y a des raisons de croire que leur titulaire n'y a peut-être pas droit ou a enfreint la présente loi; 
[...]

·       k) 
régir la restitution et l'annulation des certificats mentionnés à l'alinéa j) lorsque leur titulaire a cessé d'y avoir droit; 

·       (je souligne) 
13     The core of the applicant's position is that in section 7, Parliament directed its mind to the circumstances under which citizenship could be lost and expressly prescribed the extent to which citizenship could be lost using regulatory authority. Neither of the exceptions in section 7 (misrepresentation or material disclosure) nor the circumstances contemplated by regulation 27(j.1) (born outside of Canada to a Canadian but did not become a citizen prior to February 15, 1977) are engaged in this case.
14     The central question, being one of statutory interpretation, is assessed against a correctness standard of review. Whether there was a breach of procedural fairness is also assessed against a standard of correctness, but the determination by the Registrar that the applicant's citizenship was granted as a result of administrative error involves applying a legal standard to a set of facts. It is therefore a question of mixed fact and law and is reviewable on a standard of reasonableness.
II. The Statutory Scheme Governing Citizenship
15     The foundation of Canadian citizenship is statutory. There is no independent or free-standing right to citizenship except as accorded by the provisions in Part I of the Act -- The Right to Citizenship. Largely writ, citizenship can be acquired through birth (section 3(1)(a) and (b)) or, as in this case, consequent to permanent residency (section 3(1)(c)). Part II of the Act - Loss of Citizenship - authorizes revocation of citizenship pursuant to subsection 10(1) where the Governor-in-Council is satisfied, on the basis of a report from the Minister, that the person has obtained citizenship by fraud or misrepresentation. Administrative error is not one of the enumerated grounds in Part II.
16     In the case of a permanent resident seeking Canadian citizenship, the specific statutory pre-conditions of the Act must be met. Those conditions require demonstration of a certain level of linguistic competence in either of Canada's official languages and an adequate knowledge of Canada's social, civic and political norms. These competencies must be established before citizenship can be granted.
17     Section 14(1) provides that a citizenship application "shall be considered by a citizenship judge who shall...determine whether or not the person who made the application meets the requirements of this Act and the regulations". Under section 14(2), the citizenship judge shall approve or not approve the application. As noted, section 14(5) allows the Minister or the applicant to appeal the decision of the citizenship judge within sixty days.
18     Section 12 in Part IV of the Act - Certificate of Citizenship - provides that where an application for citizenship under section 5 is approved the Minister shall issue the certificate.

·       Application for certificate of citizenship

·       12. 
(1) Subject to any regulations made under paragraph 27(i), the Minister shall issue a certificate of citizenship to any citizen who has made application therefore. 

·       Issue of certificate

·       (2) 
When an application under section 5 or 5.1 or subsection 11(1) is approved, the Minister shall issue a certificate of citizenship to the applicant. 

·       When effective

·       (3) 
A certificate issued pursuant to this section does not take effect until the person to whom it is issued has complied with the requirements of this Act and the regulations respecting the oath of citizenship. 
* * *

·       Demandes émanant de citoyens

·       12. 
(1) Sous réserve des règlements d'application de l'alinéa 27i), le ministre délivre un certificat de citoyenneté aux citoyens qui en font la demande. 

·       Délivrance aux nouveaux citoyens

·       (2) 
Le ministre délivre un certificat de citoyenneté aux personnes dont la demande présentée au titre des articles 5 ou 5.1 ou du paragraphe 11(1) a été approuvée. 

·       Entrée en vigueur

·       (3) 
Le certificat délivré en application du présent article ne prend effet qu'en tant que l'intéressé s'est conformé aux dispositions de la présente loi et aux règlements régissant la prestation du serment de citoyenneté. 
III. The Applicant's Perspective on the Statutory Scheme
19     The applicant contends that she is a citizen, has the certificate to prove it, and, further, that in section 7 Parliament expressly addressed the only circumstances under which citizenship, once obtained, can be lost. The Regulations contemplated by section 27 of the Act are necessarily confined to the implementation and support of those circumstances in Part II of the Act pertaining to the loss or revocation of citizenship, or where the certificate is required for civil or criminal proceedings or as evidence in an investigation. Further, the language of section 27(j) of the Act "if there is reason to believe that the holder thereof may not be entitled thereto" cannot constitute an independent authority to revoke citizenship, as Parliament has expressly considered this in sections 7 and 10.
20     To elaborate, the applicant's perspective is that section 26(3) of the Regulations has to be interpreted in conjunction with sections 7, 12(2), 14(1) and (14(5) of the Act, and if done so, section 26(3) of the Regulations does not give the Registrar the power to cancel a citizenship certificate that was issued after an application for citizenship was approved by a citizenship judge. More bluntly, the applicant asserts that the respondent is relying on section 26(3) of the Regulations to do what the Act does not allow. Section 12 of the Act requires that citizenship be granted, and Parliament has prescribed and limited the means of recourse to either an appeal or the launch of revocation proceedings.
21     In sum, the applicant's argument is that the finality contemplated by the statutory scheme cannot, in the absence of legislative authority, be set aside simply because the Minister wishes the result were otherwise. To interpret the Regulations so broadly would render the scheme meaningless, as the certificate could be revoked simply by administrative action of the Registrar who came to the view that the applicant was not entitled to the certificate. The legislation contemplates a right of appeal (now a right to seek leave to commence judicial review) to the Federal Court and revocation proceedings. The statute itself provides that the Minister shall issue the certificate and, similarly, that if not content with the decision of the citizenship judge, the Minister may appeal.
IV. Analysis
A. The Statutory Foundation for Cancellation by Regulation
22     Any consideration of the relationship between statutes and regulations begins with two principles. First, it is axiomatic that the words of an act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the act, the object of the act, and the intention of Parliament Second, the Regulations are subordinate legislation, and as such cannot derogate from or be inconsistent with the statute. As Professor Ruth Sullivan explains in Statutory Interpretation, 2nd ed (Toronto: Irwin Law, 2007) at page 312, "the paramountcy of statutes over delegated legislation operates as a presumption" and in cases of conflict, "the statute is presumed to prevail". The Regulations cannot take away that which the statute has granted.
23     To this extent the applicant's argument is well-founded. Statutes cannot be undone by subordinate legislation. In order to revoke by regulation, a citizenship certificate, granted by statute, there must be a foundation in the statute. There is such a foundation. Indeed, there are two: section 12(3) and section 27(j) of the Act. I turn first to section 12(3).
24     Section 12(3) provides:

·       When effective

·       12 (3) A certificate issued pursuant to this section does not take effect until the person to whom it is issued has complied with the requirements of this Act and the regulations respecting the oath of citizenship. 
* * *

·       Entrée en vigueur

·       12 (3) Le certificat délivré en application du présent article ne prend effet qu'en tant que l'intéressé s'est conformé aux dispositions de la présente loi et aux règlements régissant la prestation du serment de citoyenneté. 
25     Subsection 12(3) provides a legislative foundation for the cancellation of a certificate issued in error. A certificate, even if issued, is of no effect where the conditions precedent to citizenship have not been met. The applicant's citizenship was not revoked and sections 7, 10 and 18 not engaged, as the applicant never had citizenship. The requirements of the Act had not been fulfilled.
26     I turn to the second legislative foundation which supports the regulatory action. To repeat, section 27 authorizes regulations:

·       Regulations

·       27. 
The Governor in Council may make regulations 
[...]

·       (j) 
providing for the surrender and retention of certificates of citizenship, certificates of naturalization or certificates of renunciation issued or granted under this Act or prior legislation or any regulations made thereunder if there is reason to believe that the holder thereof may not be entitled thereto or has contravened any of the provisions of this Act; 
[...]

·       (k) 
providing for the surrender and cancellation of certificates referred to in paragraph (j) where the holder thereof has ceased to be entitled thereto; 

·       (emphasis added) 
* * *

·       Règlements

·       27. 
Le gouverneur en conseil peut, par règlement 
[...]

·       j) 
régir la restitution et la rétention des certificats de citoyenneté, de naturalisation ou de répudiation délivrés en vertu de la présente loi ou de la législation antérieure ou en application de leurs règlements lorsqu'il y a des raisons de croire que leur titulaire n'y a peut-être pas droit ou a enfreint la présente loi; 
[...]

·       k) 
régir la restitution et l'annulation des certificats mentionnés à l'alinéa j) lorsque leur titulaire a cessé d'y avoir droit; 

·       (je souligne) 
27     Sections 27(j) and (k) contemplate two circumstances where a certificate of citizenship may be cancelled. In this case, the Registrar believed that the applicant was not entitled to the certificate. That belief had an objective foundation, rooted in the record before her. The action was purely administrative, and required no adjudicative assessment, or importantly, re-adjudication of the substance of the citizenship judge's decision. The authority under the Regulations was used as it was intended, not to change, vary or substitute a Ministerial decision for the one that was reached under the Act, rather to ensure that the outcome conformed with the adjudicative process contemplated by the Act itself. Viewed in this light regulation 26(3) is analogous to Federal Court Rule 397(1)(a) which allows the Court to reconsider an order where the order does not accord with the reasons given. That is precisely what occurred here. Rules of practice applicable to superior courts contain mechanisms to address administrative errors and it is not surprising to see an analogous provision in legislation like the Citizenship Act.
28     To read section 7 as to trump section 27 of the Act would produce two absurd results. First, the valued right of citizenship would be given to someone who was not, as a matter of fact or as a matter of law, entitled to it. Parliament's intention that all Canadians possess a minimal degree of linguistic ability and civic awareness would be thwarted. Secondly, the procedure triggered to remedy the administrative error, namely that of a ministerial report and Cabinet consideration and adjudicative review, would be entirely disproportionate to the nature of the issues underlying cancellation of the certificate.
29     Further, to borrow from Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27 at para 23 a "label of absurdity" can be attached to interpretations that render some part of the statute "pointless or futile". The argument advanced by the applicant with respect to the scope of section 7 neutralizes both section 12(3), the purpose of which is to provide a fail-safe measure in circumstances such as these and section 27(j), which contemplates that citizenship certificates might be issued in circumstances where the requirements of the Act were not met. This is not a case where citizenship, once lawfully granted, is lost or revoked. Here, the applicant never had citizenship. That is the effect of sections 12(3) and 27(j).
30     Section 27 of the Act contemplates cancellation in situations such as those in this case where a certificate has been issued through administrative error as well as in exigent or emergent circumstances. Parliament, in enacting section 27, understood the necessity of regulations to give effect to the Act and its objectives. This interpretation of section 27(j) and (k) is a plain and obvious reading of the statute, but also is consistent with the obligation under section 12 of the Interpretation Act (RSC, 1985, c I-21) to read the statute with a "fair, large and liberal construction and interpretation as best ensures the attainment of its objects". This interpretation also aligns with the principle of achieving "harmony, coherence, and consistency" within and between statutes (Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42 at para 27, citing R v Ulybel Enterprises Ltd., 2001 SCC 56 at para 52). No section of the statute is negated, and there is coherence between sections 12(3) and 27 of the Act and section 26(3) of the Regulations.
31     In sum, section 26(3) of the Regulations is authorized by section 27(j) and (k) of the Act. Regulation 26(3) is neither inconsistent with, nor a derogation from, any right created by the Act itself; rather section 26(3) implements, administratively, the intent of Parliament as reflected in sections 12(3) and 27(j) and (k) of the Act. This interpretation also ensures that the privilege of Canadian Citizenship is granted only as intended by Parliament.
32     Before concluding, I turn to Stanizai v Canada (Minister of Citizenship and Immigration), 2014 FC 74, and in particular in paragraph 44 of the decision, where Justice Anne Mactavish states that "an error within the offices of the respondent does not have the effect of overriding the statutory requirements of the Citizenship Act and conferring a discretion on the Minister to withhold citizenship that he would not otherwise have." This decision is relied on by the applicant, but it is entirely distinguishable on its facts. In Stanizai, the applicant met all the statutory requirements for citizenship but the Minister nevertheless delayed in granting citizenship. The applicant in the present case did not meet the statutory requirements for citizenship. Further, Stanizai did not involve the use of section 26(3) of the Regulations to cancel the citizenship certificate. The decision does not advance the applicant's position.
33     I turn now to the applicant's alternative argument, namely that the cancellation breached the principles of procedural fairness. The standard of review for this is correctness.
34     The Court of Appeal, in Valeta v Canada (Minister of Citizenship and Immigration), 2006 FCA 138, made clear its view as to the application of the principles of procedural fairness in matters dealing with citizenship. Regardless of the scope and extent to which those principles apply, and in respect of which aspect of the process they might apply, the applicant in this case had notice that there was an issue with her citizenship certificate. The obligation to provide notice and the duty of fairness discharged by the two calls to the applicant by officer Cantin. The applicant chose not to avail herself of further information that would have been forthcoming had she returned the calls. A party cannot turn a blind eye, or a deaf ear, to the information that is made available to her and then plead lack of notice and breach of procedural fairness.
35     In any event, even if there was a breach of procedural fairness, I would withhold relief. Relief under section 18.1 of the Federal Courts Act is equitable and discretionary and can be withheld where setting aside the decision would not affect the ultimate result; Mobil Oil Canada Ltd. v Canada-Newfoundland Offshore Petroleum Board, [1994] 1 SCR 202, at paras 51, 52. In this case, the applicant failed both of the mandatory requirements established by statute. To set aside the decision would serve no purpose, as the applicant would still be ineligible for citizenship. Remedies that serve no purpose will not be granted.
JUDGMENT
THIS COURT ORDERS that the application for judicial review is dismissed with costs.
RENNIE J.
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