Tan v. Canada (Citizenship and Immigration)

Tan v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2024-04-18
Neutral citation
2024 FC 600
File numbers
T-1232-22
Notes
A correction was made April 24th, 2024.
Decision Content
Date: 20240418
Docket: T-1232-22
Citation: 2024 FC 600
Estérel, Quebec, April 18, 2024
PRESENT: Madam Justice St-Louis
BETWEEN:
NAN TAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I. Overview [1] In 2002, the Applicant, Ms. Nan Tan, arrived in Canada as a temporary resident to study. In 2004, she married a Canadian citizen, and in 2005, sponsored by her husband, she was granted Canadian permanent resident status. In 2009, Ms. Tan was granted Canadian citizenship.
[2] Ms. Tan and her Canadian sponsor divorced; Ms. Tan subsequently remarried, and two children were born from that second marriage.
[3] In 2011, the Canada Border Services Agency [CBSA] commenced an investigation into a fraudulent marriage scheme and identified Ms. Tan as having entered into a fraudulent marriage, in 2004. In April 2011, Ms. Tan’s Canadian sponsor, i.e., her first husband, provided a statutory declaration whereby confirming he had been paid to marry Ms. Tan, their marriage was fraudulent, he had no contact with Ms. Tan after the staged wedding, and he had never resided with her.
[4] In 2015, Immigration, Refuges and Citizenship Canada [IRCC] initiated Ms. Tan’s citizenship revocation procedure under the then newly adopted citizenship revocation provisions of the Citizenship Act, RSC 1985, c C-29 [Citizenship Act], as amended by the Strengthening Canadian Citizenship Act, SC 2014, c 22 [Strengthening Canadian Citizenship Act]. In 2015, IRCC thus sent Ms. Tan a Notice of Intent to Revoke Citizenship.
[5] In the written representations she presented to IRCC in response to this notice, Ms. Tan denied any allegations made by her first husband, who was her Canadian sponsor. She stated that their marriage was not a marriage of convenience and that she did not pay him to marry her. Additionally, through her counsel, Ms. Tan submitted inter alia that “… the citizenship revocation regime set out in the Citizenship Act, as amended by Bill C-24, and which came into force on May 28, 2015, is unconstitutional and therefore illegal” (Certified Tribunal Record [CTR] at 464).
[6] The constitutionality of these, then new, citizenship revocation provisions were challenged, and IRCC suspended Ms. Tan’s citizenship revocation procedure pending the Court’s decision on the constitutional challenge.
[7] In May 2017, Madam Justice Jocelyne Gagné (now Associate Chief Justice Gagné) invalidated the impugned provisions, having found that subsections 10(1), 10(3) and 10(4) of the Citizenship Act, as amended by the Strengthening Canadian Citizenship Act violated paragraph 2(e) of the Canadian Bill of Rights, SC 1960, c 44 [Bill of Rights] in a way that could not be avoided by interpretation, as they deprived the applicants of the right to a fair hearing in accordance with the principles of fundamental justice. However, Associate Chief Justice Gagné found the impugned provisions did not violate sections 7 and 12 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 [Charter] (Hassouna v Canada (Citizenship and Immigration), 2017 FC 473 [Hassouna]).
[8] Following the Court’s decision in Hassouna, IRCC cancelled the initial Notice of Intent to Revoke Citizenship sent to Ms. Tan in 2015.
[9] In January 2018, new citizenship revocation provisions came into force under the Act to amend the Citizenship Act and to make consequential amendments to another Act, SC 2017, c. 14 (Bill C-6). These provisions are found at sections 10 to 10.7 of the Citizenship Act, although only section 10 is at play in this proceeding as Ms. Tan elected to have the Minister of Citizenship and Immigration [Minister] decide her case, as detailed below. The pertinent provisions are reproduced in Annex.
[10] In 2018, once the new citizenship revocation provisions of the Citizenship Act were in force, IRCC sent Request for Information letters to Ms. Tan, the latest on April 24, 2018 (CTR at 294). This letter advised Ms. Tan that IRCC had information indicating that she may have obtained Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances. IRCC offered Ms. Tan the opportunity to make written representations, before citizenship revocation proceedings commenced, to ensure all relevant information related to her personal circumstances were considered. On May 24, 2018, Ms. Tan, through her counsel, submitted written representations. She did not raise any constitutional issues regarding the new citizenship revocation provisions.
[11] On October 30, 2019, IRCC sent Ms. Tan a Notification Letter Concerning Your Canadian Citizenship pursuant to subsection 10(3) of the Citizenship Act. It advised Ms. Tan that a new revocation process was being initiated. IRCC summarized the information contained in Ms. Tan’s file which, it asserted, demonstrated that she may have obtained Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances, and outlined the results of the investigation and verification that were conducted. IRCC indicated to Ms. Tan that, on a balance of probabilities, it appeared she may have misrepresented herself during her application for permanent residence by entering into a marriage of convenience in order to be sponsored under the family class so to fraudulently obtain permanent residence status and, ultimately, Canadian citizenship. IRCC noted that Ms. Tan had denied all allegations raised against her in her 2015 written representations and it went on the assess Ms. Tan’s latest written representations. IRCC, on behalf of the Minister, was satisfied that the personal circumstances described did not amount to the type of compelling circumstances that would warrant not commencing citizenship revocation proceedings. IRCC offered Ms. Tan the opportunity to make written representations and to provide documentary evidence.
[12] With the notification letter of October 30, 2019, IRCC attached a blank Request to Have Your Case Decided by the Minister of Immigration, Refugees and Citizenship Canada form to be completed by Ms. Tan, if she so choose, failing which, IRCC indicated, the matter would be referred to the Federal Court for a decision.
[13] On January 24, 2020, Ms. Tan, through her counsel, submitted written representations along with numerous documents in support of her case. Ms. Tan requested that the Minister decide her case, rather than having the matter referred to the Federal Court, and she attached the signed form to this effect. She requested the Minister to hold a hearing so that she could provide oral testimony. She relied on the Court’s decision in Hassouna and on paragraph 2(e) of the Bill of Rights to assert that a hearing was required as credibility was a central issue for both the determination of whether a fraud was committed and in regards to assessing her personal circumstances.
[14] Through her counsel, Ms. Tan submitted that her citizenship should not be revoked considering her personal circumstances, noting that guidance should be drawn from the jurisprudence related to the assessment of humanitarian and compassionate grounds. Counsel outlined that Ms. Tan was, in essence, scammed into the marriage with her Canadian sponsor and that she expressed strong remorse as evidenced by her statement, unsworn, attached to the written representations. Under a heading titled humanitarian and compassionate factors, she outlined that (1) it would be in her children’s best interests for her to retain her Canadian citizenship; (2) she is strongly established in Canada and has community support; (3) losing Canadian citizenship would cripple her ability to support her family; (4) she would become stateless if she lost Canadian citizenship, which would breach sections 7 and 11 of the Charter; and (5) she would face hardship upon return to China. Ms. Tan again submitted a personal statement and documentary evidence. She did not raise any constitutional issue regarding the new citizenship revocation provisions, neither did her counsel.
[15] Ultimately, on May 30, 2022, a senior analyst –IRCC-Case Management Branch, acting as an authorized delegate of the Minister [the Minister’s Delegate], revoked Ms. Tan’s Canadian citizenship under subsection 10(1) of the Citizenship Act, in circumstances described in section 10.2 of the Citizenship Act. The Minister’s Delegate was satisfied, on a balance of probabilities, that Ms. Tan had obtained Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances. The Minister’s Delegate considered Ms. Tan’s personal circumstances, but found they did not warrant special relief in light of all the circumstances of the case.
[16] The Minister’s Delegate’s decision [the Decision] to revoke Ms. Tan’s citizenship is the subject of this application for judicial review.
[17] Ms. Tan served a Notice of Constitutional Question prior to the hearing of this application for judicial review questioning the constitutional validity of sections 10 and 10.1 of the Citizenship Act.
[18] In support of her application for judicial review, Ms. Tan did not submit her own affidavit. She submitted the affidavit of Ms. Lina Zhang, secretary at the Law Office of Matthew Jeffery, who introduced four exhibits.
[19] Before the Court, Ms. Tan argues essentially that (1) the Citizenship Act as amended violates paragraph 2(e) of the Bill of Rights; (2) the Citizenship Act as amended breaches section 7 of the Charter; (3) the Decision is unreasonable; and (4) costs should be awarded in her favour.
[20] Ms. Tan thus asks the Court for a declaration that sections 10 and 10.1 of the Citizenship Act are invalid, ultra vires, and of no force and effect. She also asks the Court for an order quashing the Decision and remitting the matter back for a re-determination by a different decision maker. Ms. Tan submits questions for the Court to certify.
[21] The Respondent essentially submits that (1) Ms. Tan’s arguments pertaining to the lawfulness of the citizenship revocation scheme are premised on a misunderstanding of the statutory regime; (2) the citizenship revocation scheme meets the requirements set out by the Court, the Charter and the Bill of Rights; (3) in particular, the citizenship revocation scheme does not engage section 7 of the Charter; (4) the Decision is reasonable; and (5) no special reasons warranting an award of costs have been raised.
[22] I noted, after having heard the application, that the constitutional issue had not been raised before the Minister’s Delegate nor addressed in the Decision, and that neither party had raised this as part of the application for judicial review. I wrote to the parties, noting the prevailing case law requiring, as a general rule, that an issue to be raised first before the administrative decision maker, and not on judicial review, highlighted Mr. Justice Denis Gascon’s words in Benito v Immigration Consultants of Canada Regulatory Council, 2019 FC 1628 at paragraphs 55 to 57 [Benito], and asked the parties for additional written submissions.
[23] Both parties filed additional written submissions. They disagreed as to whether the issue had been raised before the Minister’s Delegate or not. However, they agreed, between them, that the Minister’s Delegate does not have jurisdiction to decide on the constitutional issue and that, as a result, the general rule outlined by Justice Gascon in Benito did not apply. They relied heavily on Gwala v Canada (Minister of Citizenship and Immigration) (CA), 1999 CanLII 9349 (FCA), [1999] 3 FC 404 [Gwala FCA]; Gwala v Canada (Minister of Citizenship and Immigration) (TD), 1998 CanLII 9069 (FC), [1998] 4 FC 43 [Gwala FC].
[24] Under this application, I must thus consider (1) the constitutional issue, particularly in regards to (a) whether the constitutional issue was raised before the Minister’s Delegate; and if I find it was not, whether it would be appropriate for the Court to consider it on judicial review; and (b) in any event, whether the impugned provisions of the Citizenship Act are contrary to section 7 of the Charter and to paragraph 2(e) of the Bill of Rights; (2) alternatively, whether the decision has been shown to be unreasonable under the applicable standard of review; and (3) whether costs should be awarded.
[25] For the reasons that follow, I will dismiss Ms. Tan’s application for judicial review.
[26] First, I am satisfied that the constitutional issue currently before this Court was not raised before the Minister’s Delegate. Second, according to the general rule stated by the Supreme Court of Canada in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 [Alberta Teachers] and most recently confirmed again by the Federal Court of Appeal in Goodman v Canada (Public Safety and Emergency preparedness), 2022 FCA 21 [Goodman], I find the constitutional issue should have been first raised before the Minister’s Delegate and that it would be inappropriate for the Court to consider the constitutional issue on judicial review. Third, in any event, I find that section 10 of the Citizenship Act, which is the only one at play in this proceeding, does not breach paragraph 2(e) of the Bill of Rights or section 7 of the Charter. Fourth, Ms. Tan has not shown the Decision is unreasonable. Finally, no special reasons warrant the award of costs and none will be awarded.
II. Issues [27] Before the Court, Ms. Tan raises the following questions:
What is the standard of review?
Does the Citizenship Act, as amended, violate paragraph 2(e) of the Bill of Rights?
Does the Citizenship Act, as amended, breach section 7 of the Charter?
Is the Decision unreasonable?
Should costs be awarded to Ms. Tan?
[28] I will reformulate these issues to consider first the constitutional issue, second whether the Decision has been shown to be unreasonable, and third whether costs should be awarded.
III. The Constitutional Issue [29] In regards to the constitutional issue, I will examine (A) whether the issue was raised before the Minister’s Delegate, and if not, whether it is appropriate for the Court to consider it on judicial review (Alberta Teachers); and (B) in any event, whether section 10 of the Citizenship Act breaches paragraph 2(e) of the Bill of Rights or section 7 of the Charter.
A. Preliminary issue; was the constitutional issue raised before the Minister’s Delegate? If not, it is appropriate for the Court to consider it on judicial review? [30] As noted by my colleague, Mr. Justice Denis Gascon in Benito at paragraph 55:
[55] … the general rule is that new issues, which could have been raised before the administrative decision-maker, should not be considered on judicial review (Alberta Teachers at paras 22-26; Forest Ethics at paras 37-47; Watto 2 at para 10). This is notably the case for Charter issues and constitutional issues (Forest Ethics at paras 37, 46).
[31] Ms. Tan asserts first that the constitutional arguments were before the Minister’s Delegate as (1) she had raised the Charter and related issues in her 2015 written representations; (2) the Minister’s Delegate took into consideration the 2015 representations in the Decision; and (3) in her January 2020 written representations, Ms. Tan referred to the Bill of Rights when requesting a hearing and to the Charter when discussing she would be rendered stateless.
[32] Ms. Tan adds that the Court should exercise its discretion to decide the constitutional issue. She stresses that the decision in Benito, and the other decisions cited by Justice Gascon, are all distinguishable; she suggests the Court looks to Hassouna for guidance.
[33] The Respondent first asserts that the constitutional arguments raised in this application were not raised before the Minister’s Delegate.
[34] The Respondent submits that the general rule outlined by Justice Gascon in Benito suffers an exception and, essentially, that it does not apply when the decision maker is not competent to adjudicate the constitutional issue. The Respondent relies on Gwala FCA and Gwala FC; Raman v Canada (Minister of Citizenship and Immigration) (CA), 1999 CanLII 8287 (FCA), [1999] 4 FC 140 at para 14; Charalampis v Canada (Citizenship and Immigration), 2009 FC 1002 at para 41; and Lee v Canada (Minister of Citizenship and Immigration) (FC), 2008 FC 614 at paras 64-65.
[35] The Respondent adds that the constitutional issue in this case could not in fact have been raised before the Minister’s Delegate precisely because the Minister is not a court of competent jurisdiction to consider such an issue. The Respondent relies on the same decisions for this proposition.
[36] Ms. Tan agrees with the Respondent’s proposition in this regard. I disagree with the parties.
[37] First, I am satisfied that the constitutional issue that is before this Court was not raised before the Minister’s Delegate. Ms. Tan did raise a constitutional issue back in 2015, but it pertained to a legislative scheme that was abrogated in 2017. Ms. Tan has not challenged the current Citizenship Act’s revocation provisions in her post-2018 written representations to the Minister’s Delegate. In the Decision, the Minister’s Delegate refers to the 2015 written representations to emphasize Ms. Tan’s response to the allegations levelled against her. The fact that the 2015 written representations are in the record are of no relevance since the legislative provisions challenged at that time have been invalidated. Finally, I am convinced Ms. Tan’s references to the Bill or Rights and to the Charter in her 2020 written representations cannot be construed as a constitutional challenge of the current Citizenship Act’s revocation provisions of the Citizenship Act.
[38] Second, I am satisfied that it would be inappropriate for the Court to consider the constitutional arguments raised for the first time on judicial review.
[39] I note that the decisions relied upon by the Respondent do not precisely relate to the issue I raised, which is whether the Court may, on judicial review, consider an issue that was not raised before the administrative decision maker, as set out by the Supreme Court of Canada in Alberta Teachers.
[40] In Gwala FC, the Court did not discuss this particular issue; it had to determine whether or not it had the jurisdiction, on judicial review – rather than by way of an action – to consider a constitutional issue. In Gwala FC, relying on Tétreault-Gadoury v Canada (Employment and Immigration Commission), 1991 CanLII 12 (SCC), [1991] 2 SCR 22, the Court found it had jurisdiction to entertain a constitutional issue, on judicial review, only if the administrative decision maker held jurisdiction to consider a constitutional issue. If the administrative decision maker did not hold jurisdiction, the constitutional challenge had to proceed by way of action. It is in that context that the Court, in Gwala FC, examined the extent, or limit, of the senior immigration officer’s jurisdiction. This is detailed by Mr. Justice Muldoon in the decision he issued a few months after Gwala FC was issued, i.e., Raza v Canada (Minister of Citizenship and Immigration) (TD), 1998 CanLII 9119 (FC), [1999] 2 FC 185 [Raza]. Ultimately, in Gwala FCA, the Federal Court of Appeal confirmed that the Court, on judicial review, has the jurisdiction to decide a constitutional challenge even if the administrative decision maker does not have jurisdiction to decide questions of law.
[41] I have seen nothing, in the decisions relied upon by the Respondent, that addresses the Court’s discretion to consider an issue raised for the first time on judicial review.
[42] In contrast, in the very first paragraph of its decision in Alberta Teachers, the Supreme Court of Canada noted that the appeal provided the Court with:
[1] … an opportunity … to address the question of how a court may give adequate deference to a tribunal when a party raises an issue before the court on judicial review, which was never raised before the tribunal and where, as a consequence, the tribunal provided no express reasons with respect to the disposition of that issue.
[43] This, I think, better accords with the situation and concerns raised in this proceeding.
[44] In Alberta Teachers, the decision under review was rendered by an adjudicator delegated by the Information and Privacy Commissioner [Commissioner]. The Supreme Court of Canada found that, although the issue had not been raised before the Commissioner or the adjudicator, it had been implicitly decided by both the Commissioner and the adjudicator, and that there was no evidentiary inadequacy or prejudice to the parties. In the present proceeding, the issue was neither presented to, nor decided by the Minister’s Delegate, whether explicitly or implicitly.
[45] In Alberta Teachers, the Supreme Court of Canada stated that the applicant was indeed entitled to seek judicial review, but did not have a right to require the Court to consider the issue raised for the first time on judicial review. At paragraph 22 of its decision, the Supreme Court of Canada states that “[j]ust as a court has discretion to refuse to undertake judicial review where, for example, there is an adequate alternative remedy, it also has a discretion not to consider an issue raised for the first time on judicial review where it would be inappropriate to do so”. The Court adds that generally, its discretion will not be exercised in favour of an applicant on judicial review where the issue could have been, but was not raised before the tribunal. The Supreme Court added, at paragraph 26, that “[m]oreover, raising an issue for the first time on judicial review may unfairly prejudice the opposing party and may deny the court the adequate evidentiary record required to consider the issue”.
[46] I am satisfied that the case law cited by the Respondent does not apply to the issue I raised. In addition, I am not convinced that the conclusions of the Court in Gwala FCA and in Raza are helpful, in any event, to determine whether the Minister’s Delegate, who is not an immigration officer, has jurisdiction to consider the constitutional issue.
[47] I acknowledge the Federal Court of Appeal’s discussion on the administrative tribunal’s powers in Forest Ethics Advocacy Association v Canada (National Energy Board), 2014 FCA 245 [Forest Ethics]. Mr. Justice David Stratas particularly outlined at paragraphs 46 and 47 that:
[46] The Supreme Court has strongly endorsed the need for constitutional issues to be placed first before an administrative decision-maker who can hear them: Okwuobi v. Lester B. Pearson School Board; Casimir v. Quebec (Attorney General); Zorrilla v. Quebec (Attorney General), 2005 SCC 16, [2005] 1 S.C.R. 257 [Okwuobi] at paragraphs 38-40 …
[47] This rule can be relaxed in cases of urgency: Okwuobi, supra at paragraphs 51-53. And a direct challenge in Court to the constitutionality of legislation is possible as long as the challenge is not “circumventing the administrative process” or tantamount to a collateral attack on an administrator’s power to decide the issue (outside the circumstances where prohibition is permitted): Okwuobi, supra at paragraph 54.
[48] I note that the Federal Court of Appeal did not mention Gwala FCA and that, ultimately, Justice Stratas exercised his discretion against entertaining the constitutional issues for the first time on judicial review (Forest Ethics at para 56).
[49] The more recent decision of the Federal Court of Appeal in Goodman is particularly helpful and on point, as it confirms the general rule set out in Alberta Teachers. Mr. Justice Richard Boivin stated quite clearly at paragraph 4 that:
[4] The issues with respect to section 2(e) of the Bill of Rights should not have been considered by the Federal Court as they were barred from judicial review. Indeed, Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61, [2011] 3 S.C.R. 654, counsels us against accepting issues on judicial review that were not raised before the administrative decision-maker. Therefore, the section 2(e) issues had to be raised before the administrative decision-maker (Okwuobi v. Lester B. Pearson School Board; Casimir v. Quebec (Attorney General); Zorrilla v. Quebec (Attorney General), 2005 SCC 16, [2005] 1 S.C.R. 257; Landau v. Canada (Attorney General), 2022 FCA 12, 466 D.L.R. (4th) 550) who is the merits decider under this legislative regime.
[50] I note that Goodman was decided in the context of a constitutional challenge against section 25 of the Immigration and Refugee Protection Act, SC 2001, c 27 whereby the decision maker is the Minister or his delegate, just as it is the case under section 10 of the Citizenship Act. In that context, the Federal Court of Appeal confirmed unequivocally that the constitutional issue should have been raised first before the decision maker.
[51] The Federal Court of Appeal again did not discuss, or mention, Gwala FCA and it did not limit the general rule set out in Alberta Teachers or make it dependent on the administrative decision maker’s, which in Goodman was the Minister or his delegate’s, power to consider the constitutional issue.
[52] I note as well that in Benito and in Watto v Immigration Consultants of Canada Regulatory Council, 2019 FC 1024, our Court was reviewing decisions rendered by the “Immigration Consultants of Canada Regulatory Council”. There is no indication as to whether this council has jurisdiction to address constitutional issues, whether it is a court of competent jurisdiction or any indication that this was taken into consideration. Again, in those cases, our Court did not mention Gwala FCA and it applied the general rule set out in Alberta Teachers as the Federal Court of Appeal did in Goodman.
[53] Likewise in Obazughanmwen v Canada (Public Safety and Emergency Preparedness), 2021 FC 683 at paragraph 61, Mr. Justice Henry Brown expressed concern that the record may be inadequate as the Charter arguments were new issues on judicial review and had not been raised before the CBSA officer or the minister’s delegate.
[54] In light of the circumstances and of the binding decisions of the Supreme Court of Canada and of the Federal Court of Appeal, I find it is not appropriate for this Court to consider the constitutional issue as it was raised for the first time on judicial review.
[55] In case I am wrong, I will nonetheless examine the constitutional arguments raised by Ms. Tan.
B. The Constitutional Arguments (1) Standard of Review [56] Both parties assert that the constitutional issues should be reviewed under the correctness standard (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]). However, and as detailed above, the constitutional issues have not been put to the Minister’s Delegate and have not been addressed in the Decision. Consequently, there is nothing to “review” and no standard can thus apply.
(2) The Citizenship Revocation Provisions of the Citizenship Act [57] In her Notice of Application and in her Memorandum of Facts and Law, Ms. Tan challenges section 10 of the Citizenship Act. In her Notice of Constitutional Question, she confirms her submissions to be that sections 10 and 10.1 of the Citizenship Act are invalid because they are contrary to section 7 of the Charter and to paragraph 2(e) of the Bill of Rights.
[58] Section 10 is titled Revocation by Minister — fraud, false representation, etc. and section 10.1 is titled Revocation for fraud — declaration of Court.
[59] As previously mentioned, Ms. Tan elected to have the final determination made by the Minister or his delegate. There is therefore no evidentiary record on the effect of a decision under section 10.1 of the Citizenship Act. Justice Stratas clearly stressed the importance for the court to have the proper evidentiary record in Canada (Citizenship and Immigration) v Canadian Council for Refugees, 2021 FCA 72 at paras 81-82 (see also Mackay v Manitoba, [1989] 2 SCR 357, 1989 CanLII 26 (SCC) at 361-362). As section 10.1 of the Citizenship Act was not in play in the underlying factual matrix and there is thus no evidentiary record of the effect of its application, the issue of the lawfulness of that section does not arise in this matter. I will therefore decline Ms. Tan’s invitation to consider the validity of section 10.1 and will refer to it only when it is necessary to assess whether the arguments raised against section 10 can succeed.
[60] It is useful to summarize the relevant provisions of the Citizenship Act. The text of these provisions is reproduced in Annex to these reasons.
[61] Under section 10 of the Citizenship Act, the Minister may revoke a person’s citizenship if the Minister is satisfied, on a balance of probabilities, that the person has obtained his or her citizenship by false representation or fraud or by knowingly concealing material circumstances (subsection 10(1) of the Citizenship Act).
[62] Before citizenship may be revoked, the Minister shall provide the person with a written notice that (a) advises the person of his or her right to make written representations; (b) specifies the manner in which the representations must be made; (c) sets out the specific grounds and reasons, including reference to materials, on which the Minister is relying; and (d) advises the person that the case will be referred to the Court unless the person requests that the case be decided by the Minister (subsection 10(3) of the Citizenship Act).
[63] Subsection 10(3.1) of the Citizenship Act provides that the person may:
…
[…]
(a) make written representations with respect to the matters set out in the notice, including any considerations respecting his or her personal circumstances — such as the best interests of a child directly affected — that warrant special relief in light of all the circumstances of the case and whether the decision will render the person stateless; and
a) présenter des observations écrites sur ce dont il est question dans l’avis, notamment toute considération liée à sa situation personnelle — tel l’intérêt supérieur d’un enfant directement touché — justifiant, vu les autres circonstances de l’affaire, la prise de mesures spéciales ainsi que le fait que la décision la rendrait apatride, le cas échéant;
(b) request that the case be decided by the Minister.
b) demander que l’affaire soit tranchée par le ministre.
[64] The Citizenship Act also states that the Minister shall consider any representations received from the person before making a decision (subsection 10(3.2)), and that a hearing may be held if the Minister, on the basis of prescribed factors, is of the opinion that a hearing is required (subsection 10(4) of the Citizenship Act and section 7.2 of the Citizenship Regulations, SOR/93-246 [Citizenship Regulations]).
[65] Subsection 10(4.1) of the Citizenship Act clearly states that the Minister shall refer the case to the Court unless (a) the person has made written representations and either the Minister is satisfied on a balance of probabilities that the person has not obtained his or her citizenship by false representation or fraud or by knowingly concealing material circumstances, or that considerations respecting the person’s personal circumstances warrant special relief in light of all the circumstances of the case; or (b) the person requested the decision to be made by the Minister.
[66] Section 10.1 of the Citizenship Act addresses the default process according to which the Minister must seek, by way of an action, a declaration from the Court that the person has obtained his or her citizenship by false representation or fraud or by knowingly concealing material circumstances. The declaration made by the Court has the effect of revoking a person’s citizenship (subsection 10.1(3) of the Citizenship Act).
[67] As previously outlined, in this case, Ms. Tan elected to have the Minister decide her case. Section 10.1 is therefore not in play, there is no evidentiary record as related to its application.
(3) Argument Related to Equitable Consideration [68] As the Respondent outlines, Ms. Tan’s arguments on the constitutionality of the citizenship revocation scheme are mainly premised on there being a mutually exclusive choice between having personal circumstances considered by the Minister or having the Federal Court be the decision maker on whether or not citizenship was obtained by false representation or fraud or by knowingly concealing material circumstances. However, Ms. Tan’s premise is, in my view, incorrect.
[69] More precisely, in this regard, Ms. Tan asserts that (1) in the case of a determination by the Federal Court, it does not provide for an assessment of what she refers to as humanitarian and compassionate grounds (para 34 of the Applicant’s Memorandum of Fact and Law); (2) the incentive for asking that the Minister decide the case is that the Minister has equitable jurisdiction whereas the Federal Court does not (para 40 of the Applicant’s Memorandum of Fact and Law); (3) where the decision is by the Minister, the Minister has discretion to consider mitigating circumstances / humanitarian and compassionate grounds, but no such discretion is given to the Federal Court, which simply has to establish as a factual matter that there was fraud for revocation to occur (para 42 of the Applicant’s Memorandum of Fact and Law); (4) in the context of a determination by the Federal Court as to whether citizenship should be revoked, the failure of the government to explicitly include such a jurisdiction under the current version of the Citizenship Act renders the Act ultra vires, and the relevant provisions should therefore be struck down by the Court (para 44 of the Applicant’s Memorandum of Fact and Law); (5) the procedure adopted by the Minister is woefully inadequate because it does not meet these requirements - notably the right to consideration on humanitarian and compassionate grounds (para 53 of the Applicant’s Memorandum of Fact and Law).
[70] However, per the clear language of the statute, and contrary to Ms. Tan’s assertions, an assessment as to whether personal circumstances warrant special relief is available in all citizenship revocations, whether decided by the Court or by the Minister. A decision is required, from the Minister, in all cases where a person makes written representations seeking special relief. Notably, subsection 10(4.1) of the Citizenship Act clearly provides that the Minister will defer the case to the Court unless the person has made written representations under paragraph (3.1)(a) and the Minister is satisfied that considerations respecting the person’s personal circumstances warrant special relief in light of all the circumstances of the case.
[71] Hence, it could not be clearer that the Minister is tasked with considering whether personal circumstances presented by the person warrant special relief before deferring the case to the Court, and that the Minister will not defer to the Court if special relief is warranted.
[72] So, a simple reading of the relevant provision confirms that the assessment of whether personal circumstances militate against the revocation of citizenship is available even in the cases where the person has not elected for the Minister to make the revocation decision. If the Minister determines that the personal circumstances warrant special relief, the matter is concluded and the person retains their citizenship. Otherwise, on the person’s election, the matter of whether or not to revoke citizenship is decided by the Minister under subsection 10(1) or by the Court under section 10.1. Ms. Tan’s incorrect premise, repeated throughout her arguments, understandably weakens her constitutional challenge.
(4) The Challenge under Paragraph 2(e) of the Bill of Rights [73] Paragraph 2(e) of the Bill of Rights provides that:
Construction of law
Interprétation de la législation
2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to
2 Toute loi du Canada, à moins qu’une loi du Parlement du Canada ne déclare expressément qu’elle s’appliquera nonobstant la Déclaration canadienne des droits, doit s’interpréter et s’appliquer de manière à ne pas supprimer, restreindre ou enfreindre l’un quelconque des droits ou des libertés reconnus et déclarés aux présentes, ni à en autoriser la suppression, la diminution ou la transgression, et en particulier, nulle loi du Canada ne doit s’interpréter ni s’appliquer comme
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[…]
(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations
e) privant une personne du droit à une audition impartiale de sa cause, selon les principes de justice fondamentale, pour la définition de ses droits et obligations;
[74] In Hassouna, Associate Chief Justice Gagné found the revocation provisions were unlawful as she found the four basic conditions of Canadian National Railway Company v Western Canadian Coal Corporation, 2007 FC 371 [Canadian National Railway Company] at paragraph 22 had been met. These four conditions are:
1. the applicant must be a “person” within the meaning of paragraph 2(e);
2. the arbitration process must constitute a “hearing […] for the determination of [the applicant’s] rights and obligations”;
3. the arbitration process must be found to violate “the principles of fundamental justice”; and
4. the alleged defect in the arbitration process must arise as a result of a “law of Canada” which has not been expressly declared to operate notwithstanding the Canadian Bill of Rights.
[75] Both parties agree that the first, second and fourth conditions set out in Canadian National Railway Company, above, are met. I agree. The first condition is met since Ms. Tan, the Applicant, is a person. The second condition is also met as it was found in Hassouna that the citizenship revocation process constitutes a hearing for the determination of the Applicant’s rights and obligations. I agree with the reasons set out by Associate Chief Justice Gagné’s at paragraphs 72 to 79 of her decision in Hassouna. Finally, the fourth condition is also met as the citizenship revocation regime has as its legal source the Citizenship Act – a federally enacted statute – and does not expressly declare that it operates notwithstanding the Bill of Rights (Hassouna at para 125).
[76] The only remaining issue pertains to the third condition, hence whether or not the process violates the principles of fundamental justice. In regards to this condition, and as Associate Chief Justice Gagné outlined, at paragraph 91 of Hassouna:
[91] In order for the revocation process to be procedurally fair, the Applicants ought to be entitled to: (1) an oral hearing before a Court, or before an independent administrative tribunal, where there is a serious issue of credibility; (2) a fair opportunity to state the case and know the case to be met; and (3) the right to an impartial and independent decision-maker. …
[77] Associate Chief Justice Gagné found that none of these were guaranteed under the Citizenship Act’s 2015 revocation provisions. She also stated that the principles of fundamental justice required a discretionary review of all the ci