Berisha v. Canada (Attorney General)
Between
Shaqe Berisha, Applicant, and
Attorney General of Canada, the Minister
of Citizenship and Immigration and
the Minister of Public Safety and Emergency
Preparedness, Respondents
And between
Shaqe Berisha, Applicant, and
Attorney General of Canada and the Minister
of Public Safety and Emergency
Preparedness, Respondents
And between
Shaqe Berisha, Applicant, and
Attorney General of Canada and the Minister
of Public Safety and Emergency
Preparedness, Respondents
Shaqe Berisha, Applicant, and
Attorney General of Canada, the Minister
of Citizenship and Immigration and
the Minister of Public Safety and Emergency
Preparedness, Respondents
And between
Shaqe Berisha, Applicant, and
Attorney General of Canada and the Minister
of Public Safety and Emergency
Preparedness, Respondents
And between
Shaqe Berisha, Applicant, and
Attorney General of Canada and the Minister
of Public Safety and Emergency
Preparedness, Respondents
[2016] F.C.J. No. 726
2016 FC 755
Dockets: IMM-3874-15, IMM-3872-15, IMM-3873-15
Federal Court
Saskatoon, Saskatchewan
Diner J.
Heard: June 15, 2016.
Judgment: July 5, 2016.
Dockets: IMM-3874-15, IMM-3872-15, IMM-3873-15
Federal Court
Saskatoon, Saskatchewan
Diner J.
Heard: June 15, 2016.
Judgment: July 5, 2016.
(40 paras.)
JUDGMENT AND REASONS
1 DINER
J.:-- This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, SC
2001, c-27 [the Act]. The Applicant seeks judicial review of three interrelated
decisions:
A report under
subsection 44(1) of the Act [the Report] dated February 16, 2015 and made by an
Inland Enforcement Officer [the Officer] at Canada Border Services
Agency;
A referral under
subsection 44(2) of the Act [the Referral] dated February 27, 2015 and made by
a Delegate of the Minister [the Delegate] at Canada Border Services
Agency;
A deportation order
[the Order] dated August 7, 2015 and issued by a member [the Member] of the
Immigration Division of the Immigration and Refugee Board of Canada.
2 The
three matters, originally filed separately, were consolidated into this
judicial review.
I. Background
3 The
Applicant was born in Kosovo in 1976 and arrived in Canada as a refugee on
October 31, 2005. On March 16, 2011, the Applicant made an application for
Canadian citizenship.
4 On
June 13, 2012, the Applicant was charged with sexual assault pursuant to
section 271 of the Criminal Code,
RSC 1985, c C-46. Sexual assault is an indictable offence and, as per
subsection 22(1) of the Citizenship Act, RSC 1985, c C-29 as it read at the relevant time, "a person
shall not be granted citizenship ... or take the oath of citizenship ... while
the person is charged with, on trial for or subject to or a party to an appeal
relating to ... an indictable offence under any Act of Parliament".
5 On
March 11, 2013, the Applicant wrote his citizenship test. At that time, he
signed a form declaring that he was not prohibited from taking the oath of
citizenship. On May 16, 2013, he appeared before a Citizenship Judge, signing
another form once again declaring that he was not prohibited from taking the
oath.
6 On
September 17, 2013, the same day the Applicant's trial for the sexual assault
charge was scheduled (but adjourned), the Applicant took his oath of
citizenship and was issued a certificate of citizenship. Citizenship and
Immigration Canada [CIC] was only informed of the charge against the Applicant
after it had administered the citizenship ceremony.
7 On
October 11, 2013, the Applicant was convicted of sexual assault.
8 On
November 7, 2013, the Applicant received a letter from the Registrar of
Canadian Citizenship. The Registrar had decided to cancel his certificate of
citizenship since the Applicant "had been charged with an indictable
offence and [was] prohibited from taking the Oath". The Applicant did not
challenge this citizenship decision.
9 On
July 4, 2014, the Applicant was sentenced to three years' imprisonment.
10 On
February 5, 2015, the Applicant received a letter from the Officer advising him
that an inadmissibility report might be issued against him under subsection
44(1) of the Act based on grounds of serious criminality (as per paragraph
36(1)(a) of the Act). The letter invited the Applicant to make submissions in
response and he did so.
11 The
Officer issued the Report on February 16, 2015, finding the Applicant
inadmissible pursuant to paragraph 36(1)(a) based on the following information:
·
THAT: SHAQE BERISHA
IS NOT A CANADIAN
CITIZEN
BECAME A PERMANENT
RESIDENT ON 31OCT2005
WAS CONVICTED ON
11OCT2013 AT MOOSE JAW, SK OF SEXUAL ASSAULT CONTRARY TO SECTION 271 OF THE
CRIMINAL CODE OF CANADA
WAS SENTENCED ON
04JUL2014 TO THREE YEARS IMPRISONMENT
SEXUAL ASSAULT IS AN
INDICTABLE OFFENCE AND IF CONVICTED THE MAXIMUM PUNISHMENT IS A TERM OF
IMPRISONMENT NOT EXCEEDING TEN YEARS
·
(Certified Tribunal Record for
File IMM-3874-15 at 16 [CTR])
12 The
Officer also prepared a referral letter to accompany the Report that provided
more detail about the Applicant's circumstances and submissions. In that
letter, the Officer recommended that the file be referred for an admissibility
hearing and that the Applicant be issued a deportation order:
·
This is Mr. Berisha's only
conviction however it was from a crime which was being committed throughout a
long period of time and it was a violent crime which will have a big impact on
the victim. He also shows he can not [sic] be trusted as he misrepresented on his citizenship papers as he
failed to declare his outstanding charges on numerous occasions. Mr. Berisha
will not have appeal rights however he is a convention refugee and if a
deportation order is issued CBSA still requires a danger certificate to remove
the subject from Canada.
·
(CTR at 10)
13 The
Officer also noted that he was advised that the Applicant was not a Canadian
citizen.
14 On
February 27, 2015, the Delegate referred the Report to the Immigration Division
for an admissibility hearing. In the Referral, the Delegate agreed with the
Officer's recommendations as laid out in the Report and the referral letter.
15 On
August 7, 2015, after an admissibility hearing, the Member issued the Order. In
reasons issued orally at the hearing, the Member concluded that the Applicant
was not a citizen of Canada, had been convicted of sexual assault under section
271 of the Criminal Code, and was therefore inadmissible. This in turn, the
Member concluded, required the issuance of a Deportation Order.
II. Issues
16 The
Applicant raises three issues:
Did the Officer err in
issuing the Report when the Applicant had a certificate of citizenship at the
time of his conviction?
Did the Officer or the
Delegate err in failing to provide adequate reasons?
Did the Officer or the
Delegate err in failing to provide the Applicant an opportunity to make
submissions?
III. Analysis
Standard of Review
17 The
question of whether the Officer could have issued the Report in the first place
depends on a finding of fact: whether the Applicant was, or was not, a citizen
at the time of the conviction. As such, it is reviewable on a reasonableness
standard (Faci v Canada (Public Safety and Emergency
Preparedness), 2011 FC 693 at para 17). This Court will
not intervene if the decision as a whole is justified, transparent, and
intelligible, and falls within a range of acceptable, defensible outcomes (Dunsmuir v New Brunswick, 2008 SCC 9 at para
47 [Dunsmuir]).
18 Similarly,
the question of whether the Officer (in issuing the Report) or the Delegate (in
issuing the Referral) provided adequate reasons is reviewable on a
reasonableness standard (Newfoundland and Labrador
Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 11 [Newfoundland Nurses]). Adequacy of reasons is not a stand-alone basis of review.
Instead, it must be considered "together with the outcome" and
"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" (Newfoundland Nurses at paras 14-16).
19 Finally,
the question of whether the Applicant was given sufficient opportunity by
either the Officer or the Delegate to make submissions is an issue of
procedural fairness and is thus reviewable on a correctness standard (Finta v Canada (Public Safety and Emergency Preparedness), 2012 FC 1127 at para 30 [Finta]).
Did the Officer err in
issuing the Report?
20 The
Applicant argues that the Officer erred in issuing the Report since, at the
time of the conviction, the Applicant had been issued a certificate of
citizenship. It was only after the conviction that the certificate of
citizenship was revoked. Since there is nothing in the Act that says that a
citizen can be the subject of a report under subsection 44(1), and since the
letter from the Registrar does not state that the cancellation would have a
retroactive effect, the Applicant argues that he cannot properly be subject to
an inadmissibility report, a referral under subsection 44(2) of the Act, or a
deportation order. The Applicant further explained at the hearing that a
statutory interpretation of that section could only lead to one conclusion:
that only the Applicant's status at the time of the conviction matters. If the
legislators had wanted to include citizens who subsequently lost their
citizenship from that clause, they would have explicitly stated so.
21 The
Respondent accepts that the Applicant had been issued the certificate of
citizenship prior to his conviction, but argues that it was of no effect at the
time of his conviction because he had not met the requirements of the Act when
he received it. The certificate of citizenship was issued on September 17,
2013; at that point, the Applicant had declared, wrongly, that he was not
barred from taking the oath. In reality, he was barred because of the June 13, 2012 charge. As a result, the
Applicant was never a citizen in the first place and the Officer's conclusion
-- that he was a permanent resident and thus could be subject to an
inadmissibility finding -- was entirely reasonable.
22 I
agree with the Respondent that the Officer did not err in issuing the Report.
The language of paragraph 22(1)(b) of the Citizenship
Act is clear that a person shall not be granted
citizenship or take the oath of citizenship if charged with an indictable
offence:
·
22 (1) Despite anything in this
Act, a person shall not be granted citizenship under subsection 5(1), (2) or
(4) or 11(1) or take the oath of citizenship
while the person is
charged with, on trial for or subject to or a party to an appeal relating to an
offence under subsection 29(2) or (3) or an indictable offence under any Act of
Parliament, other than an offence that is designated as a contravention under
the Contraventions Act;
23 Furthermore,
subsection 12(3) of the Citizenship Act states that:
·
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.
24 In
other words, if a certificate is issued but the recipient has not complied with
the requirements of the Citizenship Act, then the certificate does not take effect. Therefore, it cannot be
said that the certificate ever conferred any status whatsoever. As noted by
Justice Russell in Afzal v Canada (Citizenship and
Immigration), 2014 FC 1028 at para
25,"[s]ubsection 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".
25 One
such condition precedent, as is plainly described in paragraph 22(1)(b) of the Citizenship Act, is that the recipient of the
certificate not take the oath of citizenship while at the same time be charged
with an indictable offence -- such as sexual assault under section 271 of the
Code. The Applicant was so charged at the time he took the oath of citizenship
and received the certificate of citizenship. He thus had not met one of the
conditions precedents to citizenship. Indeed, the evidence on file from CIC
indicates that it never considered the Applicant to have had citizenship: in
response to inquiries made by the Officer, CIC responded that "with the
information provided, we have searched our records and have found no indication
that this person has been granted or issued a certificate of Canadian
Citizenship or naturalization" (CTR at 018).
26 I
can find no error in the Officer's decision to issue the Report when he did.
The Applicant's certificate of citizenship was of no effect and thus he was a
permanent resident at the time the Report was issued.
27 As
to the wording of the statute, subsection 44(1) of the Act reads as follows:
·
44 (1) An officer who is of the
opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare
a report setting out the relevant facts, which report shall be transmitted to
the Minister.
·
(Emphasis added)
28 The
Applicant, who was only a permanent resident at the time of the Report, met
this criterion due to paragraph 36(1)(a) of the Act, the relevant parts of
which are underlined below:
·
36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious
criminality for
having been convicted
in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;
29 According
to the Applicant, the above provisions require that an officer look only at
permanent resident or foreign national's status at the exact moment in time
when the conviction occurs. I disagree and do not find that a plain reading of
the statute means anything other than that which the Officer, Delegate, and Member
interpreted it to mean -- that he was a permanent resident and not a citizen at
the time each of their decisions were taken.
30 The
Applicant argues that had status during about six weeks in the fall of 2013 and
one cannot retroactively take that status away. Again, I disagree. As already
explained above, in light of the relevant provisions of the Citizenship Act then in force, the Applicant
never obtained status even though he obtained a certificate. That certificate
was obtained through misrepresentation. Even if the misrepresentation was
innocent as the Applicant claims and he misunderstood the two forms in which he
attested to having no outstanding criminal charges (which he clearly knew
about, including adjourning court when it conflicted with his citizenship
ceremony), such a misunderstanding does not confer status upon him. As
discussed above, the certificate issued to him never took effect because he
never complied with the requirements of the Act respecting the oath. And even
if I am wrong and he had status for those six weeks, I do not agree that one
can only look at his status at the moment the conviction occurred. This does
not accord with either a plain or contextual reading of the statute and the
Applicant could not point to any precedent supporting his interpretation of the
legislation.
Did the Officer and the
Delegate provide adequate reasons?
31 The
Applicant argues that the Officer and the Delegate (who adopted and relied on
the Officer's reasons as expressed in the Report and the Officer's referral
letter) failed to provide adequate reasons for their respective decisions, but
rather only provided factual statements along with a vague and unclear
accompanying letter full of broad conclusive statements lacking evidentiary support.
32 The
Applicant further argues that there was insufficient evidence to conclude that
he was not "trustworthy" as a result of his citizenship history, and
in any event, trustworthiness was not a relevant or appropriate factor for the
Officer and the Delegate to consider. As such, the Applicant submits that their
reasons are inadequate and lack a coherent and proper analysis of the
Applicant's circumstances.
33 I
find, to the contrary, that the Report provided more than adequate reasons. The
Officer laid out the factual basis for the decision to report: that the
Applicant was not a Canadian citizen and that the Applicant was convicted of
sexual assault, an indictable offence. These facts alone were sufficient to
make the recommendation and referral and served as the foundation for all three
decisions. They were certainly sufficiently clear for the Applicant to address
them at the admissibility hearing. As noted by Justice Zinn in his discussion
on adequacy of reasons in the inadmissibility report context, "reasons are
required, given the importance of the decision to the person being considered
for removal. However, that is not to say that the reasons that are given must
be of the detail required in quasi-judicial or judicial proceedings... the test
is whether they allow the person affected to understand why the decision was
made and allow the reviewing court to assess the validity of the decision"
(Iamkhong v Canada (Public Safety and Emergency
Preparedness), 2008 FC 1349 at paras 31-32 [Iamkhong]; see also Richter
v Canada (Minister of Citizenship and Immigration),
2008 FC 806, at para 18, aff'd 2009 FCA 73 [Richter]).
34 I
also disagree with the Applicant's suggestion that the reasons provided in the
Officer's letter of referral were vague and drew conclusions about the history
of his citizenship application without sufficient evidence. The referral letter
provides a detailed timeline of the Applicant's interactions with both
immigration and law enforcement officials and clearly identifies the evidence
upon which the Officer reaches his decision to report. The Officer's assessment
that the Applicant could not be trusted was based on the fact that he had more
than once failed to disclose the charge of sexual assault when required.
35 Finally,
with respect to the appropriateness of taking "trustworthiness" into
consideration, the case law states that, while exercising a very limited
discretion, both the Officer and the Delegate may consider some other factors (Cha v Canada (Minister of Citizenship and Immigration), 2006 FCA 126 at para 37). In Fabbiano v
Canada (Minister of Citizenship and Immigration), 2014
FC 1219, for example, Justice O'Reilly wrote:
·
[15] The role of the Minister's
delegate is to consider the evidence relevant to admissibility, and to exercise
his or her discretion in the circumstances, which may include H&C factors (Faci v Canada (Minister of Public Safety and Emergency Preparedness), 2011 FC 693, at para 31). The latter are more significant in cases
involving persons, like Mr Fabbiano, who are long-term permanent residents of
Canada. According to departmental guidelines, a delegate should consider the
person's age, the duration of his or her residence in Canada, family
circumstances, conditions in the person's country of origin, the degree of the
person's establishment in Canada, the person's criminal history, and his or her
attitude (see Citizenship and Immigration Canada, "ENF 6 - Review of
reports under A44(1)" at 19.2).
36 In
short, I see nothing inappropriate in the Officer and the Delegate's
consideration of the Applicant's previous history of non-compliance with
immigration authorities. That said, even if it were unreasonable to consider
the Applicant's trustworthiness, I find that the Officer's comment was clearly
superfluous obiter. The
determinative findings in the matter were the Applicant's status as a permanent
resident and his conviction for sexual assault. These findings offered
sufficient grounds for the Report, the Referral, and ultimately the Order.
Did the Officer and the
Delegate err in not giving the Applicant an opportunity to make submissions?
37 The
Applicant argues that he was not permitted to explain the circumstances around
his certificate of citizenship and its revocation or to address any issues of
trustworthiness. Since these were relevant matters for the Officer, he should
have been afforded the opportunity, either orally or in writing, to make
submissions on these points.
38 Individuals
who are subject to section 44 proceedings are owed a duty of procedural
fairness. However, as was noted recently in Huang v
Canada (Public Safety and Emergency Preparedness), 2015
FC 28 at para 84, the case law establishes a relaxed duty of fairness in the
context of subsection 44(1) and 44(2) decisions. This duty confers two rights:
the right to make submissions (either written or oral) and the right to obtain
a copy of the reports (see also Richter at para 18; Finta at
para 35; Iamkhong at 31).
39 Here,
the Applicant was afforded the opportunity to make submissions before the
Report was issued and was given a copy of the Officer's reasons in order to
prepare for the inadmissibility hearing. There is no right to be informed of
the specific factors that the Officer or the Delegate might consider,
especially when the Applicant takes issue with parts of the assessment based on
information he already had (Tran v Canada (Public Safety
and Emergency Preparedness), 2009 FC 1078 at para 19).
Here, the Applicant knew that his certificate of citizenship had been revoked
and knew that this was because he had not provided proper disclosure of his
pending sexual assault trial. In any event, as already pointed out above, the
comments on trustworthiness were superfluous and the equivalent of obiter.
IV. Conclusion
40 In
light of all of the above, this application for judicial review is dismissed.
No questions are certified and no costs are ordered.
JUDGMENT
THIS COURT'S JUDGMENT is that:
This application for
judicial review is dismissed;
No questions are
certified; and
No costs are
ordered.
DINER J.
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