Almuhaidib v. Canada (Citizenship and Immigration)

Almuhaidib v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2019-12-02
Neutral citation
2019 FC 1543
File numbers
T-1981-18
Notes
A correction was made on December 21, 2020.
Reported Decision
Decision Content
Date: 20191202
Docket: T-1981-18
Citation: 2019 FC 1543
[ENGLISH TRANSLATION]
Ottawa, Ontario, December 2, 2019
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
SULAIMAN ALMUHAIDIB
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I. Overview 2
II. Facts 3
III. Decision 11
IV. Parties’ submissions 12
A. Applicant’s submissions 12
B. Respondent’s submissions 16
V. Issues 19
VI. Analysis 20
A. Standard of judicial review 21
B. Interpretation of transitional provisions 24
(1) Overview of relevant legislation and of citizenship application process upon filing and initial processing of citizenship application 25
(2) Overview of principles of statutory interpretation 29
(3) Analysis of transitional provisions 32
a) Analysis of terms used 32
(i) Interpretation of transitional provisions 32
(ii) Meaning of “décidé définitivement” and “finally disposed of” 36
b) Analysis of legislative intent 38
c) Analysis of legal context 42
(4) Application of transitional provisions to applicant 49
C. Reasonableness of declaration of abandonment under subparagraph 13.2(1)(a)(i) of CA 50
D. Certified question 54
VII. Conclusion 56
I.
Overview
[1] The applicant, Sulaiman Almuhaidib, seeks judicial review of the decision of a citizenship officer, dated October 30, 2018, declaring his citizenship application “abandoned” under subparagraph 13.2(1)(a)(i) of the Citizenship Act, RSC 1985, c C-29 [CA], for failing to provide additional information and evidence required by the respondent under section 23.1 of the CA. For the reasons that follow, I find that this application for judicial review must be dismissed.
[2] Becoming a Canadian citizen is a privilege. It is a privilege that is conferred only once a citizenship applicant has taken the oath of citizenship, these 24 words signifying adherence to our constitution and our country. Until that oath is taken before a citizenship judge, an applicant has an obligation to demonstrate the merits of their citizenship application, particularly when a credible doubt arises. This is why if, during the course of a proceeding, a potential contradiction or omission regarding an essential fact is discovered and an applicant is unable to justify it, the Minister retains the power to investigate. Consequently, a citizenship application comes to fruition only after the oath of citizenship has been taken.
[3] In the present case, following the decision of the citizenship judge and the granting of a citizenship certificate to the applicant by a Minister’s delegate, significant omissions and contradictions regarding the citizenship application were noted. Given that the applicant’s citizenship application had not been “finally disposed of” under subsection 31(1) of the Strengthening Canadian Citizenship Act, SC 2014, c 22 [SCCA], since he had not yet taken the oath of citizenship, the Minister asked him for additional information and evidence under section 23.1 of the CA to justify these significant omissions and contradictions. However, despite multiple opportunities to do so, the applicant has not satisfactorily justified these omissions and contradictions. Rather, he decided to explain why he did not think he had to. Consequently, it was reasonable to declare his citizenship application abandoned, in accordance with subparagraph 13.2(1)(a)(i) of the CA. That said, these new powers granted to the Minister should not be used in a way that creates ongoing uncertainty for citizenship applications. In this regard, the conclusion in paragraph 156 of this decision is important to consider.
II. Facts
[4] The applicant is a citizen of the Kingdom of Saudi Arabia and has been a permanent resident of Canada since December 25, 2006.
[5] The applicant began the process of becoming a Canadian citizen on August 12, 2010, by submitting an application for citizenship. In his application, he noted that he had been absent from Canada for a total of only 162 days between December 25, 2006, and August 12, 2010. The applicant also stated that he worked solely as chairman of the Canadian company Almassa Group, located in Montréal. In addition, the applicant included with his application a document listing six stays outside Canada between January 2007 and June 2010, all in Saudi Arabia for personal reasons.
[6] Subsequently, in November 2011, the applicant submitted a Residence Questionnaire in which he again stated that he worked solely as chairman of Almassa Group in Montréal. In addition, he listed eight trips outside Canada between January 2007 and August 2011, again, all of them to Saudi Arabia for personal reasons.
[7] With his Residence Questionnaire, the applicant included a variety of documents, including an affidavit signed on September 18, 2008, which had been given to the Canada Border Services Agency to explain the reasons why he and his family had more than $10,000.00 in their possession upon a return to Canada. However, the content of this affidavit contradicted not only his application for citizenship, but also the Residence Questionnaire. Indeed, in the affidavit, the applicant stated that he had been out of the country from December 19, 2007, to February 13, 2008, to visit Saudi Arabia, Egypt, the United Arab Emirates, Lebanon and Mauritius for personal and business reasons. However, this information directly contradicts what is stated in his Residence Questionnaire and his application since they note instead (1) that he had not visited any country other than Saudi Arabia; (2) that he had only travelled for personal reasons; and (3) that he left Canada from January 9, 2008, to February 13, 2008, and not from December 19, 2007, to February 13, 2008. In addition, copies of passports submitted with the Residence Questionnaire do not include any entry stamps for a country other than Saudi Arabia during this period. These discrepancies between the various documents therefore suggested that there was a possibility that the applicant was using another undeclared passport.
[8] Following the assessment by a citizenship officer, the application was forwarded to a citizenship judge, who decided to approve the applicant’s citizenship application on March 7, 2012. Subsequently, on April 13, 2012, a Minister’s delegate granted a certificate of citizenship under subsection 5(1) of the CA, and the applicant was summoned to take the oath of Canadian citizenship on May 9, 2012.
[9] However, upon arriving at the airport in Montréal from Saudi Arabia on May 7, 2012, for the swearing-in ceremony, the applicant was questioned by an immigration officer under the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. A 44(1) report was produced, which concluded that the applicant had not met his residency obligation as a permanent resident. During this exchange, the applicant stated, among other things, that he travels frequently and that he works for the Canadian company Almassa Group. However, he added that he also sat on the boards of directors of a number of companies in Saudi Arabia and owned a construction company in that country. In view of these statements, a removal order was issued against him.
[10] On the basis of this removal order, the applicant was advised that he would not be allowed to take the oath of Canadian citizenship under paragraph 5(1)(f) of the CA. The applicant therefore appealed the removal order to the Immigration Appeal Division (IAD). The IAD allowed the removal order appeal on June 4, 2015, after the Minister gave his consent. As a result, the removal order was quashed, and the IAD declared that the applicant had not lost his permanent resident status.
[11] Following this IAD decision, the applicant wrote to the respondent to set a new date to take the oath of citizenship. However, between the granting of the citizenship certificate in 2012 and the IAD decision of June 2015, the SCCA received Royal Assent on June 19, 2014. This act amends the CA by attributing several new powers to the Minister and includes in particular transitional provisions subjecting these legislative amendments to all pending applications for citizenship, thus making these new powers retroactive and enforceable against applications for citizenship made before June 19, 2014, provided that they were not “finally disposed of before that day”.
[12] On October 2, 2015, in response to requests made by the applicant in June and September 2015, the respondent informed the applicant that the request to reopen would be examined. This examination again revealed the contradiction between the information contained in the affidavit of September 18, 2008, the citizenship application and the Residence Questionnaire regarding the applicant’s stays outside Canada. It also revealed the recent discovery of a press release from the Saudi company Savola Group, dated May 21, 2008. The press release identified the applicant as chairman of the company and announced a business agreement with the Al Muhaidab group, which had been concluded the previous day in Jeddah. The press release also included a photograph identifying the applicant at the meeting in Jeddah. The Residence Questionnaire and the citizenship application did not mention the Savola Group or a stay in Saudi Arabia on May 20, 2008. These new facts were not known to the citizenship judge or to the Minister’s delegate in 2012.
[13] In light of all this, these contradictions became a matter of concern for the respondent. Indeed, the respondent suspects that there the facts have been misrepresented since the passports submitted by the applicant do not contain any information regarding a stay outside Canada other than in Saudi Arabia, or a stay outside Canada on May 20, 2008.
[14] As a result, the applicant was summoned for an interview on February 16, 2016, to allow him to explain these contradictions. In the notice to appear, he was asked to bring all of his current or expired passports and travel documents in his possession. During the interview, he was asked several questions regarding these inconsistencies. However, the applicant did not answer the officer’s questions, indicating that he preferred to answer the questions in writing. In addition, although he was required to bring all of his passports in his possession, the applicant stated that he did not bring them all. He notably omitted to bring the one containing the stays related to the contradictions which had been observed, explaining that this passport was currently “misplaced”, but that it would be provided later.
[15] The applicant subsequently received a letter from the respondent, dated March 29, 2016, advising him of the existence of a report prepared by a citizenship officer. This report alleges that, under paragraph 22(1)(e.1) of the CA, the applicant had misrepresented material circumstances in his application for citizenship. This report also describes the respondent’s concerns, and the letter invited the applicant to respond to the allegations within thirty (30) days and to submit any evidence to refute those allegations. Subsequently, the applicant was granted an additional thirty (30) days to respond in order to [translation] “communicate with the persons concerned in Saudi Arabia and obtain the translation of certain documents” required. On June 2, 2016, the applicant again requested thirty (30) days, which was denied.
[16] The applicant finally replied to the respondent’s letter on June 29, 2016. In that letter, the applicant explained why the concerns regarding him were wrong, and he provided a supporting affidavit explaining the alleged inconsistencies. In the affidavit, he explained (1) that he was not present at the Savola Group meeting in Jeddah on May 20, 2008, and that the image used by the company came from the company’s archives; and (2) that he wrote the date of January 9, 2008, by mistake in his citizenship application and his Residence Questionnaire instead of December 19, 2007. In addition, the applicant confirmed that he was indeed the chairman of the Saudi company Savola Group, but offered no explanation which could help understand the failure to mention it in his citizenship application or in his Residence Questionnaire. During the hearing before the Court, counsel for the applicant explained that the applicant did not include his role within the Savola Group in his citizenship application or in his Residence Questionnaire because, in his view, chairing a board of directors is not a job. However, it appears that the applicant noted that he was chairman of Almassa Group in Montréal.
[17] Moreover, in the affidavit, the applicant explained that his trips made during that period are not indicated in the passports filed with his application because they are in a passport that he no longer has in his possession. In this regard, the applicant explained that in January 2007, he entered Saudi Arabia on passport No E984440 and decided to replace it because it was old and worn out. He received a new passport (No. G793222) on January 7, 2007, which he declared lost a few days later. He therefore received another passport (No. G794209) on January 13, 2007. But, a few days later, he found the second passport (G793222), which he attached to the third passport (G794209). However, the applicant noted that this third passport was damaged and that, unfortunately, some of the stays omitted by mistake from his citizenship application were in this third passport (G794209). At the very end of his letter, he therefore asked that the decision be reviewed in light of the new information, which made it possible to [translation] “grant his application for citizenship”.
[18] After considering this new information, the respondent informed the applicant on August 9, 2016, that the decision to refuse his citizenship application remained in effect. On August 24, 2016, the applicant filed an application for leave and for judicial review in the Federal Court concerning this refusal. The parties agreed to an out-of-court settlement whereby the respondent agreed to refer the citizenship application to another decision-maker for reconsideration. However, it was stated that this reconsideration was not a guarantee that the application would be accepted.
[19] On August 2, 2017, a new citizenship officer responsible for the file therefore sent the applicant a new request for copies of all his passports in his possession between 2006 and 2010. The new officer also requested all of his entry and exit documents for Saudi Arabia, Egypt, the United Arab Emirates and Lebanon during the same period, all within 30 days. The applicant was granted an additional 60 days to allow him to provide these documents, but was denied a second additional 30 days. In any event, he was still given until December 9, 2017, to respond to the request.
[20] Once again, on December 7, 2017, the applicant filed an application for leave and for judicial review in order to obtain a writ of prohibition declaring the request for additional information and evidence made under section 23.1 of the CA illegal and abusive. With that application for judicial review, the applicant also sought a writ of mandamus requiring that he be summoned to take the oath of citizenship. On June 13, 2018, Justice Shore dismissed that application for judicial review, finding that it was premature to assess the reasonableness of the Minister’s requests under section 23.1 of the CA since it had not yet been decided by the citizenship officer. Justice Shore added that there was “serious doubt about certain erroneous information under paragraph 22(1)(e.1) of the CA, [and therefore] an officer may request additional information”. Justice Shore also stated that “the delay cannot be attributed to the Minister or the officer”, given that the applicant had not provided the required information (see Almuhaidib v Canada (Citizenship and Immigration), 2018 FC 615 at paragraph 7 [Almuhaidib 2018]).
[21] Subsequently, on September 7, 2018, the citizenship officer sent a letter to the applicant asking him again to provide copies of his passports between 2006 and 2010, as well as the entry and exit documents for Saudi Arabia, Egypt, the United Arab Emirates and Lebanon during this period, all within 30 days.
[22] In response, on October 2, 2018, the applicant explained that he considered that his citizenship application had already been the subject of a “final disposition” under the transitional provisions in subsection 31(1) of the SCCA and that, as a result, the respondent did not have the legal authority to request additional information and evidence from him. He therefore asked to be summoned [translation] “to his citizenship ceremony for the presentation of his citizenship certificate”.
[23] On October 30, 2018, the respondent informed the applicant that his citizenship application was considered to have been abandoned under subparagraph 13.2(1)(a)(i) of the CA, because the documents requested on September 7, 2018, had still not been provided and no reason had been put forward for this failure, except to say that the applicant considered the request for documents to have been made without legal authorization. On November 16, 2018, the applicant filed an application for leave and for judicial review of the officer’s decision, which was allowed. This is the decision under review.
III. Decision
[24] The impugned decision concluded that the application had been considered abandoned under subparagraph 13.2(1)(a)(i) of the CA, since the applicant had failed to provide the documents requested under subsection 23.1 of the CA within the prescribed time, without reasonable excuse. The officer divided the reasons for the decision into two parts.
[25] First, the citizenship officer concluded that the new provisions of the CA applied to the applicant’s application, despite the fact that this act was not in force when the applicant submitted his citizenship application in 2010. The officer noted that section 31 of the SCCA provides that sections 13.1 to 14 of the CA apply to applications that were filed before August 1, 2014, provided they have not been finally disposed of before that day. The officer clarified that the provisions of the CA, introduced through the SCCA, including the power to require additional information and evidence under section 23.1 and to declare an application as abandoned under the section 13.2, apply to his citizenship application filed on August 12, 2010.
[26] Second, the officer concluded that the applicant had not provided a reasonable excuse for failing to provide the documents required by the Minister under subsection 23.1 of the CA. She noted that (1) the applicant had received several requests to provide copies of all passports in his possession between 2006 and 2010, as well as entry and exit documents for his trips to Saudi Arabia, Egypt, the United Arab Emirates and Lebanon; (2) the applicant had been granted, at his request and on multiple occasions, additional time to provide the required documents; (3) the applicant did not provide any of those requested documents; and (4) the applicant did not offer a valid explanation for why he was unable to provide the documents. The officer added that those documents were important for the assessment of the citizenship application and, not having received them from the applicant, she had no choice but to consider the application as abandoned.
IV. Parties’ submissions
[27] Let us therefore summarize the main arguments submitted by the parties.
A. Applicant’s submissions
[28] The applicant is of the opinion that the citizenship officer erred in her interpretation of the transitional provisions in section 31 of the SCCA. Consequently, she had no authority to request additional information pursuant to section 23.1 of the CA currently in force. Nor did she have the power to declare the applicant’s citizenship application abandoned under subparagraph 13.2(1)(a)(i) for failing to provide the required additional information and evidence, without reasonable excuse. For these reasons, the applicant asserts that his application for judicial review must be allowed.
[29] The applicant argues that the decision of the citizenship judge dated March 7, 2012, which approved his citizenship application and the granting of the citizenship certificate by a Minister’s delegate on April 13, 2012, under subsection 5(1) of the CA, constitutes a final disposition of his citizenship application under subsection 31(1) of the SCCA. Consequently, since this so-called final disposition was made before the coming into force of paragraph 22(1)(e.1), section 23.1 and sections 13.1 and 13.2 of the CA, the applicant argues that the officer did not have the statutory authority to request additional information and evidence from him under section 23.1 in order to determine whether he was subject to the prohibition in paragraph 22(1)(e.1). According to the applicant, the officer also did not have the legal authority to declare his application abandoned under subparagraph 13.2(1)(a)(i).
[30] Furthermore, the applicant is of the opinion that if the respondent did not agree with the citizenship judge’s decision, he should have appealed the citizenship judge’s decision within 60 days as provided in section 14 of the CA in force in 2012. Since the respondent did not appeal within the required time, the applicant argues that his right to be summoned to take the oath of citizenship crystallized when the Minister’s delegate granted the citizenship certificate, as well as by the effect of quashing his removal order. The applicant therefore contends that the respondent cannot continue to delay his application by asking him for additional information and evidence.
[31] The applicant adds that since the respondent had not availed himself of his right of appeal, the only recourse available to the Minister to refuse the swearing in of the applicant is the exercise of a residual discretion. However, the applicant argues that case law has noted that this residual discretion only applies in limited situations and that the facts of this case do not justify it. In support, the applicant cites Stanizai v Canada (Citizenship and Immigration), 2014 FC 74 at paras 30–42 [Stanizai], where Justice Mactavish noted that the exception to the finality of the decision by a citizenship judge is only applicable when the Minister is informed that the conditions provided for by law have not been met, in particular because of material misrepresentations.
[32] The applicant states that this is not the case here, since the citizenship judge had the affidavit of September 18, 2008, before him and the applicant’s failure to include his role as chairman of Savola Group in his citizenship application was reasonable because chairing a board is not a job. Indeed, the applicant submits that it is unreasonable to conclude that the transitional provisions contemplate this limited exception rather than the general principle of the finality of the citizenship judge’s decision.
[33] In this regard, the applicant argues that an interpretation of the transitional provisions according to the modern and contextual approach required by the Supreme Court of Canada (SCC) in Rizzo & Rizzo Shoes Ltd (Re), [1998] SCR 27 [Rizzo] supports his position.
[34] On this point, the applicant submits that the plain and ordinary meaning of the words used by Parliament in the transitional provisions, in particular the words “finally disposed of”, imply the concept of a decision and not of a prohibition or a legal requirement. The applicant also argues that the phrase “finally disposed of” is consistent with the technical meaning developed by case law with regard to the finality of the citizenship judge’s decision.
[35] In addition, the applicant suggests that the interpretation which makes a citizenship application “finally disposed of” following the decision of the citizenship judge, which is followed by the granting of the citizenship certificate by the Minister’s delegate promotes the principle of consistency of laws. He clarifies that when reading the transitional provisions in the context of subsection 14(6) of the CA, which note that the decision appealed to Federal Court is “final”, it is clear that the interpretation of the transitional provisions proposed by the applicant is more consistent with the act as a whole.
[36] The applicant adds that the interpretation of the transitional provisions he is proposing is more consistent with the scheme of the act, the object of the act, and the intention of Parliament. In support, the applicant cites in particular the summary of the SCCA where Parliament notes its desire to expedite the processing of citizens’ applications and not to further delay those already pending.
[37] Finally, the applicant notes that the transitional provisions must be interpreted restrictively because of the presumption that a law is not retrospective. Citing Tran v Canada (Public Safety and Emergency Preparedness), 2017 SCC 50 at paras 42 and 43, the applicant states that it is presumed that a legislative amendment protects acquired rights. Consequently, the applicant submits that the interpretation to the effect that the decision of the citizenship judge followed by the granting of the citizenship certificate is considered to be a final disposition protects the applicant’s acquired right to take the oath of citizenship.
[38] For these reasons, the applicant concludes that the citizenship officer’s interpretation of the transitional provisions is not reasonable. Consequently, he asks that the Court declare that the applicant has the right to be summoned for “his” oath of citizenship ceremony. As for the declaration sought by the applicant, very few allegations have been submitted on this subject.
B. Respondent’s submissions
[39] The respondent contends that the citizenship officer did not err in her interpretation of the transitional provisions since a citizenship application is only considered to be “finally disposed of” when the last stage of processing is finalized, that is, when the applicant takes an oath of Canadian citizenship.
[40] The respondent submits that the version of the CA that was in force in 2012 clearly stated that the oath of citizenship is the very last step in the processing of an application for citizenship. Subsection 12(3) specifies that “[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”.
[41] Moreover, subsection 19(1) of the Citizenship Regulations, SOR/1993-246 [Regulations] which was in force in 2012, stated that “a person who has been granted citizenship under subsection 5(1) of the Act shall take the oath of citizenship by swearing or solemnly affirming it before a citizenship judge”.
[42] The respondent refers to several decisions which confirm that the oath of citizenship is a mandatory condition for becoming a Canadian citizen. In this regard, the decision of the Ontario Court of Appeal in McAteer v Canada (Attorney General), 2014 ONCA 578 [McAteer] states in the first paragraph that, “[s]ubject to limited discretionary exceptions, s. 12(3) of the Act provides that a certificate of citizenship issued by the Minister of Citizenship and Immigration does not become effective until the oath is taken”.
[43] The respondent suggests that this last step is not a mere formality that it must automatically accord when it grants a certificate of citizenship to an applicant. Thus, even if an applicant is granted the certificate under subsection 5(1) of the CA, he or she continues to bear the burden of demonstrating that he or she meets all the requirements of the CA until the time of taking the oath (Zhao v Canada (Citizenship and Immigration), 2016 FC 207 [Zhao]). For example, the reason the applicant had to appeal the removal order was that his application no longer met the requirements of subsection 5(1).
[44] The respondent also relies on Khalil v Canada (Secretary of State), [1999] 4 FC 661 [Khalil] and Stanizai to demonstrate that the citizenship judge’s decision is not the time when an application is “finally disposed of” under the CA in force in 2012, since the Minister retains residual discretion to reject an application for citizenship, in particular in cases where, as noted in Khalil, “there has been a material misrepresentation, or some reasonable cause to believe that there was”. This discretion is also confirmed in Stanizai at paragraph 32.
[45] The respondent proposes a bilingual interpretation of the transitional provisions to justify them. Although the respondent admits that the oath of citizenship is not a “decision” as such, he argues that the English version of the transitional provisions excludes applications that have been “finally disposed of” from the application of the new provisions of the CA. The English version therefore does not imply a decision, but rather the timing of the final resolution of the application, which supports the interpretation of the citizenship officer.
[46] Finally, the respondent submits that an interpretation of the transitional provisions that is consistent with the SCCA as a whole confirms that the provisions apply only to applications where the oath of citizenship has already taken place. In this regard, section 19 of the SCCA amends paragraph 22(2)(f) of the CA to provide that an applicant cannot receive the oath of citizenship if, “directly or indirectly misrepresents or withholds material circumstances relating to a relevant matter, which induces or could induce an error in the administration of this Act”. Consequently, in the respondent’s view, an interpretation of the transitional provisions which considers the decision of the citizenship judge and the granting of a citizenship certificate by a Minister’s delegate as being a final disposition is not consistent with the other provisions of the SCCA.
[47] In submitting that the transitional provisions apply to the applicant’s application for citizenship, the respondent argues that it was reasonable in the circumstances to declare his application abandoned by the applicant under subparagraph 13.2(1)(a)(i) of the CA for failing to provide the additional information and evidence required by the respondent under section 23.1.
[48] Section 23.1 of the CA gives the Minister the statutory authority to request additional information and evidence to determine whether an applicant meets the requirements of the CA at any time before the oath is taken. In addition, subparagraph 13.2(1)(a)(i) allows the Minister to impose a consequence, namely the declaration of an application as being abandoned, if an applicant does not provide the information required to ensure compliance with the CA’s requirements without reasonable excuse.
[49] In this case, the respondent submits that it has been requesting this additional information and evidence under section 23.1 since at least August 2017. However, the applicant did not provide any of the required information or documents or any excuse for not doing so. Those documents were requested in order to verify the inconsistencies in the citizenship application and the applicant’s Residence Questionnaire, which were submitted in 2010 and 2011 respectively and which indicate that the applicant may have made material misrepresentations in relation to his stays outside Canada, an essential fact which could render the applicant ineligible to become a Canadian citizen. It was therefore reasonable for the citizenship officer to declare the application for citizenship abandoned under subparagraph 13.2(1)(a)(i).
V. Issues
[50] In this case, the Court must answer two questions:
1. Did the citizenship officer err in deciding that an application for citizenship becomes “finally disposed of” under transitional provision 31(1) of the SCCA after the oath of citizenship is taken?
2. Did the officer err in declaring the applicant’s citizenship application abandoned under subparagraph 13.2(1)(a)(i) of the CA?
VI. Analysis
[51] The key to resolving this dispute is the interpretation to be given to the transitional provisions of section 31 of the SCCA, in particular the meaning to be given to the phrases “décidé définitivement” and “finally disposed of”.
[52] This is because the issue at stake is whether the application for citizenship presented in August 2010 and the decisions made later during the process (the decision of the citizenship judge and that of the Minister’s delegate to grant the applicant a certificate of citizenship) are final and binding in nature and, consequently, whether citizenship has been acquired. If this is the case, the new legislative provisions (23.1 and 13.2(1)(a)(i)) applicable to citizenship applications, and which are referred to in subsection 31(1) of the SCCA, did not become enforceable against the applicant until May 28, 2015, and August 1, 2014, respectively. As a result, the citizenship officer would not have had the authority to request additional information under section 23.1, or to declare the citizenship application abandoned under subparagraph 13.2(1)(a)(i).
[53] On the other hand, if the taking of the oath of citizenship was required to obtain citizenship, then the application for citizenship was not decided definitively and, consequently, the new provisions (23.1 and 13.2(1)(a)(i)) would have had the force of law and would have been effective against the applicant.
A. Standard of judicial review
[54] We must first determine the standard of review applicable to (1) the analysis of the citizenship officer’s interpretation of the transitional provisions, and (2) her decision to declare the applicant’s citizenship application as being abandoned under subparagraph 13.2(1)(a)(i). I am of the view that the standard of reasonableness applies to both issues.
[55] As a result, our inquiry must focus on whether the decision subject to judicial review has the requisite justification. We must also look at the appearance and intelligibility of the decision-making process. Finally, we must consider whether the decision belongs to the range of possible, acceptable outcomes (Canada (Attorney General) v Heffel Gallery Limited, 2019 FCA 82 at paras 45–57).
[56] With regard to the analysis of the citizenship officer’s interpretation of the transitional provisions, it is essential to take into account the mandate of Immigration, Refugees and Citizenship Canada (IRCC). That said, it is recognized that the applicable standard of review is that of reasonableness.
[57] On this subject, and for the purposes of interpreting the transitional provisions (section 31 of the SCCA), Justice Gascon wrote the following in Valenzuela v Canada (Citizenship and Immigration), 2016 FC 879 at paras 16–18:
[16] There is no doubt that the Strengthening Canadian Citizenship Act, and the Citizenship Act that it modifies, are among the enabling statutes that CIC is mandated to administer and apply. However, since Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, the Supreme Court of Canada has many times recalled that “when an administrative tribunal interprets or applies its home statute, there is a presumption that the standard of review applicable to its decision is reasonableness” (Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval, 2016 SCC 8, at paragraph 32; B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, at paragraph 25; Wilson v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47, at paragraph 17; ATCO Gas and Pipelines Ltd. v. Alberta (Utilities Commission), 2015 SCC 45, at paragraph 28; Tervita Corp. v. Canada (Commissioner of Competition), 2015 SCC 3, at paragraph 35).
[17] Of course, this presumption is not unchallengeable. It can be overruled and the standard of correctness can be applied, in the presence of one of the factors first set out by the Supreme Court in Dunsmuir v. New Brunswick, 2008 SCC 9 [Dunsmuir], at paragraphs 43–64 and recently reiterated in Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, at paragraphs 46–48. Such is the case when a contextual analysis reveals a clear intent of Parliament not to protect the tribunal’s authority with respect to certain issues; when several courts have concurrent and non-exclusive jurisdiction on a point of law; when an issue raised is a general question of law that is of central importance to the legal system as a whole and outside the area of expertise of the specialized administrative tribunal; or when a constitutional question is at play.
[18] It is clear that none of these scenarios exist here and that the presumption established by Alberta Teachers is therefore not rebutted in this case. The question of interpretation that is raised by Mr. Valenzuela’s application pertains to an Act that is closely linked to CIC’s mandate and it is not among the limited range of questions for which Dunsmuir and its descendants indicate that the standard of correctness should be applied. The applicable standard of review is therefore that of reasonableness. According to this standard, the Court must show deference to CIC’s decision.
[58] I agree with these reasons and conclude that the interpretation of the transitional provisions must be considered in light of the reasonableness standard. Having said that, I would point out that with regard to the analysis of the statutory interpretation of the transitional provisions by the citizenship officer, the standard of reasonableness deserves to be applied more rigorously because of the brevity of the statutory analysis of the citizenship officer and of the case law concerning the rigorous application of the reasonableness standard in an immigration context. I quote from the summary of the case law on this point in Vavilov v Canada (Citizenship and Immigration), 2017 FCA 132, where the Federal Court of Appeal noted at paras 37–39:
[37] On issues of statutory interpretation in the immigration context, the Supreme Court recently has also been applying reasonableness in an exacting way. Not surprisingly, because of the presumption of reasonableness, it is acting under the reasonableness standard of review, but it assesses the administrative decision-maker’s interpretation of a statutory provision closely, in fact sometimes in a manner that appears to be akin to correctness: see, e.g., Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909; B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704; Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431; Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678. In fact, it has been a while since the Supreme Court has afforded a decision-maker in the immigration context much of a margin of appreciation on statutory interpretation issues.
[38] Further rendering the standard of review of less practical import in this case is the fact that we have before us little in the way of the reasoning of the Registrar. On the central statutory interpretation issue before us, the Registrar said nothing.
[39] We can only assume the Registrar relied on an analyst’s report that was provided. But, as we shall see, that report contains only one brief paragraph on the statutory interpretation issue, and a very limited one at that. In such circumstances, it is hard to give much deference to the decision; the concern is that we cannot be sure that the statutory interpretation issue was adequately considered. On some occasions like this, w