Date: 20220202

Docket: T-1154-20

Citation: 2022 FC 123

Ottawa, Ontario, February 2, 2022

PRESENT: The Honourable Madam Justice Elliott

BETWEEN:

ROKO NETANI GUCAKE

Applicant

and

MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

JUDGMENT AND REASONS

I. Overview

[1] The Applicant, Roko Netani Gucake, seeks judicial review of an August 27, 2020 decision made by a senior analyst at Immigration, Refugees and Citizenship Canada (IRCC) as the delegate of the Minister (Delegate) pursuant to subsection 10(5) of the Citizenship Act RSC 1985, c. C-29 (the Act) revoking the Applicant’s Canadian citizenship (the Decision).

[2] The Delegate determined the Applicant had obtained Canadian citizenship by false representation, fraud, or by knowingly concealing material circumstances when they failed to disclose their criminal conviction, residence and studies in Australia in their application for permanent resident status.

[3] The Applicant acknowledged the false representations, but argues that the analyst failed to reasonably consider all of their personal circumstances warranting special relief from citizenship revocation.

[4] For the reasons that follow, this application is dismissed.

II. Relevant Facts

[5] The Applicant was born in Fiji on January 23, 1961.

[6] In October 1977, the Applicant was convicted in Fiji of larceny. In November 1979, the Applicant was convicted of criminal trespass in Fiji.

[7] The Applicant attended the University of Canberra in Australia from 1987 to 1990, completing a Bachelor of Environmental Science. In April 1989, the Applicant committed the offence of sexual intercourse without consent. The Applicant left Australia prior to trial. They travelled to Canada in January 1990, for one year and then returned to Fiji in 1991.

[8] On returning to Fiji, the Applicant met their current wife whom they married on January 15, 1994. The Applicant later adopted their wife’s two children.

[9] In December 1994, Fiji extradited the Applicant to Australia to face the criminal charge. On March 8, 1995, the Applicant was found guilty of the charge and received a prison sentence of two years and two months plus an additional term of nine months which was to expire on November 16, 1997. The Applicant was removed to Fiji on February 18, 1997 at the completion of their term of imprisonment.

[10] On December 8, 1999, when applying for a temporary resident visa to Canada as a visitor, the Applicant declared that they had never committed a criminal offence in any country. In doing so, the Applicant failed to disclose their criminal convictions in Fiji and Australia and attested to not having lived in any other country for more than six months in the past five years despite having been incarcerated in Australia for 26 months.

[11] In February 2000, the Applicant applied for permanent residence in Canada under the assisted relative (other) class. The Applicant failed to disclose the criminal convictions in Fiji and Australia or that they had been ordered to leave Australia. The Applicant also omitted the fact that they had attended university in Australia and had resided there from 1987 to 1990 and from 1994 to 1997. Supporting documents accompanying the application included birth certificates for six children, adoption orders for two children, birth certificates for the Applicant and their wife, as well as their marriage certificate and divorce orders for each of their previous spouses.

[12] In October 2000, the Applicant attended an immigration interview in Australia. At that time, the Applicant disclosed the Fijian convictions, but did not disclose the conviction in Australia for non-consensual sexual intercourse. Nor did the Applicant disclose that they had resided in Australia.

[13] The immigration officer determined at the end of the interview that the Fijian convictions did not affect the Applicant’s admissibility because the Applicant was a juvenile at the time of the first one and the second offence had no Canadian equivalent.

[14] The application for permanent residence was approved on November 23, 2001 and the Applicant, together with their wife and eight children landed in Canada.

[15] In September 2002, another child was born to the Applicant and their wife.

[16] In January 2005, the Applicant applied for Canadian citizenship. It was approved on November 29, 2005, at which point the Applicant took the oath of citizenship and became a Canadian citizen. The Applicant, their wife and the eight children born outside of Canada all became Canadian citizens that day.

[17] On July 19, 2007, Canada Border Services Agency received information from the Australian government and Interpol disclosing the Australian conviction and the Applicant’s record of movement. This information was forwarded to IRCC.

[18] On October 7, 2015, the IRCC issued to the Applicant a Notice of Intent to Revoke Citizenship on the ground of misrepresentation. The Applicant applied for judicial review of the Notice of Intent.

[19] On May 10, 2017, in Hassouna v Canada (Citizenship and Immigration), 2017 FC 473 [Hassouna], Madam Justice Gagné, as she was at the time, found the existing revocation process to be null and void because it violated the Canadian Bill of Rights, SC 1960, c.44.

[20] As a result of the decision in Hassouna, the former Citizenship Act, which had been amended by the Strengthening Canadian Citizenship Act, SC 2014, c 22, [hereafter, the SCCA] was further amended with the passage of Bill C-6.

[21] On June 19, 2017, the Act received Royal Assent. On July 10, 2017, the October 7, 2015 Notice of Intent to Revoke the Applicant’s citizenship was cancelled.

[22] The changes to the citizenship revocation process came into effect on January 24, 2018.

[23] On July 17, 2018, a Request for Information letter was sent to the Applicant. Ultimately, no response was made to the letter. The IRCC initiated revocation procedures by issuing a Notification Letter dated January 2, 2019. The Notification letter outlined the Applicant’s chronology of facts in detail and advised that the Delegate had decided to initiate revocation proceedings.

[24] On March 4, 2019 the Applicant provided extensive written submissions and a personal affidavit with a great number of supporting documents as evidence to support the submissions.

III. Legislation

[25] For ease of reference, the sections of the Act referred to herein are set out in the attached Appendix.

IV. Decision Under Review

[26] As already noted, on August 27, 2020, after reviewing the submissions, the Delegate concluded that they were satisfied, on a balance of probabilities, that the Applicant had obtained Canadian citizenship by knowingly concealing material circumstances about their residence, post-secondary studies, and conviction in Australia.

[27] The deliberate withholding of information regarding the Applicant’s past criminal conviction for sexual assault in order to obtain permanent resident status was found to strike at the integrity of Canada’s immigration program. The Delegate held that the Applicant’s establishment in Canada was insufficient to warrant special relief.

[28] The Applicant’s Canadian citizenship was revoked under subsection 10(1) of the Act which is set out later in these reasons.

[29] The Delegate recognized that the Applicant had lived in Canada for a significant time period, over 20 years, and had worked various jobs, furthered their education, and was involved in the community.

[30] The Delegate acknowledged that the Applicant has a close relationship with their children and grandchildren and that they provide them with financial and emotional support, advice, and encouragement. Little weight was given to the Applicant’s submissions regarding rehabilitation because they had not taken responsibility for their fraudulent acts during the immigration and citizenship process.

[31] The Delegate found that the Applicant’s submissions did not support how revocation of their citizenship would directly cause their children harm because the submissions focused primarily on the possible impact of being separated from their family upon removal. The Delegate held that these submissions were premature as the sole issue of the proceedings was revocation of citizenship. The Delegate stated that the submissions would be more properly addressed at subsequent removal proceedings, should they take place.

[32] The Delegate also found the Applicant’s submissions regarding their medical condition, need for medical treatment, and Fiji’s allegedly inadequate medical care to be similarly premature.

V. Issues and Standard of Review

[33] The parties agree that the issue is whether the Decision is reasonable.

[34] In that respect they also agree, as do I, based on the presumption in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], that the standard of review for citizenship revocation decisions is reasonableness.

[35] Where the parties differ is as to what factors the Delegate should consider in order to arrive at a reasonable Decision when evaluating the Applicant’s submissions.

[36] The Applicant submits that is the major issue in this application. Within that, the Applicant argues that the Delegate did not conduct a proper interpretation of section 10 of the Act when they did not consider the personal circumstances of the Applicant.

[37] The Respondent submits that consideration of the Applicant’s circumstances was premature as all that happened was a loss of citizenship status and citizenship revocation does not automatically trigger removal.

[38] The Respondent also submits that in considering section 10 of the Act, it was reasonable for the Delegate to consider the personal circumstances of the Applicant on the basis set out in the Act.

VI. Analysis

[39] The Applicant did not deny that they had made misrepresentations. Section 10.2 of the Act creates a presumption, for the purposes of subsection 10(1) and 10.1(1), that a person has obtained their citizenship by false representation or fraud or by knowingly concealing material circumstances if the person becomes a permanent resident by one of those means, and because of having acquired the status of a permanent resident, they subsequently obtained citizenship.

[40] In Hassouna, Justice Gagné evaluated the constitutionality of the administrative model for “non-complex” citizenship revocation cases on grounds of fraud or misrepresentation. Justice Gagné found that “consideration of personal interests or humanitarian and compassionate [H&C] factors should form part of the procedural fairness offered to affected individuals by the citizenship revocation process”: paras 2 and 124. In this respect, I note that both the Applicant and their eldest son were applicants in Hassouna.

[41] Following the changes brought about due to Hassouna, the Act provides that the Minister shall refer a case to the court for revocation of citizenship for false representation, fraud, or knowingly concealing material circumstances unless “considerations respecting the person’s personal circumstances warrant special relief in light of all the circumstances of the case”: the Act at subsection 10.1(1) and paragraph 10(4.1)(ii).

[42] The issue here is whether the Delegate erred in finding consideration of potential foreign hardship and the best interests of the Applicant’s children was premature and not to be included in the Decision’s analysis.

[43] For the reasons that follow, I find the Delegate did not err in this regard.

A. Did the Delegate err in finding the consideration of potential foreign hardship and the best interests of the Applicant’s children was premature?

[44] In their written submissions, the Applicant put forward several reasons for the Delegate to apply humanitarian and compassionate considerations to their situation. These were:

• the best interests of the Applicant’s children and grandchildren

• the Applicant’s significant health issues and the lack of access to adequate health care in Fiji

• the Applicant’s establishment and rehabilitation in Canada

[45] In finding that section 7 of the Charter is not engaged at the inadmissibility adjudication stage, the Federal Court of Appeal has noted “there is extensive case law establishing that an inadmissibility finding is distinct from effecting removal and that, as other steps remain in the process, a finding of inadmissibility does not automatically or immediately result in deportation”: Revell v Canada (Citizenship and Immigration), 2019 FCA 262 at para 38.

[46] On ceasing to be a citizen under subsection 10(1) of the Act, the Applicant fell under paragraph 40(1)(d) of the IRPA which states that a foreign national is inadmissible for misrepresentation.

[47] The Applicant is present in Canada and their change of status rendered them a foreign national. In that respect, it has been held that “the most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in Canada”: Hassouna at para 154 citing Canada (Minister of Employment and Immigration) v Chiarelli, [1992] 1 SCR 711 at 733.

[48] As a foreign national whose citizenship has been revoked for misrepresentation, the Applicant does not fall within any of the categories of persons who may appeal to the Immigration Appeal Division, as set out in Division 7 of the IRPA.

[49] The Applicant argues that without a right of appeal and without citizenship or permanent resident status, it is foreseeable that they are likely to depart Canada, whether voluntarily or involuntarily. It is submitted that this is evidenced by paragraph 40(2)(a) of the IRPA which states that a “foreign national continues to be inadmissible for misrepresentation for a period of five years following, […] in the case of a determination in Canada, the date the removal order is enforced” (my emphasis based on the Applicant’s submission).

[50] I cannot agree that a reference in the above-noted section of the IRPA to the words “is enforced” shows that there will definitely be a removal of the Applicant.

[51] The range of remedies available to the Applicant to prevent removal are found not in the Act but rather in the IRPA and the Immigration and Refugee Protection Regulations SOR/2002-227 [IRPR]. For example, the Applicant can apply under section 24 of the IRPA for a Temporary Resident Permit. If removal proceedings are commenced, the Applicant can apply for a stay of removal under section 50. Under section 25(1) they may apply to the Minister on humanitarian and compassionate grounds on the basis set out in section 233 of the IRPR. The Minister may stay a removal order against a foreign national if they are of the opinion that the stay is justified by humanitarian and compassionate considerations under subsection 25(1) or 25.1(1) or by public policy considerations under subsection 25.2(1) of the IRPA. The Applicant may also seek a pre-removal risk assessment under section 112 of the IRPA which may stay the removal order if any of the conditions in section 232 of the IRPR apply.

[52] The Respondent submits that the provisions of the Act should not be conflated with those of the IRPA. The Respondent also reminds the Court that context is important.

[53] I agree.

[54] The Delegate is to consider the Applicant’s personal circumstances with a view to whether or not to grant relief from revocation of citizenship. While the Applicant placed their possible removal before the Delegate for consideration, there is no evidence in the underlying record that deportation proceedings had been initiated or were contemplated.

B. The meaning of “all the circumstances of the case”

[55] The Applicant points out that the phrase “all the circumstances of the case” in paragraph 10(3.1)(a) of the Act was also found in the Immigration Act, RSC 1985, c.I-2, the scope of which was interpreted by the Supreme Court of Canada in Chieu v Canada (Minister of Citizenship and Immigration) 2002 SCC 3 [Chieu].

[56] Chieu considered whether the Immigration Appeal Division was entitled to consider potential foreign hardship when dealing with appeals of removal orders made against permanent residents.

[57] The Supreme Court determined that “having regard to all the circumstances of the case” is to be broadly interpreted as the words appear in a provision establishing a discretionary jurisdiction and there is no detailed guidance as to how the discretion is to be exercised. The Court found that use of the word “all” in the context suggests that the greatest possible number of factors relevant to the removal of a permanent resident from Canada be considered and that it was evident that one such factor is the conditions an individual would face upon removal: Chieu at paras 29 and30.

[58] The Applicant submits that the same logic should apply to the Act.

[59] I disagree that Chieu is applicable in this instance. It does not address any aspect of the Act. It is factually different in that it dealt with a provision of the Immigration Act, and a removal order against a permanent resident. There is no removal order against the Applicant and they are a foreign national, not a permanent resident. The Applicant’s submission, if accepted, would have the effect of conflating the Act and the IRPA.

C. The Delegate’s finding that consideration of removal is premature

[60] In addition to Chieu, the Applicant submitted a transcript of the proceedings of the Standing Senate Committee on Social Affairs, Science and Technology, which took place on March 1st, 2017, to study Bill C-6, which subsequently became the Act.

[61] A review of the transcript indicates that the Minister and staff administering the legislation assured the Senators that consideration of an Applicant’s personal circumstances would include humanitarian and compassionate factors.

[62] The Delegate acknowledged the Applicant made submissions concerning the best interests of their children and grandchildren but found they focussed primarily on the possible impact should the Applicant be removed which the Delegate said was a matter distinct from revocation of the Applicant’s citizenship. The Delegate found that the “submissions regarding the best interests of the children and grandchildren should you be removed from Canada are premature and would be more properly addressed at subsequent removal related proceedings, should such proceedings take place.”

[63] The Delegate’s finding that it was premature to consider the best interests of the children and grandchildren is reasonable. The provision in section 10(3.2) that “the Minister shall consider any representations received pursuant to paragraph (3.1)(a) before making a decision” occurred. The Delegate was required to consider the Applicant’s personal circumstances and they did so. The Applicant simply disagrees with the outcome.

[64] The Delegate acknowledged that the Applicant had health concerns, most notably heart failure. The Delegate said they had read the medical reports and did not dispute the information they contained. After noting the Applicant’s need for treatment and prescription medication as well as Fiji’s “alleged inadequate medical care” the Delegate found that if removal proceedings were initiated the Applicant could apply for medical insurance to purchase their prescription medications and receive medical treatment, and as removal is a separate proceeding, the health issues would be better assessed at the removal proceeding.

[65] The Applicant challenges that statement as being speculative and unrealistic given the financial situation of the Applicant. The finding that those issues would be better assessed at a removal proceeding was the rationale for the finding that the health issues were premature.

[66] In considering the Applicant’s lengthy establishment the Delegate had this to say:

I note that your level of establishment in Canada may not have been attained had you not been granted permanent residence status. It must be kept in mind that you were only able to develop this level of establishment in Canada and to take advantage of the opportunities available to all immigrants to Canada, based off of the fact that you misrepresented yourself to obtain permanent residence, and subsequently Canadian citizenship.

[67] The Applicant submits that discounting establishment in Canada because it flowed from misrepresentation is contrary to the jurisprudence. They say that such an approach would hollow out the nature of a request, as almost every requestor, by definition, has benefited from a past immigration violation. An individual will always have been alleged to have committed a misrepresentation before they are in the position of arguing that their personal circumstances warrant relief in the citizenship revocation procedure. If those circumstances are treated, in effect, as the fruit of a poisoned tree and disregarded because of the original misrepresentation, it would have the effect of hollowing out the protection that was deliberately enacted by Parliament.

[68] The Respondent submits that the Applicant is simply disagreeing with the manner in which the Delegate considered and weighed their establishment.

[69] The Respondent points out that the Delegate considered the establishment factors in light of the seriousness of the misrepresentation and the failure to come forward with it until 2019.

[70] In Semana v Canada (Citizenship and Immigration), 2016 FC 1082, [Semana], Justice Gascon found there is nothing unreasonable in a conclusion that establishment under illegal circumstances should not be rewarded. Justice Gascon noted that it is trite law that persons ought not to benefit from their circumvention of immigration laws and their wanton duplicity in their immigration applications. This Court has often stated that “applicants cannot and should not be 'rewarded' for accumulating time in Canada, when in fact, they have no legal right to do so”: Semana at paragraph 48.

[71] In further explanation, Justice Gascon observed that:

[ . . . ] IRPA and the Canadian immigration regime are founded on the principle that whoever comes to Canada with the intention of settling must be of good faith, come with clean hands and comply to the letter with the requirements both in form and substance (Legault at para 19). There is clearly a public interest consideration at stake and the Canadian immigration authorities are at liberty to take that element into consideration in their decisions.

Semana at paragraph 49.

[72] I note that the Applicant first denied having any criminal convictions in December, 1999 when applying for a Temporary Resident Visa. For approximately 19 years, the Applicant enjoyed the benefits of their misrepresentation. It was reasonable for the Delegate to take that into consideration and find that the Applicant’s rehabilitation was deserving of little weight as the Applicant failed to come forward and take responsibility for their acts until they received the Notification Letter in 2019.

[73] I find on the facts of this matter, and in light of the jurisprudence, that the Delegate’s establishment analysis is reasonable.

[74] I also find that the Delegate’s conclusions that it was premature to consider any potential foreign hardship and the best interests of the Applicant’s children if the Applicant is removed to be reasonable.

VII. Conclusion

[75] The focus of reasonableness review must be on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome. The role of courts in these circumstances is to review, and they are, at least as a general rule, to refrain from deciding the issue themselves. Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem: Vavilov at paragraph 85.

[76] It was also confirmed in Vavilov that a reasonable decision is one that displays justification, transparency and intelligibility with a focus on the decision actually made, including the justification for it: Vavilov at para 100. I find the reasons under review display these characteristics.

[77] Overall, a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker: Vavilov at paragraphs 15 and 85. I find the reasons under review also meet these requirements.

[78] For all of the reasons I have set out, I find that the Decision is reasonable. The Delegate’s reasoning is justified, intelligible and transparent without any logical fallacies or incoherent reasoning.

[79] The application is dismissed.

VIII. Possible Certified Question

[80] At the outset of the hearing of this application the parties acknowledged that they had not given notice of a certified question as they were under the impression that one could be addressed at the hearing.

[81] They indicated that they each had a version of a possible certified question.

[82] I agreed to allow the parties to consider, following release of this Judgment and Reasons, whether a possible certifiable question, or questions, arise on the facts.

[83] The parties are to discuss, within four working days of release of this Judgment and Reasons, and determine whether they believe any serious question or questions of general importance arise for certification. If so, then the proposed question or questions are to be filed with the Court, with proof of service, in both PDF and Word format, no later than close of business of the Vancouver Registry Office on the seventh working day after release of this Judgment and Reasons.

[84] Submissions of each party with respect to any such proposed question or questions shall be filed with the Court, in both PDF and Word format, with proof of service, no later than close of business of the Vancouver Registry Office within seven working days of the submission of the proposed question or questions. Submissions may be single-spaced and shall not exceed four pages in length.

[85] Any submissions in Reply shall be served and filed, in both PDF and Word format, single-spaced, not exceeding two pages in length no later than close of business of the Vancouver Registry Office within three working days of receipt of the submissions.

[86] The matter of whether there is a question or questions to be certified is reserved pending receipt and review of any such question or questions and written submissions from the parties.

 

JUDGMENT in T-1154-20

THIS COURT’S JUDGMENT is that:

1. The application is dismissed.

2. The matter of whether there is a question or questions to be certified is reserved pending receipt and review of any written submissions from the parties.

"E. Susan Elliott"

 

APPENDIX

Citizenship Act RSC 1985, c. C-29

 

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	T-1154-20
STYLE OF CAUSE:	ROKO NETANI GUCAKE v MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:	HELD BY WAY OF VIDEOCONFERENCE
DATE OF HEARING:	May 27, 2021
JUDGMENT AND REASONS:	ELLIOTT J.
DATED:	February 2, 2022

APPEARANCES:

Laura Best	For The Applicant
Helen Park	For The Respondent

SOLICITORS OF RECORD:

Embarkation Law Corporation Barrister and Solicitor	For The Applicant
Attorney General of Canada Vancouver, British Columbia	For The Respondent