Date: 20040426
Docket: T-2286-03
OTTAWA, Ontario, this 26th day of April, 2004
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
HUGO HECTOR ROUSSEAU
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] This is an application for a writ of mandamus and declaratory relief compelling the Minister of Citizenship and Immigration (the "Minister") to complete the processing of the applicant's application for Canadian citizenship within 30 days.
FACTS
[2] The applicant, a citizen of Argentina, was granted permanent resident status in Canada on December 14, 1977. He applied for Canadian citizenship on January 26, 1999 in accordance with the Citizenship Act, R.S.C. 1985, c. C-29. His application was received by Citizenship and Immigration Canada ("CIC") on February 10, 1999, over five years ago. The facts relevant to CIC's delay in completing the applicant's citizenship application are summarised below:
- on March 4, 1994, there was an entry in CIC's Field Operating Support System ("FOSS") indicating that the applicant had outstanding fraud charges in Alberta and in the United States;
- on September 3, 1998, there was a FOSS entry indicating that the applicant might not have lived in Canada in the four years preceding his citizenship application;
- on June 14, 2000, the applicant informed CIC that the fraud charges in Alberta were stayed, and the charges in the United States were dropped. He provided the following collaborating documents to CIC:
1) a letter from his criminal defence counsel, Ian Donaldson, dated February 16, 1987, indicating that extradition proceedings against the applicant in the United States had been dropped; and
2) a letter from the Alberta Justice Department, dated April 20, 1995, indicating that charges against the applicant under subsection 380(1)(a) of the Criminal Code had been stayed.
- on July 13, 2000, the applicant produced a Royal Canadian Mounted Police (RCMP) report indicating that he had been convicted on December 4, 1986, in Vancouver, British Columbia of uttering a false statement contrary to subsection 320(1)(c) of the Criminal Code, that two charges of uttering threats were withdrawn in York Region , Ontario, in April 1997, and that a charge of mischief was dismissed in Vancouver, in August 1998;
- on July 21, 2000, the Citizenship Officer handling the applicant's application was advised by the Acting Enforcement Supervisor at CIC's Greater Enforcement Centre (GTEC), Lynn Mansfield, that investigations were still ongoing into the applicant's criminal record and charges in the United States;
- on September 19, 2000, a FOSS entry indicated that the Federal Bureau of Investigation (FBI) had confirmed the applicant to be a wanted fugitive and that there was an outstanding warrant for his arrest;
- on March 21, 2002, the applicant became the subject of a report prepared under subsection 27(1)(a.1)(ii) of the former Immigration Act, R.S.C. 1985, c. I-2 ;
- on March 13, 2003, CIC cleared the applicant for immigration but he remained in the "RCMP requires fingerprints" category, because of possible criminality concerns;
- on March 18, 2003, the applicant sent his fingerprints to CIC;
- on March 21, 2003, CIC sent the applicant's fingerprints to the RCMP for clearance;
- on August 12, 2003, CIC confirmed that the immigration investigation concerning the applicant had been reopened;
- on October 1, 2003, the applicant forwarded his completed RCMP background check to CIC;
- on October 10, 2003, the Citizenship Officer was advised that a report was being prepared under section 44 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA");
- on November 13, 2003, the Citizenship Officer advised the applicant that his RCMP background check was complete, but his immigration clearance was not complete;
- on December 3, 2003, the applicant commenced this application for judicial review;
- on December 10, 2003, the applicant was the subject of a section 44 report of IRPA ("section 44 report") indicating that the applicant is inadmissible on grounds of serious criminality under subsections 36(1)(b) and 36(1)(c) of IRPA;
- on January 20, 2004, CIC advised the applicant of the section 44 report and invited him to make submissions as to why the report should not be referred for an admissibility hearing. The letter sent to the applicant states in part:
[...] in the United States of America, you have been convicted of offences in the State of California, that had they been committed in Canada, they would constitute offences that are found in the Criminal Code of Canada, for which a term of imprisonment punishable by a maximum term of imprisonment of at least 10 years might be imposed.
Further that you are wanted in the United States of America for an offence, that had the offence been committed in Canada, it would have constituted an offence found in the Criminal Code of Canada, for which a maximum term of imprisonment of at least 10 years might be imposed. [...]
RELEVANT LEGISLATION
[3] The relevant sections of the Citizenship Act are subsections 5(1) and 14(1)(1.1) which provide in part:
| Grant of citizenship
5. (1) The Minister shall grant citizenship to any person who
(a) makes application for citizenship;
(b) is eighteen years of age or over;
(c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, ...
[...]
(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.
Consideration by citizenship judge 14. (1) An application for
(a) a grant of citizenship under subsection 5(1),
[...]
shall be considered by a citizenship judge who shall, within sixty days of the day the application was referred to the judge, determine whether or not the person who made the application meets the requirements of this Act and the regulations with respect to the application.
Interruption of proceedings (1.1) Where an applicant is a permanent resident who is the subject of an admissibility hearing under the Immigration and Refugee Protection Act, the citizenship judge may not make a determination under subsection (1) until there has been a final determination whether, for the purposes of that Act, a removal order shall be made against that applicant.
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Attribution de la citoyenneté
5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois :
a) en fait la demande;
b) est âgée d'au moins dix-huit ans;
c) est un résident permanent au sens du paragraphe 2(1) de la Loi sur l'immigration et la protection des réfugiés...
[...]
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.
Examen par un juge de la citoyenneté 14. (1) Dans les soixante jours de sa saisine, le juge de la citoyenneté statue sur la conformité -- avec les dispositions applicables en l'espèce de la présente loi et de ses règlements -- des demandes déposées en vue de :
a) l'attribution de la citoyenneté, au titre du paragraphe 5(1);
[...]
Interruption de la procédure |
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[4] Also relevant are subsections 44(1), 44(2) and section 45 of IRPA which provide in part:
| Report on Inadmissibility
Preparation of report 44. (1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister.
Referral or removal order (2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing,...
[...]
Decision 45. The Immigration Division, at the conclusion of an admissibility hearing, shall make one of the following decisions:
[...]
(d) make the applicable removal order against a foreign national who has not been authorized to enter Canada, ... or a permanent resident, if it is satisfied that the foreign national or the permanent resident is inadmissible.
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Constat de l'interdiction de territoire
Rapport d'interdiction de territoire 44. (1) S'il estime que le résident permanent ou l'étranger qui se trouve au Canada est interdit de territoire, l'agent peut établir un rapport circonstancié, qu'il transmet au ministre.
Suivi (2) S'il estime le rapport bien fondé, le ministre peut déférer l'affaire à la Section de l'immigration pour enquête,... Enquête par la Section de l'immigration
[...]
Décision 45. Après avoir procédé à une enquête, la Section de l'immigration rend telle des décisions suivantes :
[...]
d) prendre la mesure de renvoi applicable contre l'étranger non autorisé à entrer au Canada et dont il n'est pas prouvé qu'il n'est pas interdit de territoire,... ou le résident permanent sur preuve qu'il est interdit de territoire.
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ANALYSIS
[5] The issue is whether the respondent has unreasonably delayed the processing of the applicant's application for citizenship such as to warrant the issuance of a writ of mandamus directing the respondent to complete the processing of the applicant's citizenship application.
[6] I have concluded that the five year delay in completing the background inquiries necessary to determine whether the applicant meets the requirements of the Citizenship Act is unreasonable. However, the respondent has now, probably because of the threat of this Federal Court action, on December 10, 2003 issued a Report under subsection 44(1) of IRPA that the applicant is inadmissible and on January 20, 2004 invited the applicant to make submissions on whether the Report should be referred by the Minister for an "admissibility hearing". At the hearing counsel informed the Court that the submissions for the applicant were delivered to the respondent last month, i.e. March 2004. Accordingly, it appears that this matter is now proceeding with dispatch and that this Court action has already succeeded in accomplishing its purpose.
[7] However, in view of the fact that there had been an earlier Report in 2002, which was not acted upon, it seems reasonable to expect the respondent to either refer the Report to the Immigration Division for an admissibility hearing within two months under subsection 44(2) of IRPA or refer the application for citizenship to a Citizenship Judge under subsection 14(1)(a) of the Citizenship Act within two months. This expectation is necessary to avoid a repetition of the unreasonable delays which have already occurred on this file.
[8] Since the respondent has recently taken action on this file so that the purpose of the mandamus action has been accomplished, no writ of mandamus is appropriate at this time. However, the Court will retain jurisdiction and invite the parties to make further submissions in two months if the Minister has not taken action by that time frame. In two months, the Court will render its order either granting the writ of mandamus or dismissing the action.
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: T-2286-03
STYLE OF CAUSE: HUGO HECTOR ROUSSEAU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, APRIL 20, 2004
REASONS FOR ORDER BY: THE HONOURABLE MR. JUSTICE KELEN
APPEARANCES BY: Mr. Stephen W. Green
For the Applicant
Ms. Kareena Wilding
For the Respondent
SOLICITORS OF RECORD: Mr. Stephen W. Green
GREEN AND SPIEGEL
390 Bay Street, Suite 2800
Toronto, Ontario
M5H 2Y2
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 20040426
Docket: T-2286-03
BETWEEN:
HUGO HECTOR ROUSSEAU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER