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NATURALIZATION OR CITIZENSHIP - Loss of or disqualification from citizenship - Appeals and judicial review - Citizenship Act and Regulations - Interpretation

Thursday, August 10, 2017 @ 8:47 AM  


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Appeal by Vavilov from the dismissal of his application for judicial review of the cancellation of his citizenship by the Registrar of Citizenship (Registrar). Vavilov was born in Canada in 1994. In 2010, while living with his family in the United States, Vavilov learned his parents were espionage agents for Russia when FBI agents entered the family home and arrested his parents. Following the arrest, Vavilov was forced to go to live in Russia, a country to which he had no connection. His surname was changed from Foley to Vavilov. The appellant considered himself and his brother to be Canadian. However, the Registrar found that the appellant was not Canadian and cancelled his Canadian citizenship under s. 26(3) of the Citizenship Regulations. According to the Registrar, paragraph 3(2)(a) of the Citizenship Act applied. Under that paragraph, if neither parent was a citizen or lawfully admitted to Canada for permanent residence and either was “a diplomatic or consular officer or other representative or employee of a foreign government,” the child was not a Canadian citizen despite being born in Canada. The Registrar found that the appellant’s parents were “employees of a foreign government” within the meaning of paragraph 3(2)(a). In dismissing the appellant’s application for judicial review, the Federal Court agreed with the Registrar’s interpretation of the provision.

HELD: Appeal allowed. The purpose of section 3(2)(a) of the Citizenship Act was to bring Canadian law into accordance with international law and other domestic legislation, to ensure that Canadian-born children of employees of foreign governments did not obtain Canadian citizenship. The section applied only to those employees of foreign governments who benefited from diplomatic privileges and immunities from civil and/or criminal law. These employees did not have duties and responsibilities to Canada and as such, they and their children were prohibited from acquiring citizenship. The appellant’s parents never enjoyed immunity from criminal prosecution or civil liability. They held no form of diplomatic status. Accordingly, the judgment of the Federal Court was set aside, the judicial review application was allowed, and the Registrar’s decision to cancel the appellant’s citizenship was quashed.

Vavilov v. Canada (Minister of Citizenship and Immigration), [2017] F.C.J. No. 638, Federal Court of Appeal, D.W. Stratas, W.W. Webb and M.J.L. Gleason JJ.A., June 21, 2017. Digest No. TLD-August72017008