Federal Court Decisions

Date: 20161114

Docket: T-482-16

Citation: 2016 FC 1263

Ottawa, Ontario, November 14, 2016

PRESENT:    The Honourable Mr. Justice Martineau

ORDER AND REASONS

[1]               The present motion for stay made by Ms. Nesreen Al Madani [applicant] was argued concurrently with the stay motion presented by Mr. Yazeed Esnan, the applicant’s son, in file T‑484-16: Esnan v Canada (Minister of Immigration, Refugees and Citizenship), 2016 FC 1264.

[2]               For all the reasons that follow, the present motion is dismissed. In addition to the evidence, submissions and case law referred to by the parties, the Court has taken judicial notice of the decision rendered by the Court on November 7, 2016 in British Columbia Civil Liberties Association et al v Minister of Citizenship and Immigration et al, 2016 FC 1223, [2016] FCJ No 1217 [British Columbia Civil Liberties Association], refusing to issue an interlocutory Order staying the operation of subsection 10(1) of the Citizenship Act, RSC 1985, c C-29 as amended [amended Citizenship Act], pending the resolution of the constitutionality and validity of that provision in Monla v Canada (Citizenship and Immigration), Court File T‑1570-15 [Monla Stay Order] and the cases being jointly case managed with it [the Group 2 Revocation Judicial Review Applications].

[3]               The facts leading to the underlining judicial review application – which is included in the Group 2 Revocation Judicial Review Applications – and the actions taken by the Minister of Immigration, Refugees and Citizenship (formerly the Minister of Citizenship and Immigration) [Minister] to revoke the Canadian citizenship of the applicant and to ask the return of the applicant’s Canadian passport are not challenged.

[4]               The applicant was born in Jordan in 1968. She arrived in Canada with her husband, Mr. Nedal Esnan, and their three children. The applicant is of Palestinian descent and at the time of her landing in Toronto, she was holding a Jordanian passport. On September 6, 2000, the applicant and the other declared family members became permanent residents of Canada.

[5]               On January 5, 2004, the applicant signed her application for Canadian citizenship. The relevant residence period for her application was September 6, 2000 (the date she was granted permanent resident status) to January 4, 2004 (the day before she signed her application). She declared that she was absent from Canada for one trip totalling 37 days during the four years immediately preceding the date of her application and that she was present in Canada for 1179 days.

[6]               On January 20, 2005, the applicant and other family members became Canadian citizens.

[7]               After obtaining their citizenship, the applicant, her husband and their family, decided to go to Qatar, and informed Canada Revenue Agency that they would not be residing in Canada from May 1, 2006, providing as a new contact address, a postal box in Doha, Qatar. Be that as it may, on September 3, 2013, the applicant’s husband bought a residence in Bedford, Nova Scotia, where the applicant’s son, Yazeed Esnan and daughter Rayah – who are currently studying at Dalhousie University – are apparently living. That being said, the parents are living abroad with their younger son.

[8]               On October 14, 2011, copies of evidence collected by the Royal Canadian Mounted Police [RCMP] during its investigation against an immigration consultant and his firm were received by Citizenship and Immigration Canada [CIC] and reviewed by analysts. The immigration consultant’s clients would use the consultant’s services to misrepresent their residence in Canada in order to obtain Canadian citizenship. A client folder for the applicant’s husband and his immediate family was found in the office of the immigration consultant’s firm and seized by the RCMP. A blank application for Canadian citizenship for the applicant bearing her signature was found in the seized client folder. The firm did not complete section 12 on the applicant’s application for Canadian citizenship, which requires the name, address and signature of the individual, firm or organization that assisted in the completion of the application.

[9]               Under the former subsection 10(1) of the Citizenship Act, RSC 1985, c C-29 [former Citizenship Act], one’s citizenship could be revoked by order of the Governor in Council where it is was satisfied that citizenship had been obtained “by false representations or fraud or by knowingly concealing material circumstances”. The decision of the Governor in Council was based upon a report from the Minister. The person concerned had the right to request that the matter be referred to the Federal Court to determine whether he or she had obtained Canadian citizenship by false representation or fraud or knowingly concealing material circumstances. On August 28, 2012, a Notice of Intent to Revoke Citizenship [revocation notice] for the applicant’s husband as well as herself and their son, Yazeed Esnan, was issued on behalf of the Minister (we do not know whether the two other children also received a revocation notice).

[10]           The Strengthening Canadian Citizenship Act, SC 2014, c 22, came into force on May 28, 2015 and provides a new revocation of citizenship process. Subsection 10(1) of the amended Citizenship Act currently provides that the Minister may revoke the Canadian citizenship of a person if it was “obtained, retained, renounced or resumed […] by false representation or fraud or by knowingly concealing material circumstances.” It is only when an exceptional circumstance specified in the amended Citizenship Act applies that the Minister is now required to refer the matter to the Federal Court for a declaration. However, before the Minister can revoke the citizenship of the person concerned, he must issue a notice that specifies “the person’s right to make written representations” and “the grounds upon which the Minister is relying to make his or her decision”. A hearing may be held if the Minister is satisfied that it is necessary. On July 31, 2015, a new revocation notice for the applicant was issued on behalf of the Minister.

[11]           On October 2, 2015, written submissions were made by counsel on behalf of the applicant and her husband, together with a letter by counsel asserting that the applicant’s husband was misguided in the Canadian citizenship application process by his immigration consultant who told him that he would supply him with an address and telephone number as he did not have to be in Canada to accumulate the required amount of days for his Canadian citizenship. Furthermore, the applicant’s counsel argued that while the applicant was originally served with a revocation notice under the previous Canadian citizenship revocation model on September 11, 2012 and that she requested that her case be referred to the Federal Court, “rather than referring the case to the Court, the Minister waited three years and then opted for the administrative process as per the actual law. The option chosen by the Minister has aggravated the prejudice done to our client as the delay to secure the Canadian citizenship has been increased to ten years”.

[12]           On February 23, 2016, the delegate of the Minister of Citizenship and Immigration revoked the applicant’s citizenship because it was obtained by false representation or fraud or by knowingly concealing material circumstances [impugned decision].

[13]           The delegate found in this regard:

On her application for Canadian citizenship, Mrs. Al Madani declared her home address to be 303-11 Amin Street, Bedford, Nova Scotia from June 2003 to the date upon which it was filed with CIC. However, a Field Operations Support System (FOSS) search for this address revealed that six (6) individuals unrelated to Mrs. Al Madani declaring to be residing at this address during the same period of time that she declared to be residing there. Mrs. Al Madani declared 301-1160 Bedford HWY, Bedford, Nova Scotia as her mailing address. However, this address is listed as the registered address of CCG. Mrs. Al Madani declared that the home telephone number was 902-832-1911 and that her work telephone number was 902-832-1915. A Google search conducted on July 16, 2012 indicated that these telephone numbers belonged to CCG. As such, the contact information declared by Mrs. Al Madani on her application for Canadian citizenship appears to be that of CCG and not her own. Furthermore, section 12 of Mrs. Al Madani’s application does not identify that CCG assisted her with the completion of her application.

[…]

[…] On May 29, 2015, provisions of the Strengthening Canadian Citizenship Act came into force which introduced a new decision-making model for the revocation of Canadian citizenship. As the Minister had not filed a Statement of Claim in the Federal Court as of May 29, 2015, the transitional provisions in the Citizenship Act provide that the notice Mrs. Al Madani received on September 11, 2012 is cancelled and that the Minister may provide her a notice under subsection 10(3) and proceed with her case under the new Canadian citizenship revocation process, and said notice was signed on July 31, 2015. I note that there is no discretion afforded to the Minister in the aforementioned transitional provisions; if a Federal Court proceeding was not pending prior to the coming into force of the new decision-making model for the revocation of Canadian citizenship, the Notice of Intent to Revoke Citizenship that had previously been served is cancelled by operation of law. The Minister, in this instance, chose to proceed with a new Notice of Intent to Revoke Citizenship under the new Canadian citizenship revocation model, and this Notice of Intent to Revoke Citizenship was signed and sent to Mrs. Al Madani without delay.

It is true that the length of the prohibition against being granted Canadian citizenship or taking the oath of citizenship as a result of revocation of Canadian citizenship has been increased to ten (10) years; however, this was an intentional change made to the Citizenship Act by the Government of Canada and its impact on Mrs. Al Madani is a direct consequence of her misrepresentation on her application for Canadian citizenship. It is unclear how Mrs. Al Madani would suffer prejudice as stated by Mr. Barchichat, as Mrs. Al Madani has failed to demonstrate the prejudice that she would suffer as a result of the revocation of her Canadian citizenship. I note that Mrs. Al Madani would become a permanent resident of Canada should her Canadian citizenship be revoked and she would therefore be permitted to continue to reside in Canada. I also note that to date, she has enjoyed the privileges of Canadian citizenship.

In summary, Mrs. Al Madani’s submissions do not refute the evidence on file that she failed to disclose all of her absences from Canada during her relevant residence period of September 6, 2000 to January 4, 2004 and that she failed to declare receiving assistance from CCG in the completion of her application for Canadian citizenship. As such, the citizenship judge and citizenship officer who reviewed her application did not have accurate information before them when they made their assessments about whether or not Mrs. Al Madani met the residence requirement for a grant of Canadian citizenship as outlined in paragraph 5(1)(c) of the Citizenship Act when her application for Canadian citizenship was approved by the citizenship judge on December 1when her application for Canadian citizenship was approved by the citizenship judge on December 14, 2004 and when Canadian citizenship was granted to her by the citizenship officer on December 15, 2004.

[14]           In the underlying application for leave and judicial review which was served and filed on March 23, 2016, the applicant challenges the legality of the impugned decision on the grounds that subsections 10(3) and (4) of the amended Citizenship Act, as amended by the Strengthening Canadian Citizenship Act, violate section 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, enacted as Schedule B to the Canada Act 1982 (UK) 1982, c 11 [Canadian Charter of Rights and Freedoms]; that the Notice of Intent to Revoke Citizenship, dated July 31, 2015 is null and void because it violates section 2(e) of the Canadian Bill of Rights, SC 1960, c 44, and the transitional provisions in the Strengthening Canadian Citizenship Act; and that the respondent has otherwise abused the process due to the delays that have elapsed.

[15]           It is important to note at this point that two months prior to the serving and filing of the herein application for leave and judicial review of the impugned decision, by Order dated January 19, 2016 [Monla Stay Order], the Court enjoined the Minister from taking any steps or proceedings under the notice to revoke citizenship in eight specific applications for leave and judicial review until they are finally determined. In so doing, Justice Zinn dismissed the Minister’s motions to strike these applications on the ground that they were premature and that the applicants had to avail themselves of the opportunity under the amended Citizenship Act to make submissions to the Minister as to whether any revocation ought to happen: Monla v Canada (Citizenship and Immigration), 2016 FC 44, [2016] FCJ No 58 at paragraphs 57 to 83 [Monla].

[16]           That being said, Justice Zinn was satisfied that the applicants in Monla met the tri-partite test for the issuance of a stay: (1) that an issue that is neither frivolous or vexatious has been raised; (2) that irreparable harm will occur to the applicant in the interim period between the date of the motion and the disposition of the application if the stay is denied; and (3) that the balance of convenience rests with the applicant (Manitoba (Attorney General) v Metropolitan Stores (MTS) Ltd, [1987] 1 SCR 110; Toth v Canada (Minister of Employment and Immigration) (1988), 1988 CanLII 1420 (FCA), 86 NR 302 (FCA); and RJR – MacDonald Inc v Canada, 1994 CanLII 117, [1994] 1 SCR 311).

[17]           Justice Zinn notes in Monla at paragraphs 85 to 88:

[85]      The previous conclusion that the applications are not bereft of any possibility of success is sufficient to establish that at least one serious issue has been raised. These include: whether the transition provisions dictate that the revocation notices are a nullity; whether the notices should be quashed as an abuse of process; and whether the revocation procedure under the Amended Act violates the Charter, the Bill of Rights, and general administrative law principles.

[86]      In all but one of the applications, the Minister commenced revocation proceedings under the Former Act but chose not to refer the matter to the Federal Court for decision. Those applications allege that, in light of the Minister’s failure to proceed with his applications under the Former Act, his new notices are a nullity and further constitute an abuse of process. In the remaining application, T-1696-15 (NADA), the notice is accepted as validly issued according to the terms of the Amended Act but it is asserted that the Minister has engaged in an abuse of process in delaying serving it for more than a decade.

[87]      I agree with the applicants that subjecting them to the process under the Amended Act prior to the determination of the validity of the notices subjects them to a process which may be found to be invalid and unconstitutional. I also agree that there is an air of reality to the allegations that the proceedings constitute an abuse of process. Lastly, I accept that requiring the applicants to participate in a process which requires that they disclose their case by responding to the new notices may well prejudice them if it is later determined that they ought to have been before the Federal Court in an action where the Minister bears the burden of proof. I accept that each of these real possibilities creates the likelihood that the failure to stay the revocation proceedings pending the disposition of the judicial review applications will constitute irreparable harm.

[88]      I am also satisfied that the balance of convenience does not rest with the Minister. He had every opportunity to initiate proceedings many years ago to strip these applicants of their citizenship but chose or failed to do so. He cannot reasonably now say that he and Canada will be prejudiced by the delay that will be caused in granting the stay when he himself has been responsible for years and years of delay in taking steps to advance these proceedings.

[18]           Whereas the Court directed that these application be case managed as a group [Group 2 Revocation Judicial Review Applications], and that it was expected that additional applications for judicial review would be filed, following a case management conference held February 5, 2016, with respect to the Group 2 Revocation Judicial Review Applications, on February 23, 2016, the Court issued an Order that effectively enjoined the Minister from taking any steps to act on any future notices to revoke citizenship provided the affected person brought an application for judicial review of that decision [Case Management Order].

[19]           Paragraph 3 of the Case Management Order provides as follows:

The Minister shall take no steps or proceedings under a notice to revoke Canadian citizenship issued under the Citizenship Act as amended by the Strengthening Canadian Citizenship Act relating to an application for judicial review that is now or in the future included in the Group 2 Revocation Judicial Review Applications, until notice is provided to the applicant and the Common Legal Issues have been litigated on the basis of the Lead Cases have been finally determined.

[20]           The Court has set out three questions that are to be addressed by the Court for the Group 2 Revocation Judicial Review Applications on the basis of the identified eight lead cases, which are to be argued at a three day hearing scheduled to commence in Toronto on November 15, 2016:

(a)                May the Minister issue a new notice of revocation of Canadian citizenship after the coming into force of the Strengthening Canadian Citizenship Act, thereby engaging the new revocation procedure or, by virtue of the transitional provisions of the Strengthening Canadian Citizenship Act, where the Minister had issued a revocation notice under the former Act (and the applicant requested a referral to the Federal Court but no such referral was made by the Minister), is the revocation to be determined in accordance with the provisions of the former Act?

(b)               Are any of subsections 10(1), 10(3), or 10(4) of the Citizenship Act as amended by the Strengthening Canadian Citizenship Act, unconstitutional as violating section 7 of the Canadian Charter of Rights and Freedoms and/or sections 1(a) and 2(e) of the Canadian Bill of Rights?

(c)                Does section 10 of the Citizenship Act as amended by the Strengthening Canadian Citizenship Act, subject an individual to cruel and unusual treatment in violation of section 12 of the Canadian Charter of Rights and Freedoms?

[21]           On March 24, 2016, Justice Zinn who is case managing the Group 2 Revocation Judicial Review Applications, directed that the underlining judicial review application be added to the group.

[22]           Coincidently, the impugned decision revoking the Canadian citizenship of the applicant was made on the same day that the Court made the Case Management Order, which is February 23, 2016. Where an applicant’s citizenship has been revoked prior to the filing of an application to review the revocation decision, the Court in paragraph 4 of the Case Management Order had directed that the Minister may continue the process and require that the applicant return his or her Canadian passport, unless prevented by further Order following a motion by the applicant:

If the Minister has revoked an applicant’s Canadian citizenship under the Citizenship Act as amended by the Strengthening Canadian Citizenship Act, then, subject to any further Order of the Court, the Minister may request the applicant to return his or her Canadian passport.

[23]           Indeed, by letter dated August 25, 2016, the Minister requested the applicant to return her Canadian passport, stating notably that “[i]f no information is received from [the applicant] by September 10, 2016, this letter shall serve as the final notice of the Minister’s decision to revoke the passport”. On October 12, 2016, in the absence of submissions from the applicant, of a request for an extension of time to provide submissions, or a motion in Court to stay the revocation of the passport, a final decision to revoke the passport was made on October 12, 2016.

[24]           In the herein motion made pursuant to section 18.2 of the Federal Courts Act, RSC 1985, c F-7, as amended, the applicant seeks an order of the Court staying any step or proceeding taken by the respondent under the amended Citizenship Act and the Canadian Passport Order, SI/81‑86, as the result of the impugned decision made on February 23, 2016 to revoke the Canadian citizenship of the applicant. The Court heard the submissions of counsel in Montréal, Quebec on November 1, 2016.

[25]           Inasmuch that the present motion for stay asks the Court to order the Minister to stop taking any further steps regarding the revocation of the passport, it is moot. Considering that the applicant’s passport has been revoked, the remedy sought today by the applicant goes far beyond the granting of an interim stay. This Court has no power under section 18.2 of the Federal Courts Act to order the Minister to rescind a final decision or to make a declaration of right. If the applicant now wishes to challenge the legality of the decision made on October 12, 2012 to revoke her passport – either on the constitutional grounds raised in the present application challenging the legality of the decision made on February 23, 2016 to revoke the citizenship of the applicant or/and other grounds such as the failure to give proper notice of the revocation of the passport and/or the deficiency of August 25, 2016 letter (wrong address, etc.) – the applicant must serve and file a distinct application for leave and judicial review.

[26]           Be that as it may, I am not satisfied that the applicant meets all three conditions of the test to obtain a stay or the issuance of an interlocutory injunction.

[27]           Firstly, the constitutional issues raised by the applicant in her notice of application for leave and judicial review – which are neither frivolous nor vexatious – meet the low threshold of a serious issue (see Monla at paragraphs 85 to 87). At the date of the present Order, there has not been any further Order of the Court pursuant to paragraph 4 of the Case Management Order. The present application for leave and judicial review is being held in abeyance pending the final disposition of the Lead Cases on the common legal issues identified by Justice Zinn in the Case Management Order.

[28]           Secondly, I am not satisfied that the applicant would suffer irreparable harm if the stay or the interlocutory injunction sought by the applicant were refused by the Court.

[29]           The applicant wrongly assumes that she cannot enter Canada, and that as a “foreigner” of Palestinian origin, she will need an entry visa. However, in the case at bar, there is no evidence that, on September 6, 2000, the applicant became a Canadian permanent resident “by false representation or fraud or by knowingly concealing material circumstances”.

[30]           Paragraph 46(2)(b) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] provides:

[31]           Section 10.2 of amended Citizenship Act read as follows:

[32]           Since the applicant’s misrepresentations were made in her application for citizenship, the effect of the revocation of her citizenship is that she has become a permanent resident by the operation of the law. This latter status of permanent resident is effective at the date of revocation of her citizenship, that is on February 23, 2016, and not at the date she made her application for citizenship as submitted by the applicant’s counsel. The applicant will therefore be able to return to Canada, respect her residency obligation and be reunited with her children. I fail to see how the applicant’s separation from her children who reside in Canada can constitute “a cruel and inhumane situation”. As a Canadian permanent resident, the applicant is able to ask and obtain a Canadian permanent resident card that will allow her to return to Canada, if she respects her residency obligation, should she travel abroad temporarily. The applicant, like all other Jordanian citizens, will also be able to use a Jordanian passport to travel abroad. Moreover, the inconveniences alleged by the applicant who needs to comply with a residency obligation of 730 days in Canada with respect to every five year period under section 28 of the IRPA in her affidavit do not constitute irreparable harm.

[33]           Thirdly, the balance of convenience is in favour of the Minister. The applicant has chosen, through counsel, to make comprehensive written representations on the grounds of revocation mentioned in the second revocation notice. In addition to the argument of aggravated prejudice caused by the delay, numerous submissions were made on the merit. For example, as part of the applicant’s submissions, the applicant invoked the good faith of her husband and herself, while submitting documents detailing international bank transfers and deposits into various accounts of a Canadian bank. It turned out that the Minister’s delegate did not accept those explanations or found this evidence not conclusive (notably because it was outside the relevant residency period). Moreover, the applicant chose to wait until the impugned decision was made to challenge the constitutionality of section 10 of the amended Citizenship Act and illegality of the new revocation process, and this, despite the fact that in Monla, the Court had already dismissed the respondent’s motions to dismiss the applications seeking a prohibition writ on grounds of prematurity.

[34]           The applicant argues that the Case Management Order of February 23, 2016, is unfair and discriminatory because it establishes a distinction between applications in the nature of a writ of prohibition made upon receipt of a revocation notice and applications in the nature of a writ of certiorari where people have responded to the revocation notice and whose citizenship has subsequently been revoked. The applicant claims that having a stay of proceedings for people who filed a judicial review to challenge the decision to revoke their citizenship will put all applicants at an equal level. However, I agree with the respondent that there is significant difference, from a legal point of view, between individuals who have raised the issues of Monla upon receipt of the revocation notice and those who, like the applicant, have only raised these issues after they filed a judicial review of the decision to revoke their citizenship. Indeed, in cases of individuals who have filed a writ of prohibition to challenge the revocation notice to revoke issued under the new legislation, no decision has yet been rendered by the Minister on the issue of whether they have obtained citizenship through false representations. These individuals asked and obtained a stay from the Court which defers the revocation process until the validity of the new legislative scheme is determined. On the other hand, despite the fact that the issue of delays was raised, the applicant availed herself of the opportunity to provide evidence and submissions to contest the allegations in the revocation notice that she had obtained citizenship by fraud. The Minister’s delegate reviewed the applicant’s submissions and found, on a balance of probabilities, that the applicant’s citizenship has been obtained as a result of significant misrepresentations as to her presence in Canada in the four year period preceding the filing of her application for citizenship.

[35]           Moreover, I agree with the respondent that the applicant is in effect seeking to suspend the operation of the law. Today, the applicant essentially relies on the constitutional arguments made in Monla. In her stay motion, the applicant does not submit any additional argument to show that the Minister’s delegate committed a reviewable error when he found that the applicant had obtained her Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances. When the applicant ceased to be a Canadian citizen she lost the right to hold a Canadian passport. When a person has been advised by the Minister that a passport in their possession is required to be returned to the Minister, the person shall return it without delay. Allowing people to retain the privileges associated with Canadian citizenship when it has been determined that they obtained their citizenship by fraud would seriously under mind the public interest. Indeed, the remedy the applicant is asking for would amount to suspend the law entirely and would negate the general public interest in the continued application of the law. Likewise, on November 7, 2016, the Court refused in British Columbia Civil Liberties to stay the operation of subsection 10(1) of the amended Citizenship Act on an interlocutory basis pending the resolution of the constitutionality and validity of that provision.

ORDER

THIS COURT ORDERS that that the stay motion be dismissed.

"Luc Martineau"

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: