Godinez Ovalle v. Canada (Citizenship and Immigration)

Godinez Ovalle v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2015-07-30
Neutral citation
2015 FC 935
File numbers
T-2186-14
Notes
A correction was made on January 13, 2016
Reported Decision
Decision Content
Date: 20150730
Docket: T-2186-14
Citation: 2015 FC 935
Ottawa, Ontario, July 30, 2015
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
OTTO RAUL GODINEZ OVALLE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I. INTRODUCTION [1] This is an application under s 22.1(1) of the Citizenship Act, RSC 1985, c C-29 for a writ of mandamus pursuant to s 18.1 of the Federal Courts Act, RSC 1985, c F-7. The Applicant seeks to compel the Minister of Citizenship and Immigration [Minister] to process his citizenship application.
II. BACKGROUND [2] The Applicant arrived in Canada with his family in May 2002. They received refugee status in October 2003. The Applicant became a permanent resident in June 2005.
[3] The Applicant applied for Canadian citizenship in April 2012. He attended an interview with a Citizenship and Immigration Canada [CIC] officer in February 2014. He says that he was told that his application was being referred to a citizenship judge to make a final decision.
[4] On March 4, 2014, a CIC officer contacted a Canada Border Services Agency [CBSA] officer to ask if they were interested in the Applicant’s periods of absence from Canada. The CBSA officer indicated that the Applicant’s file was of interest and asked that any documentation be forwarded.
[5] A record was added to the Global Case Management System [GCMS] notes on March 12, 2014 which indicates that the “Applicant is a subject of interest with CBSA National Security Unit-EID. Pending more information from CBSA. BF until September 2014.” On the same date, the Applicant’s Field Operations Support System [FOSS] Clearance was updated to indicate “BF – Under Review.”
[6] In June 2014, CBSA invited the Applicant to an interview. The Applicant requested disclosure prior to the interview. CBSA declined to disclose any documents and suggested that the Applicant make an Access to Information and Privacy [ATIP] request. The interview was cancelled.
[7] On October 23, 2014, the Applicant launched the present application for an order of mandamus. On the same day, a CIC officer suspended the processing of the Applicant’s citizenship application pursuant to s 13.1 of the Citizenship Act pending CBSA’s cessation investigation.
[8] In December 2014, CBSA filed an application for cessation of the Applicant’s refugee status. Through this notice, the Applicant also received notice that his citizenship application was suspended.
III. ISSUES [9] The only issue in this proceeding is whether the Applicant has established that the Court should issue an order of mandamus.
IV. STATUTORY PROVISIONS [10] The following provisions of the Citizenship Act are presently in force and applicable in this proceeding:
Grant of citizenship
Attribution de la citoyenneté
5. (1) The Minister shall grant citizenship to any person who
5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois :
(a) makes application for citizenship;
a) en fait la demande;
(b) is eighteen years of age or over;
b) est âgée d’au moins dix-huit ans;
(c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, has, subject to the regulations, no unfulfilled conditions under that Act relating to his or her status as a permanent resident and has, since becoming a permanent resident,
c) est un résident permanent au sens du paragraphe 2(1) de la Loi sur l’immigration et la protection des réfugiés, a, sous réserve des règlements, satisfait à toute condition rattachée à son statut de résident permanent en vertu de cette loi et, après être devenue résident permanent :
(i) been physically present in Canada for at least 1,460 days during the six years immediately before the date of his or her application,
(i) a été effectivement présent au Canada pendant au moins mille quatre cent soixante jours au cours des six ans qui ont précédé la date de sa demande,
(ii) been physically present in Canada for at least 183 days during each of four calendar years that are fully or partially within the six years immediately before the date of his or her application, and
(ii) a été effectivement présent au Canada pendant au moins cent quatre-vingt trois jours par année civile au cours de quatre des années complètement ou partiellement comprises dans les six ans qui ont précédé la date de sa demande,
(iii) met any applicable requirement under the Income Tax Act to file a return of income in respect of four taxation years that are fully or partially within the six years immediately before the date of his or her application;
(iii) a rempli toute exigence applicable prévue par la Loi de l’impôt sur le revenu de présenter une déclaration de revenu pour quatre des années d’imposition complètement ou partiellement comprises dans les six ans qui ont précédé la date de sa demande;
(c.1) intends, if granted citizenship,
c.1) a l’intention, si elle obtient la citoyenneté, selon le cas :
(i) to continue to reside in Canada,
(i) de continuer à résider au Canada,
(ii) to enter into, or continue in, employment outside Canada in or with the Canadian Armed Forces, the federal public administration or the public service of a province, otherwise than as a locally engaged person, or
(ii) d’occuper ou de continuer à occuper un emploi à l’étranger, sans avoir été engagée sur place, au service des Forces armées canadiennes ou de l’administration publique fédérale ou de celle d’une province,
(iii) to reside with his or her spouse or common-law partner or parent, who is a Canadian citizen or permanent resident and is employed outside Canada in or with the Canadian Armed Forces, the federal public administration or the public service of a province, otherwise than as a locally engaged person;
(iii) de résider avec son époux ou conjoint de fait, son père ou sa mère — qui est citoyen ou résident permanent — et est, sans avoir été engagée sur place, au service, à l’étranger, des Forces armées canadiennes ou de l’administration publique fédérale ou de celle d’une province.
(d) if under 65 years of age at the date of his or her application, has an adequate knowledge of one of the official languages of Canada;
d) si elle a moins de 65 ans à la date de sa demande, a une connaissance suffisante de l’une des langues officielles du Canada;
(e) if under 65 years of age at the date of his or her application, demonstrates in one of the official languages of Canada that he or she has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship; and
e) si elle a moins de 65 ans à la date de sa demande, démontre dans l’une des langues officielles du Canada qu’elle a une connaissance suffisante du Canada et des responsabilités et avantages conférés par la citoyenneté;
(f) is not under a removal order and is not the subject of a declaration by the Governor in Council made pursuant to section 20.
f) n’est pas sous le coup d’une mesure de renvoi et n’est pas visée par une déclaration du gouverneur en conseil faite en application de l’article 20.
[…]
[…]
Suspension of processing
Suspension de la procédure d’examen
13.1 The Minister may suspend the processing of an application for as long as is necessary to receive
13.1 Le ministre peut suspendre, pendant la période nécessaire, la procédure d’examen d’une demande :
(a) any information or evidence or the results of any investigation or inquiry for the purpose of ascertaining whether the applicant meets the requirements under this Act relating to the application, whether the applicant should be the subject of an admissibility hearing or a removal order under the Immigration and Refugee Protection Act or whether section 20 or 22 applies with respect to the applicant; and
a) dans l’attente de renseignements ou d’éléments de preuve ou des résultats d’une enquête, afin d’établir si le demandeur remplit, à l’égard de la demande, les conditions prévues sous le régime de la présente loi, si celui-ci devrait faire l’objet d’une enquête dans le cadre de la Loi sur l’immigration et la protection des réfugiés ou d’une mesure de renvoi au titre de cette loi, ou si les articles 20 ou 22 s’appliquent à l’égard de celui-ci;
(b) in the case of an applicant who is a permanent resident and who is the subject of an admissibility hearing under the Immigration and Refugee Protection Act, the determination as to whether a removal order is to be made against the applicant.
b) dans le cas d’un demandeur qui est un résident permanent qui a fait l’objet d’une enquête dans le cadre de la Loi sur l’immigration et la protection des réfugiés, dans l’attente de la décision sur la question de savoir si une mesure de renvoi devrait être prise contre celui-ci.
Consideration by citizenship judge
Examen par un juge de la citoyenneté
14. (1) If an application is accepted for processing and later referred to a citizenship judge because the Minister is not satisfied that the applicant meets the requirements of the following provisions, the citizenship judge shall determine whether the applicant meets those requirements within 60 days after the day on which the application is referred:
14. (1) Lorsqu’une demande est reçue aux fins d’examen puis transmise à un juge de la citoyenneté parce que le ministre n’est pas convaincu que le demandeur remplit les conditions mentionnées dans les dispositions ci-après, le juge de la citoyenneté statue, dans les soixante jours suivant sa saisine, sur la question de savoir si le demandeur les remplit :
(a) subparagraphs 5(1)(c)(i) and (ii), in the case of an application for citizenship under subsection 5(1);
a) les sous-alinéas 5(1)c)(i) et (ii), dans le cas de la demande de citoyenneté présentée au titre du paragraphe 5(1);
[…]
[…]
Notice to Minister
Communication au ministre
(2) Without delay after making a determination under subsection (1) in respect of an application, the citizenship judge shall approve or not approve the application in accordance with his or her determination, notify the Minister accordingly and provide the Minister with the reasons for his or her decision.
(2) Aussitôt après avoir statué sur la demande visée au paragraphe (1), le juge de la citoyenneté approuve ou rejette la demande selon qu’il conclut ou non à la conformité de celle-ci et transmet sa décision motivée au ministre.
Notice to applicant
Communication au demandeur
(3) If a citizenship judge does not approve an application under subsection (2), the citizenship judge shall without delay notify the applicant of his or her decision, of the reasons for it and of the right to apply for judicial review.
(3) En cas de rejet de la demande, le juge de la citoyenneté en informe sans délai le demandeur en lui faisant connaître les motifs de sa décision et l’existence du droit de demander le contrôle judiciaire.
[11] The following provision of the Citizenship Act was repealed on July 31, 2014 but remains at issue in this proceeding:
Suspension of processing of application
Suspension de la procédure d’examen
17. Where a person has made an application under this Act and the Minister is of the opinion that there is insufficient information to ascertain whether that person meets the requirements of this Act and the regulations with respect to the application, the Minister may suspend the processing of the application for the period, not to exceed six months immediately following the day on which the processing is suspended, required by the Minister to obtain the necessary information.
17. S’il estime ne pas avoir tous les renseignements nécessaires pour lui permettre d’établir si le demandeur remplit les conditions prévues par la présente loi et ses règlements, le ministre peut suspendre la procédure d’examen de la demande pendant la période nécessaire — qui ne peut dépasser six mois suivant la date de la suspension — pour obtenir les renseignements qui manquent.
[12] The following provisions of the Citizenship Regulations, SOR/93-246 [Citizenship Regulations] were repealed on July 31, 2014 but remain applicable in this proceeding:
11. (1) On receipt of an application made in accordance with subsection 3(1), 3.1(1), 7(1) or 8(1), the Registrar shall cause to be commenced the inquiries necessary to determine whether the person in respect of whom the application is made meets the requirements of the Act and these Regulations with respect to the application.
11. (1) Sur réception d’une demande visée aux paragraphes 3(1), 3.1(1), 7(1) ou 8(1), le greffier fait entreprendre les enquêtes nécessaires pour déterminer si la personne faisant l’objet de la demande remplit les exigences applicables de la Loi et du présent règlement.
[…]
[…]
(5) After completion of the inquiries commenced under subsection (1), the Registrar shall
(5) Une fois que les enquêtes entreprises en vertu du paragraphe (1) sont terminées, le greffier :
(a) in the case of an application and materials filed in accordance with subsection 3(1), request the citizenship officer to whom the application and materials have been forwarded to refer the application and materials to a citizenship judge for consideration; and
a) dans le cas d’une demande et des documents déposés conformément au paragraphe 3(1), demande à l’agent de la citoyenneté à qui ils ont été transmis d’en saisir le juge de la citoyenneté;
(b) in the case of an application and materials filed under subsection 3.1(1), 7(1) or 8(1), forward the application and materials to a citizenship officer of the citizenship office that the Registrar considers appropriate in the circumstances, and request the citizenship officer to refer the application and materials to a citizenship judge for consideration.
b) dans le cas d’une demande et des documents déposés conformément aux paragraphes 3.1(1), 7(1) ou 8(1), les transmet à l’agent de la citoyenneté du bureau de la citoyenneté qu’il juge compétent en l’espèce et lui demande d’en saisir le juge de la citoyenneté.
V. ARGUMENT A. Applicant [13] The Applicant submits that the Minister has no authority to suspend a citizenship application after all conditions are met. He submits that the Citizenship Act uses mandatory language to require the Minister to grant citizenship if all conditions are met. The Applicant says that he has met all of the statutory requirements and so is entitled to a grant of citizenship.
[14] The test for mandamus was set out in Dragan v Canada (Minister of Citizenship and Immigration), 2003 FCT 211 at para 39:
a) There must be a public legal duty to act.
b) The duty must be owed to the applicant.
c) There is a clear right to the performance of that duty, in particular:
i) The applicant has satisfied all conditions precedent giving rise to the duty;
ii) There was (i) a prior demand for performance of the duty; (ii) a reasonable time to comply with the demand unless refused outright; and (iii) a subsequent refusal which can either be expressed or implied, e.g. unreasonable delay.
d) No other adequate remedy is available to the applicant.
e) The order sought will be of some practical value or effect.
f) The Court in the exercise of discretion finds no equitable bar to the relief sought.
g) On a “balance of convenience” an order in the nature of mandamus should issue.
(1) Duty owed to the Applicant [15] The Citizenship Regulations provide that after a citizenship registrar is satisfied that an applicant has met the requirements of the Citizenship Act and the Citizenship Regulations, he or she is required to forward the application a citizenship judge: Citizenship Regulations, s 11(1), 11(5) [repealed 31 July 2014]. A citizenship judge is then required to render a decision within sixty days of receipt of the application: Citizenship Act, s 14. The Minister can only interfere with this process if the applicant is subject, or should be subject, to an admissibility hearing or removal order: Citizenship Act, s 14(1.1); Stanizai v Canada (Citizenship and Immigration), 2014 FC 74 [Stanizai]; Conille v Canada (Minister of Citizenship and Immigration) (1998), [1999] 2 FC 33 (TD) [Conille].
[16] The Applicant submits that the citizenship registrar had completed the necessary inquiries in February 2014. There was no relevant information missing from the Applicant’s citizenship application, and so the Applicant’s citizenship application was referred to a citizenship judge in February 2014.
[17] The Applicant submits that s 13.1 of the Citizenship Act has no application to his citizenship application. In Stanizai, the Court held that s 13.1 of the Citizenship Act has no application when there is no relevant information missing from a file, and that a cessation proceeding has no relationship to any reason upon which the Minister can suspend a citizenship application. The Minister cannot suspend an application to gather more information. In addition, no further information has become available as a result of CBSA’s investigation.
[18] In addition, the Applicant says that in reality, his application was suspended in February or March 2014, months before s13.1 of the Citizenship Act even came into force. Furthermore, in Murad v Canada (Citizenship and Immigration), 2013 FC 1089 at para 61 [Murad], the Federal Court held that all steps taken after a mandamus application are irrelevant. See also Magalong v Canada (Citizenship and Immigration), 2014 FC 966 [Magalong]. In the present proceeding, this includes the s 13.1 of the Citizenship Act suspension and CBSA’s cessation application.
[19] The Applicant also says that CIC’s decision to suspend his citizenship application was a breach of procedural fairness because he did not receive notice: Roncarelli v Duplessis, [1959] SCR 121 at 140.
(2) Applicant has satisfied the conditions precedent giving rise to the duty [20] Section 5(1) of the Citizenship Act clearly sets out the conditions precedent to a grant of citizenship. It provides that the Minister shall grant citizenship to any person who: makes an application for citizenship; is eighteen years or over; is a permanent resident and has, within the last four years immediately preceding the date of his or her application accumulated at least three years of residence in Canada; has an adequate knowledge of one of the official languages of Canada; has an adequate knowledge of Canada; and, is not under a removal order and is not the subject of a declaration by the Governor in Council made pursuant to s 20 of the Citizenship Act. The Applicant has met all of these requirements.
[21] The only exception to a grant of citizenship after an applicant has met all of the statutory requirements provides that a citizenship judge shall not make a decision if an applicant is the subject of an admissibility hearing: Citizenship Act, s 14(1.1). Section 13.1 of the Citizenship Act provides that the Minister may suspend processing an application where there is insufficient information to ascertain whether an applicant meets the requirements of the Citizenship Act and Citizenship Regulations; however, there is no information missing from the Applicant’s application.
[22] In Murad, the Court implied that the right to citizenship vests at the time citizenship should have been granted and that whatever happens after is irrelevant. The Applicant says that his citizenship should have been granted within sixty days after it was referred to a citizenship judge in February 2014.
(3) There was a prior demand for performance of the duty; reasonable time to comply with the demand; and a subsequent refusal [23] The Applicant requested that CIC perform its duty when he filed his citizenship application. In both September and October 2014, the Applicant’s counsel requested that his application continue to be processed. The Applicant says that given that he met all of the requirements for citizenship in February 2014, and that no information is missing from his file, the Minister has been provided a reasonable amount of time to act in good faith.
(4) No other adequate remedy available and the order is of practical value or effect [24] There is no other remedy available to compel CIC to act.
[25] The Applicant says that he faces irreparable harm if mandamus is not granted. If the cessation application proceeds and is accepted by the Refugee Protection Division of the Immigration and Refugee Protection Board [RPD], the Applicant will lose his permanent resident status and become removable from Canada. He says that he has a strong argument that the cessation application is an abuse of process due to the unconstitutional, unreasonable and prejudicial delay in bringing the application: see e.g. Bermudez v Canada (Citizenship and Immigration), 2015 FC 639 at paras 27-28 [Bermudez]. CBSA has always had access to the information that they have now. Nothing changed to precipitate the cessation application. The application to revoke his permanent resident status is also retroactive and contrary to the rule of law because all of his travel occurred before the Protecting Canada’s Immigration System Act, SC 2012, c 17 came into force.
[26] The Applicant is a long-term permanent resident who is established in Canada, whose family members are all Canadian citizens, and who suffers from chronic health conditions. The Applicant requires care for life, and his doctors are unsure if he could receive the care he requires in Guatemala.
(5) No equitable bar and balance of convenience [27] The Applicant says that he has always complied with the applicable legislation, has always been honest with authorities and has not been responsible for any of the delay in processing his citizenship application. He says that he was not required to attend the CBSA interview for any purpose related to the furtherance of his citizenship application. He says the balance of convenience lies in his favour.
B. Respondent [28] The Respondent agrees with the test as set out by the Applicant for an order of mandamus. See also Kaur v Canada (Minister of Citizenship and Immigration), 2002 FCT 1040 at para 4; Apotex v Canada (Attorney General) (1993), [1994] 1 FC 742 (CA) [Apotex].
(1) Public duty to act and duty owed to the Applicant [29] The Respondent accepts that the Minister owes a duty to the Applicant to process the Applicant’s citizenship application. However, the Applicant’s file has never been referred to a citizenship judge and so the sixty day deadline does not apply. The Respondent says that the Minister has not exceeded the estimated time typically required to process a citizenship application, and the application should be dismissed on this basis alone: Tumarkin v Canada (Citizenship and Immigration), 2014 FC 915 at para 19 [Tumarkin]; Conille, above. The Respondent submits that the Applicant’s cessation proceeding must be concluded prior to the continuation of the citizenship application. The question of the Applicant’s status in Canada is a satisfactory justification for suspending the Applicant’s citizenship application under s 13.1 of the Citizenship Act: Conille, above.
(2) Reasonable time to comply [30] In order for the Court to find that the delay in processing the citizenship application has been unreasonable, the Court must be satisfied that: (1) the delay in question has been longer than the nature of the process requires; (2) the Applicant and his counsel are not responsible for the delay; and, (3) the authority responsible for the delay has not provided a satisfactory justification. See Conille, above.
[31] The Respondent says that there has been no unreasonable delay in processing the Applicant’s citizenship application. CIC estimates that routine applications are typically processed in thirty-six months, while non-routine applications may take longer. The Applicant only applied for citizenship in March 2012. The Minister must be given the necessary time when there is a preliminary indication that a lengthened processing period is required due to the presence of special circumstances: Torres Victoria v Canada (Minister of Citizenship and Immigration), 2006 FC 857 at para 37. In addition, the Applicant’s citizenship application was only suspended in October 2014 and the cessation application was filed in November 2014. This does not constitute unreasonable delay: Wang v Canada (Citizenship and Immigration), 2010 FC 841 at paras 29-30. The Respondent says that the Applicant’s permanent residence status has immediate and direct implications on the Applicant’s citizenship application. Until this is resolved, relevant information remains outstanding. Citizenship officials must be diligent in ensuring they have all of the necessary facts: Tumarkin, above, at para 17.
(3) Conditions precedent are not satisfied [32] The Applicant’s permanent residence status is currently at issue. This is one of the statutory requirements for citizenship and is a satisfactory reason for suspending a citizenship application: Conille, above.
(4) Other adequate remedy available [33] The Respondent submits that the Applicant can appear before the RPD and make submissions in response to the cessation application. Once those proceedings are concluded and the Applicant’s permanent residence status is not in question, the Minister can assess his citizenship application. There is no evidence that the Minister has acted in bad faith or that the Applicant’s citizenship application is suspended indefinitely.
(5) Order has no practical effect [34] The mandamus order that the Applicant seeks would effectively override or ignore the suspension validly in place. Even if the Court orders the Minister to continue processing the Applicant’s citizenship application, his permanent residence status will continue to be at issue until the RPD reaches a determination on the cessation application.
(6) Equitable bar and balance of convenience [35] The Respondent submits that the Applicant was notified of the CBSA’s investigation in June 2014. He was invited to attend an interview in August 2014 and he refused to comply with the request. The Applicant has not been cooperating with CBSA to resolve the matter as expeditiously as possible.
[36] The Respondent distinguishes the Court’s decision in Stanizai, above. In Stanizai, the applicant’s citizenship application had already been approved by a citizenship judge before the Minister initiated cessation proceedings. In the present proceeding, the Applicant’s file has not even been referred to a citizenship judge. In addition, the Applicant’s application is currently suspended under s 13.1 of the Citizenship Act; this section was not in force when Stanizai was decided. Finally, in Stanizai, the application had been outstanding for five years; the Applicant’s citizenship application has not even taken the routine three years.
[37] There is also no abuse of process in the Minister’s decision to begin cessation proceedings. An application for mandamus in relation to a citizenship application is not the forum for the Applicant to challenge the Minister’s decision to begin cessation proceedings. In addition, the Applicant has been provided procedural fairness and was invited to meet with CBSA regarding the cessation application.
[38] The Respondent also distinguishes the Court’s obiter comments in Bermudez, above. First, the Bermudez decision is currently under appeal to the Federal Court of Appeal. Second, Bermudez involved an application to challenge the Minister’s decision to file cessation proceedings. The Applicant has already challenged the Minister’s decision to file cessation proceedings and his application was denied at the leave stage. Third, the Court has twice considered whether a cessation application constitutes an abuse of process and has decided that there was no abuse of process: Li v Canada (Citizenship and Immigration), 2015 FC 459 at paras 26-34; Olvera Romero v Canada (Citizenship and Immigration), 2014 FC 671.
VI. ANALYSIS [39] The Applicant says that his citizenship application has been unlawfully suspended and asks the Court to order CIC to continue processing the application. The Respondent says that the suspension of the Applicant’s citizenship application is a normal and lawful part of the process and that mandamus is not warranted in this case because the normal processing time for non-routine applications has not expired.
[40] I see no dispute between the parties as to the appropriate test for mandamus. As the Federal Court of Appeal noted in Apotex, above, the following criteria must be satisfied before this Court will order a writ of mandamus:
a) There must be a public legal duty to act.
b) The duty must be owed to the applicant.
c) There is a clear right to the performance of that duty, in particular:
i) The applicant has satisfied all conditions precedent giving rise to the duty;
ii) There was (i) a prior demand for performance of the duty; (ii) a reasonable time to comply with the demand unless refused outright; and (iii) a subsequent refusal which can either be expressed or implied, e.g. unreasonable delay.
d) No other adequate remedy is available to the applicant.
e) The order sought will be of some practical value or effect.
f) The Court in the exercise of discretion finds no equitable bar to the relief sought.
g) On a “balance of convenience” an order in the nature of mandamus should issue.
See also Stanizai, above, at para 27.
[41] The Applicant submitted his citizenship application in March 2012, and the record before me suggests that the process was suspended on March 12, 2014. A GCMS entry on that date indicates: “Applicant is a subject of interest with CBSA National Security Unit-EID. Pending more information from CBSA. BF until September 2014” (CTR at 110). In addition, the Applicant’s FOSS Clearance status was changed to “BF-Under Review” on that same date (CTR at 199). The processing of the application ceased.
[42] The Applicant was not informed of this suspension, and it seems as though nothing further was done on the citizenship file between March 12, 2014 and October 23, 2014. In the meantime, CBSA sent a letter to the Applicant, on June 23, 2014, and invited him to an interview. At this point, the Applicant obtained legal counsel.
[43] CBSA refused to provide the Applicant with any documentation relevant to the scheduled interview, which was then postponed while the Applicant made an ATIP request for both CIC and CBSA files. The ATIP response was sparse and did not include CIC’s FOSS notes. However, FOSS notes from CBSA allowed the Applicant to surmise that CIC had suspended his citizenship application pending cessation proceedings.
[44] Relying upon the decision in Stanizai, above, counsel for the Applicant attempted to contact CIC about the status of the citizenship application and to request that processing continue in compliance with the law. CIC refused to communicate with the Applicant or his counsel.
[45] The Applicant filed his mandamus application on October 23, 2014, and, on the same day, CIC Officer Ko filled out a form that purported to suspend processing of the Applicant’s citizenship application under s 13.1 of the new Citizenship Act pending CBSA’s “cessation investigation.” Once again, the Applicant was not informed of the purported s 13.1 suspension or permitted to make any submissions about it.
[46] Section 13.1 of the Citizenship Act came into force on August 1, 2014, but the record shows that the citizenship application was suspended on March 12, 2014 when a GCMS note indicates that the Applicant’s citizenship application was “[p]ending more information from CBSA,” and the Applicant’s FOSS Clearance was changed to “BF – Under Review.” There is nothing to suggest that this earlier suspension related to anything other than possible cessation issues. In fact, the Respondent says that the Minister initiated an investigation into possible cessation proceedings following the Applicant’s CIC interview in February 2014 when the Applicant was asked to explain his returns to Guatemala. This accounts for the de facto suspension in March 2014. The Applicant says, however, that CIC always knew about his visits back to Guatemala and renewed his permanent residence card in 2011 after the final visit.
[47] The Respondent has not been forthcoming with relevant information about these purported suspensions or why the Applicant was not informed about them. In written submissions in this application the Respondent says the Applicant’s citizenship application was formally suspended by Officer Ko in October 2014 pursuant to s 13.1 which came into force on August 1, 2014. But this does not account for the de facto suspension that occurred on March 12, 2014 before s 13.1 came into force.
[48] When I put this issue to the Respondent at the oral hearing before me on July 8, 2015, I was informed that the de facto suspension had been implemented under s 17 of the old Citizenship Act while the Registrar was making inquiries, and that the suspension could have continued under s 17 but was formally implemented under s 13.1 when that provision came into force on August 1, 2014. The GCMS notes indicate that the Applicant’s application was “[p]ending more information from CBSA.” When the s 13.1 suspension was implemented, the GCMS notes explicitly said: “Suspension under Section 13.1(a) of the Citizenship Act pending the outcome of active CBSA investigation.” The CIC officer also filled out a form entitled “Suspension under Section 13.1.” It seems likely then that if the original suspension had been taken pursuant to s 17, then the GCMS notes would have indicated as much. I think the Respondent is speculating as there is no indication on the record that CIC was acting pursuant to s 17 in March 2014. Clearly any such inquiries undertaken after March 12, 2014 and before August 1, 2014 had to relate to the issues of cessation and immigration clearance.
[49] The record shows that the Applicant’s citizenship application was complete by February 14, 2014. The Applicant received FOSS Clearance on May 28, 2013 (CTR at 120). So it is not clear why, then, on March 12, 2014, the Applicant’s FOSS Clearance was changed to “BF – Under Review.” It appears that even the FOSS Clearance was complete on February 14, 2014. A GCMS record dated May 28, 2013 says that the Applicant passed his FOSS Clearance. It was in March 2014 that the FOSS Clearance was updated to say “BF – Under Review” but it appears that in February 2014, it still would have been considered completed since May 2013. The Applicant had met all the requirements of citizenship and he has always been honest with authorities about his visits back to Guatemala which have now, years later, been invoked for cessation purposes. His permanent residence status was renewed by CIC with full knowledge of those visits.
[50] After having his permanent residence status confirmed by CIC with a full knowledge of his visits to Guatemala, CBSA has now decided to seek cessation against the Applicant for those same visits on the basis of re-availment and, in November 2014, the Minister filed an Application for Cessation of Refugee Protection with the RPD. The implications are obvious. If the Minister is successful before the RPD, then the Applicant will lose his permanent residence status and he will become ineligible for citizenship. This notwithstanding that the Applicant arrived in Canada on May 22, 2002 with his family and they were all accepted as genuine refugees. All of the Applicant’s family have been granted citizenship. The Applicant became a permanent resident on June 2, 2005 and since that time he has complied with all of the conditions of permanent residence. At no point has the Applicant tried to conceal the visits he made back to Guatemala and his permanent residence card was renewed without issue in 2011, the date of his last travel to Guatemala. He also has serious health problems.
[51] To now seek to deny the Applicant citizenship on the grounds of re-availment seems inhumane to say the least – and I suspect that is the reason for the lack of notification and denial of disclosure by CIC and CBSA - but is it against the law? That is the core question before me in this mandamus application.
[52] The Applicant’s case is that there was no legal basis for CIC to suspend his citizenship application. He says that whether the suspension took place under s 17 of the old Citizenship Act or s 13.1 of the new Citizenship Act is irrelevant because the Minister has no powers under the former or present version of the Citizenship Act to interfere with the discretion of the Registrar or a citizenship judge to decide a citizenship application unless the Applicant is subject to, or should be subject to, an admissibility hearing or removal order (s 14(1.1)), and the Minister’s duties have been clearly explained by this Court in Stanizai, above, which continues to provide a complete answer on the issue.
[53] The Respondent says that Stanizai does not provide an answer to the present situation and can be distinguished in three ways:
a) In Stanizai, the applicant’s citizenship application had already been approved by a citizenship judge before the Minister initiated cessation proceedings before the RPD, but in the present case the Applicant’s file had not been referred to a citizenship judge;
b) The Applicant’s file is currently suspended under s 13.1 of the Citizenship Act, which provision was not in force at the time of the Stanizai application; and,
c) The Stanizai citizenship application had been outstanding for over five years while in the present case the routine thirty-six months has not yet passed.
[54] There is a significant difference in the fact situation in the present case and what Justice Mactavish was asked to deal with in Stanizai, above. Justice Mactavish sets out the core issues in Stanizai as follows:
[3] For the reasons that follow, I am satisfied that Mr. Stanizai meets all of the statutory requirements for citizenship, that his application for citizenship has been approved by a citizenship judge and that no new information came to the attention of Canadian immigration authorities after the citizenship judge made his decision that would justify this Court exercising its discretion to deny mandamus in this case. Consequently an order of mandamus will issue.
[…]
[29] The question at the heart of this application is whether CIC has the authority to hold off on granting citizenship to an applicant whose application for citizenship has been approved by a citizenship judge, pending the receipt of an immigration clearance.
[30] Mr. Stanizai's application for citizenship was approved by the citizenship judge on February 21, 2012. Subsection 14(2) of the Citizenship Act provides that "forthwith" after approving an application for citizenship, the citizenship judge shall "notify the Minister accordingly and provide the Minister with the reasons therefore".
[31] The jurisprudence of this Court is clear: “unless there is an appeal, the approval or refusal by a citizenship judge, is a final matter as to the applicant’s Canadian citizenship. The Minister has no further function to perform or other remedy other than an appeal”: Canada (Minister of Citizenship and Immigration) v. Mahmoud, 2009 FC 57, 339 F.T.R. 273, at para. 6. See also Canada (Minister of Citizenship and Immigration) v. Abou-Zahra, 2010 FC 1073, [2010] F.C.J. No. 1326; Canada (Minister of Citizenship and Immigration) v. Farooq, 2009 FC 1080, 84 Imm. L.R. (3d) 64; Canada (Minister of Citizenship and Immigration) v. Jeizan, 2010 FC 323, 386 F.T.R. 1; Canada (Minister of Citizenship and Immigration) v. Wong, 2009 FC 1085, 84 Imm. L.R. (3d) 89; Canada (Minister of Citizenship and Immigration) v. Wang, 2009 FC 1290, 360 F.T.R. 1.
[32] There is a limited exception to this principle. The Feder