Ayyad v. Canada (Minister of Citizenship and
Immigration)
Between
Karim Ayyad, Applicant, and
The Minister of Citizenship and Immigration, Respondent
Karim Ayyad, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2014] F.C.J. No.
1164
2014 FC 1101
Docket: T-495-14
Federal Court
Toronto, Ontario
Kane J.
Heard: November 17, 2014.
Judgment: November 20, 2014.
Docket: T-495-14
Federal Court
Toronto, Ontario
Kane J.
Heard: November 17, 2014.
Judgment: November 20, 2014.
(43 paras.)
JUDGMENT AND REASONS
1 KANE
J.:-- The applicant seeks judicial review of the decision of Citizenship Judge,
Sharon Robertson, made on May 30, 2013 which found that the applicant did not
have a good and sufficient cause not to appear to take the Oath of Citizenship.
2 The
facts are straightforward. An application for citizenship was made on behalf of
the applicant, who was a minor at that time, on May 4, 2012. On April 5, 2013,
his citizenship was granted by an Officer at Citizenship and Immigration Canada
(CIC). On April 17, 2013, a Notice to Appear was sent directing the applicant
to attend a ceremony on May 9, 2013 to take his Oath of Citizenship. The notice
was sent to the mailing address previously provided by the applicant's mother
at their home in London, Ontario.
3 The
applicant, who was in London, England at that time, received the Notice to
Appear shortly after May 9, 2013. He advised CIC by letter dated May 14, 2013
that he had been unable to attend as directed because he was in London, England
preparing to take his exams at the end of his first year at the City Law School
of City University where he was enrolled and attached a letter from the
University confirming his enrolment. He requested that the Oath of Citizenship
be rescheduled.
4 The
Citizenship Judge decided that the applicant's explanation for failing to
attend to take his Oath did not constitute a good and sufficient cause. As a
result, the application was then considered abandoned. After repeated requests
about the status of the applicant's citizenship application, Counsel for the
applicant was advised by letter dated February 24, 2014, from an unnamed
Citizenship Official, that the file had been closed.
5 The
result of this determination -- that his application for citizenship was
abandoned -- is that the applicant would have to make a new application for
citizenship, now as an adult. The process would recommence and he would have to
satisfy all the requirements, despite the fact that he had been granted
citizenship in 2013 and the only remaining step was for him to take the Oath of
Citizenship.
6 For
the reasons that follow, the application for judicial review is allowed.
The decision under review
7 The
decision of the Citizenship Judge is set out on a form dated May 30, 2013. It
notes that the applicant was duly notified to attend on May 9, 2013 and did not
attend, but notified CIC and submitted his explanation on May 28, 2013, which
was within the 60 day period specified in the Citizenship
Regulations, SOR/93-246.
8 In
the box provided to set out the explanation offered, the judge reiterates
verbatim the content of the applicant's letter; he had travelled to London,
England to prepare for his end of year Law School exams, which started the
first week of May.
9 The
judge then reiterates verbatim the three examples of acceptable explanations
provided in the Processing Manual (CP 13, section 6.5) regarding "good and
sufficient cause" for missing the Oath Ceremony. The Citizenship Judge
then ticked the box indicating that she did not agree that the applicant had
good and sufficient cause not to appear.
The Relevant Provisions
10 The
Citizenship Regulations,
SOR/93-246 (as of the date of this decision) provide:
(1) Where a person who
fails to appear and take the oath of citizenship at the date, time and place
appointed for that purpose fails, within 60 days after that date, to satisfy
the citizenship judge or foreign service officer before whom the person was to
appear, or the Minister where the person was to appear before a Minister of the
Crown, that the person was prevented from appearing by some good and sufficient
cause, the person's certificate of citizenship shall be returned to the
Registrar.
Where a person
described in subsection (1) satisfies the citizenship judge or foreign service
officer before whom the person was to appear, or the Minister where the person
was to appear before a Minister of the Crown, of the matter referred to in that
subsection, another date, time and place shall be appointed by the citizenship
judge, foreign service officer or the Registrar for the person to appear and
take the oath of citizenship
* * *
(1) Lorsque la personne
qui n'a pas comparu et n'a pas prêté le serment de citoyenneté aux date, heure
et lieu fixés à cette fin ne parvient pas, dans les 60 jours qui suivent cette
date, à convaincre le juge de la citoyenneté ou l'agent du service extérieur
devant lequel elle était censée comparaître, ou le ministre si elle était
censée comparaître devant un ministre de la Couronne, qu'une raison valable l'a
empêchée de comparaître, son certificat de citoyenneté doit être renvoyé au
greffier.
Lorsque la personne
mentionnée au paragraphe (1) réussit à convaincre le juge de la citoyenneté ou
l'agent du service extérieur devant lequel elle était censée comparaître, ou le
ministre si elle était censée comparaître devant un ministre de la Couronne, du
bien-fondé de son empêchement à comparaître, le juge de la citoyenneté, l'agent
du service extérieur ou le greffier fixe d'autres date, heure et lieu auxquels
elle devra comparaître pour prêter le serment de citoyenneté.
11 The
Citizenship Act, RSC1985, c C-29
(the Act), now provides in Section 13.2 that an application is abandoned where
the applicant fails to attend without reasonable excuse. That determination
would be made by the Minister or the Minister's delegate. While Section 13.2 of
the Act does not apply to this application for judicial review, the respondent
helpfully points out that, in the event the Court allows the application for
judicial review, any reconsideration of the applicant's reason for not
attending to take his Oath of Citizenship would be determined in accordance
with Section 13.2 by the Minister and not by a Citizenship Judge. In addition,
the wording of "good and sufficient cause" has been replaced by
"reasonable excuse".
12 Section
13.2 of the Citizenship Act now
provides:
·
13.2 (1) The Minister may treat
an application as abandoned
·
(a) if the applicant fails, without reasonable excuse, when required
by the Minister under section 23.1,
in the case where the
Minister requires additional information or evidence without requiring an
appearance, to provide the additional information or evidence by the date
specified, or
in the case where the
Minister requires an appearance for the purpose of providing additional
information or evidence, to appear at the time and at the place -- or at the
time and by the means -- specified or to provide the additional information or
evidence at his or her appearance; or
·
(b) in the case of an applicant who must take the oath of citizenship
to become a citizen, if the applicant fails, without reasonable excuse, to
appear and take the oath at the time and at the place -- or at the time and by
the means -- specified in an invitation from the Minister.
If the Minister treats
an application as abandoned, no further action is to be taken with respect to
it.
* * *
·
13.2 (1) Le ministre peut
considérer une demande comme abandonnée dans les cas suivants:
·
a) le
demandeur omet, sans excuse légitime, alors que le ministre l'exige au titre de
l'article 23.1:
de fournir, au plus
tard à la date précisée, les renseignements ou les éléments de preuve
supplémentaires, lorsqu'il n'est pas tenu de comparaître pour les
présenter,
de comparaître aux
moment et lieu -- ou au moment et par le moyen --fixés, ou de fournir les
renseignements ou les éléments de preuve supplémentaires lors de sa
comparution, lorsqu'il est tenu de comparaître pour les présenter;
·
b) le
demandeur omet, sans excuse légitime, de se présenter aux moment et lieu -- ou
au moment et par le moyen -- fixés et de prêter le serment alors qu'il a été
invité à le faire par le ministre et qu'il est tenu de le faire pour avoir la
qualité de citoyen.
Il n'est donné suite à
aucune demande considérée comme abandonnée par le ministre.
13 Processing
Manual CP 13 -- Administration, section 6.5, provides:
Exceptions
·
If an applicant provides CIC
officials with a reasonable explanation for failure to respond within requested
timeframes AND provides proof or evidence to support the explanation,
additional time may be granted. At the discretion of the citizenship officer
and depending on the nature of the circumstance, an applicant may be given up
to six months from the date specified on the original notice by which to comply
with the request to provide required documents to appear.
·
Example: If the date on the
original notice was June 5, 2004, the applicant would have up until December 5,
2004 to comply. This means that clients cannot be made unavailable in GCMS for
more than six months. Clients should not be given more than six months
"grace" to comply with the requirements of the Act.
Acceptable explanations (examples)
·
Applicant must be away for an
extended period to care for a dying parent.
·
Applicant is unable to appear
as a result of health constraints following an illness/accident.
·
Other extenuating circumstances
as deemed reasonable by CIC (e.g. applicant called out of country to sort out
family/ business affairs as a result of death in the family).
Unacceptable explanations (examples)
·
Applicant lives or continually
travels abroad and wants to wait until next trip to Canada.
·
Applicant has not prepared for
language /knowledge assessment and needs more time to complete classes.
·
Applicant neglected to appear
on scheduled date.
·
On occasion, there may be
reasons put forward by the applicant which are difficult to assess. If a
citizenship officer is unsure whether or not to initiate abandonment
procedures, advice should be sought from the Integration Branch, Citizenship
Division.
* * *
Exceptions
·
Si un demandeur founit à un
fonctionnaire de la citoyenneté une explication raisonnable de l'absence de
réponse dans le délai prescrit ET une preuve à l'appui de son explication, il
peut obtenir un délai supplémentaire. L'agent de la citoyenneté peut, selon les
motifs de l'absence de réponse, accorder un délai supplémentaire maximal de six
mois, à compter de la date précisée dans l'avis original, dans lequel le
demandeur devra fournir les documents exigés ou se présenter.
·
Exemple: Si la date dans l'avis
original était le 5 juin 2004, le demandeur pourrait avoir jusqu'au 5 décembre
2004 pour se conforme à l'avis. Cela signifie que le dossier d'un client ne
peut pas rester inactif dans le SMGC plus de six mois. Il ne faut pas accorder
plus de six mois "de grâce" aux clients pour se conformer aux
exigences de la Loi.
Explication acceptables (exemples)
·
Le demandeur doit s'absenter
pour une période prolongée afin de s'occuper d'un parent mourant.
·
Le demandeur ne peut pas se
présenter pour des raisons de santé (maladie ou accident).
·
D'autres circonstances
indépendantes de la volonté du demandeur que CIC jugera raisonnables (par
exemple, le demandeur a été appelé à l'étranger pour une affaire familiale ou
autre, à la suite d'un décès dans la famille).
Explication inacceptables (exemples)
·
Le demandeur vit ou voyage
continuellement à l'étranger et veut attendre d'être revenu au Canada.
·
Le demandeur ne s'est pas
préparé pour l'examen (connaissance de la langue et connaissance du Canada) et
a besoin de plus de temps pour suivre les cours.
·
Le demandeur ne s'est tout
simplement pas présenté à la date prescrite.
·
Il peut arriver qu'un demandeur
fournisse une explication qui est difficile à évaluer. En case de doute,
l'agent de la citoyenneté doit demander conseil à la Division de la
citoyenneté, de la Direction générale de l'intégration.
(I note that CP 13 applied to the provisions in
effect prior to August 1, 2014, including section 23 of the Regulations.)
The Applicant's position
14 The
applicant argues that the decision is not reasonable because the Citizenship
Judge fettered her discretion by considering the examples in the Guidelines to
be the only acceptable explanations that would constitute "good and
sufficient cause" for failing to attend to take the Oath rather than
considering whether the applicant's explanation would be a good and sufficient
cause. The applicant notes that CP 13 is a guideline only and there is nothing in
the Act or the Regulations to limit the discretion of the Citizenship Judge.
15 The
applicant also argues that the Citizenship Judge failed to provide adequate
reasons; the information provided does not reveal an intelligible, transparent
or justifiable decision. The reasons do not demonstrate any analysis about why
the applicant's explanation is not a good and sufficient cause or would not
fall within "extenuating circumstances", which is provided as an
example in CP 13.
16 The
applicant submits that the respondent has attempted to provide additional
reasons that are not on the record at all -- i.e., that the Notice was sent to
the applicant's last known address and that the Judge considered his
explanation more analogous to one of the unacceptable explanations. The
applicant also argues that the reasons should not require the Court to
speculate to provide additional support for the reasonableness of the decision
(Canada (Citizenship and Immigration) v Jeizan, 2010 FC 323, 386 FTR 1 [Jeizan]).
The Respondent's Position
17 The
respondent submits that the decision is reasonable and that the reasons,
although brief, are adequate.
18 The
respondent notes that there is no statutory requirement to provide reasons when
denying an applicant's explanation or request for a new date to take the Oath,
unlike decisions made pursuant to section 14 of the Citizenship
Act which require that reasons be provided.
19 Alternatively,
the respondent submits that, if there is a duty to provide reasons, it is
minimal and it was satisfied by the letter sent to the applicant in February
2014, attaching the Citizenship Judge's decision.
20 The
respondent submits that this decision, which sets out the examples of
acceptable explanations, along with the record, which includes the applicant's
letter and the letter from City University, make it possible to understand why
the Citizenship Judge found that the explanation did not constitute good and
sufficient cause. She considered the applicant's explanation, was guided by the
examples, but found that his reason for not appearing was not a good and
sufficient cause.
21 The
respondent submits that the Notice to Appear was sent to the applicant at the
address his mother had very recently provided and the fact that he was out of
the country when the Notice was sent was not an adequate explanation.
22 The
respondent argues that the Guidelines do not fetter the Citizenship Judge's
discretion, noting that they specifically include, as an example of a good and
sufficient cause, "other extenuating circumstances as deemed reasonable by
CIC". Nor did the Citizenship Judge fetter her discretion by referring to
the Guidelines. The respondent argues that by setting out the applicant's
explanation and the examples of acceptable explanations, the reasons show that
the Citizenship Judge considered the applicant's circumstances, but concluded
that these did not constitute a good and sufficient cause.
The Issues
23 The
applicant challenges both the reasonableness of the decision to refuse his
explanation as a good and sufficient cause and the adequacy of the reasons
provided by the Citizenship Judge, which consist of a cut-and-paste from his
letter and the CP Guidelines.
24 The
issue is whether the decision is reasonable; this includes whether the
Citizenship Judge fettered her discretion, whether the reasons are adequate to
allow the Court to understand why the Citizenship Judge reached the decision
and whether the decision is within the range of acceptable outcomes (Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62, [2011] 3 SCR 708 [Newfoundland Nurses]).
Standard of Review
25 The
applicant submits that issues related to fettering of discretion are issues of
procedural fairness, reviewable on the standard of correctness.
26 The
respondent submits that both issues -- the adequacy of the reasons and whether
the judge fettered her discretion -- are reviewable on the reasonableness
standard.
27 The
standard of reasonableness applies to the Citizenship Judge's decision as it
involves an exercise of discretion based on questions of fact and law.
28 The
role of the Court is to determine whether the decision "falls within 'a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law' (Dunsmuir, at para 47). There might be more than one reasonable
outcome. However, as long as the process and the outcome fit comfortably with
the principles of justification, transparency and intelligibility, it is not
open to a reviewing court to substitute its own view of a preferable
outcome": (Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 59, [2009] 1
SCR 339, citing Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 [Dunsmuir]).
29 The
inadequacy of the reasons is not a stand alone ground to allow an application
for judicial review. In Newfoundland Nurses, the Supreme Court of Canada elaborated on the requirements of Dunsmuir, noting that the reasons are to
"be read together with the outcome and serve the purpose of showing
whether the result falls within a range of possible outcomes" (at para
14). In addition, where necessary, courts may look to the record "for the
purpose of assessing the reasonableness of the outcome" (at para 15). The
Court summed up their guidance at para 16:
·
In other words, if the reasons
allow the reviewing court to understand why the tribunal made its decision and
permit it to determine whether the conclusion is within the range of acceptable
outcomes, the Dunsmuir criteria are met.
30 However,
a Court is not expected to look to the record to fill in gaps to the extent
that it rewrites the reasons. In Pathmanathan v Canada
(Citizenship and Immigration), 2013 FC 353 at para 28,
430 FTR 192 [Pathmanathan],
Justice Rennie noted that Newfoundland Nurses "is not an invitation to the supervising court to re-cast the
reasons given, to change the factual foundation on which it is based, or to
speculate as to what the outcome would have been had the decision-maker
properly assessed the evidence."
31 Similarly
in Kamolafe v Canada (Citizenship and Immigration), 2013 FC 431, 16 Imm LR (4th) 267, relied on by the applicant,
Justice Rennie noted, at para 11, that "Newfoundland Nurses is not an open
invitation to the Court to provide reasons that were not given, nor is it
licence to guess what findings might have been made or to speculate as to what the
tribunal might have been thinking."
The decision is not reasonable
The Citizenship Judge fettered her discretion
32 The
applicant relies on Singh Bajwa v Canada (Citizenship
and Immigration), 2012 FC 864 at para 46, 415 FTR 107,
as support for his position that the Citizenship Judge limited her
consideration to the Guidelines rather than considering the law and, as a
result, fettered her discretion. In that case, Justice O'Keefe found that the
fettering of discretion was reviewable on the standard of correctness and the
decision-maker was owed little deference.
33 I
agree that the Citizenship Judge's narrow consideration of the examples in the
Guidelines as the only possible good and sufficient causes demonstrates a
fettering of her discretion.
34 The
Guidelines are meant to provide guidance, as the name suggests, and not to
dictate the decision or to provide a checklist. The Guidelines, on their own,
do not fetter the decision-maker's discretion; rather, it is the reliance on
the Guidelines instead of the law and the Regulations that is the problem. The
Citizenship Judge has the discretion to consider a range of explanations, some
of which would be analogous to the examples and others which would not; then
must determine if the explanation provided by the applicant is a good and
sufficient cause.
35 Whether
the correctness or reasonableness standard of review applies does not change
the outcome in the present case. However, I prefer the approach of Justice
Stratas in Stemijon Investments Ltd v Canada (Attorney
General), 2011 FCA 299 at paras 22-23, 341 DLR (4th)
710, where he first explained the notion of fettering of discretion and then
found that this should be considered in the context of assessing the
reasonableness of the decision. He offered this approach at para 24:
·
[24] Dunsmuir reaffirms a longstanding, cardinal principle: "all exercises
of public authority must find their source in law" (paragraphs 27-28). Any
decision that draws upon something other than the law -- for example a decision
based solely upon an informal policy statement without regard or cognizance of
law, cannot fall within the range of what is acceptable and defensible and,
thus, be reasonable as that is defined in Dunsmuir at paragraph 47. A decision that is the product of a fettered
discretion must per se be unreasonable.
36 I
agree that, in the present case, the decision is the product of fettered
discretion and is, therefore, unreasonable.
37 If
I am wrong in this finding, I would also find that the decision is unreasonable
because the reasons do not permit the Court to understand why the Citizenship
Judge made the decision or whether the decision falls within the range of
acceptable outcomes.
The Reasons are not adequate
38 Although
the adequacy of reasons is not a stand alone ground for judicial review, the
pasting in of a paragraph from the applicant's letter setting out the reason he
missed the Oath Ceremony, followed by the pasting in of the examples of
acceptable explanations from CP 13, section 6.5 cannot be considered reasons.
Although there is no statutory requirement to provide reasons, there remains a
basic requirement to advise the applicant why his explanation is not a good and
sufficient cause. The cut-and-paste approach does not disclose the reasoning of
the Citizenship Judge. The respondent has offered potential reasons to fill in
this gap, but these are not on the record and call for speculation, which the
Court may not engage in.
39 As
noted in Jeizan, above, by
Justice de Montigny at para 17:
·
[17] Reasons for decisions are
adequate when they are clear, precise and intelligible and when they state why
the decision was reached. Adequate reasons show a grasp of the issues raised by
the evidence, allow the individual to understand why the decision was made and
allow the reviewing court to assess the validity of the decision: see Lake v. Canada (Minister of Justice), 2008
SCC 23, [2008] S.C.J. No. 23 at para. 46; Mehterian v. Canada
(Minister of Employment and Immigration), [1992] F.C.J.
No. 545 (F.C.A.); VIA Rail Canada Inc. v. National
Transportation Agency, [2001] 2 F.C. 25 (F.C.A.),
[2001] 2 F.C. 25 (C.A.), at para. 22; Arastu, above, at paras. 35-36.
40 In
Canada (Citizenship and Immigration) v Arastu, 2008 FC 1222 at paras 35-36, 174 ACWS (3d) 336, Justice Russell
explained the benefits of reasons. Although that case dealt with a decision
made under section 14 of the Act, for which there is a requirement for reasons
to be provided, that decision affected the status of the applicant, as it does
in the present case:
·
[35] The duty to provide
reasons is a salutary one. Not only do reasons foster better decision-making by
ensuring that the issues and judge's reasoning are well-articulated, but they
also provide a basis for an assessment of possible grounds for appeal or
review. This is particularly important when the decision is subject to a
deferential standard of review: VIA Rail Canada Inc. v.
National Transportation Agency, 193 D.L.R. (4th) 357
(F.C.A.) at paragraphs 17 and 19.
·
[36] The duty requires that the
reasons be adequate. They must set out the findings of fact and must address
the major points in issue. The reasoning process followed by the decision maker
must be set out and must reflect consideration of the main relevant factors.
Further, a determination of whether reasons are adequate must be considered in
light of the particular circumstances of each case. Where a person's status is
at issue, the requirements are more stringent: Baker at paragraphs 25, 75 and Via Rail at paragraphs 21-22.
41 The
reasons required of the Citizenship Judge to either agree or disagree with an
applicant's explanation for failing to attend to take the Oath need not be
detailed but should disclose not only that the judge has considered the
explanation offered but why the judge found that the explanation was not a good
and sufficient cause. In the present case, the decision affects the status of
the applicant. He is no longer one small step from Citizenship. Given the
consequences, more than the brief reference to his explanation, the examples
and the check mark indicating lack of agreement is required.
42 The
guidance provided by Newfoundland Nurses calls on the Court to consider whether the reasons, supplemented by
the record, allow it to understand why the Citizenship Judge made the decision
and determine whether the decision falls within the range of acceptable
outcomes. I have looked to the sparse record to supplement and support the
outcome, but it does not assist. The Court cannot rewrite the decision with
reasons which are not there (Pathmanathan, above).
Conclusion
43 The
application for judicial review is allowed. The applicant's explanation for not
attending to take the Oath of Citizenship must be reconsidered in accordance
with the statutory provisions now in force. Once the decision is made, it
should be communicated to the applicant promptly. No costs are ordered.
JUDGMENT
·
THIS COURT'S JUDGMENT is that:
The application for
judicial review is allowed.
The applicant's
explanation for not attending to take the Oath of Citizenship must be
reconsidered in accordance with the statutory provisions now in force. Once the
decision is made, it should be communicated to the applicant promptly.
No costs are
ordered.
KANE J.
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