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NATURALIZATION OR CITIZENSHIP - Application for grant of citizenship - Powers and duties of citizenship judge - Procedure - Appeals and judicial review - Citizenship Act and Regulations - Interpretation

Tuesday, April 11, 2017 @ 7:49 AM  


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Appeal by the Minister from an order of mandamus requiring it to continue to process the respondent’s citizenship application. The respondent, a citizen of Sri Lanka, obtained refugee status after coming to Canada in 2009. He was granted permanent residence in Canada in 2011 and commenced a citizenship application in 2015. The Minister applied for cessation proceedings pursuant to s. 108 of the Immigration and Refugee Protection Act on the grounds that the respondent had returned to Sri Lanka for extended stays between 2011 and 2013, and had therefore re-availed himself of Sri Lankan protection. The respondent attended at a citizenship interview, passed the knowledge and language tests, and established his identity and residency. The Minister suspended the respondent’s citizenship proceedings in January 2016, claiming that it had authority to suspend the application pending the outcome of the cessation proceedings pursuant to s. 13.1 of the Citizenship Act. The respondent argued that the Minister's position was contrary to the court's previous ruling in a similar case, which found that the Minister did not have authority to suspend citizenship proceedings once commenced, pending cessation hearings. He sought an order of mandamus requiring the Minister to continue his citizenship proceedings. The judge allowed the respondent’s application, finding that he had met the test for an order of mandamus. He found that the Minister owed the respondent a legal duty to act, no other adequate remedy was available, the order would be of practical effect, and the relief sought was barred by equity and favoured on the balance of convenience. He further found that the respondent had met all of the conditions to obtain Canadian citizenship under s. 5(1) of the Act. He also found that the Minister had suspended the respondent’s application contrary to the court's clear prior decision in which it was found that s. 13.1 of the Act did not provide authority to do so. The judge further found that the Minister’s servants had acted in bad faith, in a reprehensible manner, and put the applicant to considerable legal expense, which justified an award of special costs in the respondent’s favour.

HELD: Appeal allowed. Pursuant to s. 13.1 of the Act, the Minister was permitted to suspend the processing of an application for citizenship for as long as necessary. Specifically, the Minister had the power to place a hold on a citizenship application where there were admissibility concerns under the Immigration and Refugee Protection Act. Cessation was an admissibility issue and one that could result in removal. As such, it followed that the Minister’s interpretation that s. 13.1 of the Act permitted him to suspend processing of an application for citizenship was reasonable. It further followed that the Minister did not have a public legal duty to continue processing the respondent’s application notwithstanding that the cessation proceedings had not yet been determined. Consequently, the test for mandamus was not met. Finally, there was no basis to find bad faith and therefore no basis for special costs.

Nilam v. Canada (Minister of Citizenship and Immigration), [2017] F.C.J. No. 262, Federal Court of Appeal, D.G. Near, R. Boivin and D.J. Rennie JJ.A., March 7, 2017. Digest No. TLD-Apr102017006