Docket: T-2114-22
Citation: 2023 FC 1205
Ottawa, Ontario, September 7, 2023
PRESENT: Associate Chief Justice Gagné
BETWEEN: |
M.A. |
Applicants |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Applicants, a mother and her daughter, challenge a Citizenship Officer’s decision concluding that the mother’s citizenship application was abandoned pursuant to section13.2(1) of the Citizenship Act, RSC, 1985, c C-29.
[2] On June 16, 2023, the Court granted a motion for confidentiality to protect the Applicants’ identities.
[3] The Applicants technically challenge two decisions: 1) the abandonment decision regarding the mother, and 2) the subsequent refusal decision regarding the daughter.
[4] While it is unclear whether leave was granted for one or both decisions, the Court is of the view that the case of the daughter should be heard with that of the mother.
II. Facts
[5] The Applicants are Spanish citizens who became permanent residents of Canada in August 2014.
[6] In November 2017, the Applicants concurrently filed applications for Canadian citizenship together as mother and minor daughter. The mother completed and passed her citizenship test in April 2018.
[7] In May 2018, the Applicants filed copies of their valid permanent residency cards and, upon request, completed a physical-presence questionnaire. The latter request appears to have been triggered by the fact that the Applicants had mistakenly not accounted for short trips to the United States in their initial application, amounting to a total of six days. The Applicants’ response in May contained more than seven hundred pages of evidence thoroughly establishing their presence in Canada for the required 1095 days.
[8] Between May 4, 2018 and February 22, 2021 (i.e. over 2 years and 9 months) the Applicants’ files appear to have lingered with little to no action on them performed by Immigration, Refugees and Citizenship Canada [IRCC].
[9] The record shows that this was despite many attempts by the Applicants’ lawyer to have the file expedited and/or to receive updates on the status of the file.
[10] The only substantive response the Applicants received from IRCC regarding the status of their file as a result of their follow-ups was on August 15, 2019; they were informed that their file was considered complex so that the usual delay (the 12 months processing standard) did not apply but that their case had been referred to an agent who would review their submissions.
[11] In the meantime, the Applicants’ permanent resident cards expired in September 2019 and were not renewed.
[12] In February 2021, the officer who reviewed the Applicants’ documents sent them a request for supplementary evidence stating:
Please provide a valid PR card. If you do not have a valid PR card and reside outside Canada, you may apply for a Permanent Resident Travel Document (PRTD) at the closest Canadian Embassy.
[13] In March, 2021 the Applicants’ lawyer provided a lengthy response. It proactively disclosed that while the Applicants had met all the eligibility criteria when applying for citizenship, the Applicant has been residing outside of Canada and has not spent 730 days in Canada within the past five year period [CTR page 110-113]. It further submits reasons why IRCC’s request is unfounded in law and emphasizes the impact a processing delay of over three years has had on their file. Finally, and in the alternative, it describes humanitarian and compassionate factors that would need to be considered, should the Applicants’ residency obligations be re-assessed. No document was provided with the submissions, which ended by urging IRCC to finalize the Applicants’ application.
[14] In July 2021, the Officer sent a final notice requesting the same documents. It included more detailed notes which referenced the Applicants’ response. However, this notice was sent to an out of date email for Applicants’ counsel, and was thus not received by the Applicants.
[15] Despite IRCC having received the Applicants’ submissions, the Officer proceeded as if no submissions had been received from the Applicants; on September 7, 2021, he issued a letter to the Applicants which informed them that their citizenship application would be treated as abandoned. The reason given was that:
[X] Immigration, Refugees and Citizenship Canada (IRCC) has not heard any response from you, therefore, a citizenship official has declared that you have not provided a reasonable explanation and will treat your application as abandoned.
[16] The Applicants reacted by first filing an Application for Leave and Judicial Review of the September 7 decision, and subsequently by sending a letter to IRCC to demonstrate that they had in fact responded.
[17] On October 5, 2021, IRCC reactivated the Applicant’s file and informed the Applicants accordingly. This confirmation again included a request for the same supplementary evidence; namely a valid permanent residency card or travel document.
[18] On November 3, 2021, the Applicants responded to IRCC, again arguing that the request for these documents was unfounded in law. The content of this response was very similar to their first response, with the exception of an additional section entitled Special Cases. The Applicants submit therein that their case constitutes a case of “special and unusual hardship”
which warrants the discretionary grant of citizenship under paragraph 5(4) of the Citizenship Act.
[19] The Applicants eventually filed a Notice of Discontinuance for their judicial review of the first abandonment decision.
[20] Between November 2021 and September 2022, the file again appears to have lingered.
[21] The Applicants again made efforts to expedite their case, with their counsel making two more follow-ups in April and June 2022.
[22] Finally, the Applicants initiated a mandamus application on August 2, 2022.
[23] On September 26, 2022, the Officer again found that the Applicants’ applications for citizenship were abandoned. This decision came 4 years and nearly 11 months (1788 days) after they had made their applications.
III. Decision Under Review
[24] On September 26, 2022, the Officer rendered a decision finding the Applicants’ application abandoned. As can be seen in the following excerpt from the form letter communicating the decision to the Applicants, the Officer appears to have also refused the minor daughter’s application:
The explanations you provided to Citizenship and Immigration Canada (CIC) have been received and assessed, and have been deemed unacceptable by a citizenship official.
[…]
The application […] submitted on behalf of your minor child has been refused as they do not meet the requirement to have a Canadian citizen parent [CTR, page 21].
[25] The Officer’s notes summarize the response received from the Applicants’ lawyer and further indicate:
[…] After analysing the response given by the lawyer, I remained unsatisfied that the applicant had retained her permanent resident status. As a result, the applicant’s application for citizenship has been abandoned due to non-compliance to provide the requested documents [CTR, page 1].
IV. Issues and Standard of Review
[26] In my view, the sole issue raised by this Application for judicial review is whether the Officer erred in finding that the application for citizenship was abandoned.
[27] It is uncontested that the applicable standard of review is that of reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65).
V. Analysis
[28] The Applicants argue that the Officer’s reasons fail the Vavilov requirement of revealing a rational chain of analysis. They submit the Officer did not engage with the facts of the case, including the excessive delays, and did not justify the basis of his decision. The Officer failed to explain why the Applicants’ reasons for not providing documents were unreasonable.
[29] The Applicants further highlight alleged errors by the Officer.
[30] Firstly, he erred in asking whether the Applicants’ explanation for not providing documents was “unacceptable”
instead of the required test of whether it was “reasonable”
.
[31] Second, the Officer departed from published operational guidelines by treating the file as abandoned. These operational guidelines emphasize that abandonment is only to be used where all other options have been exhausted.
[32] Finally, the Applicant submits that the Minister has the ability to exceptionally grant citizenship under paragraph 5(4) of the Citizenship Act, and that this case merits this discretion. The Applicants note that despite raising this provision, no decision was rendered on it nor was it addressed.
[33] The Respondent, on the other hand, argues that the Officer did not have jurisdiction to render a decision under 5(4) of the Citizenship Act, and that this issue would be considered by another decision-maker should the abandonment decision be confirmed.
[34] The Respondent argues that the 2014 Strengthening Canadian Citizenship Act created grounds for reviewing eligibility for citizenship up until the taking of the oath of citizenship.
[35] The Respondent submits that a Permanent Resident Card renewal was not a “trap”
for the Applicants, nor was it akin to an automatic denial. They underscore that one can maintain permanent resident status on humanitarian and compassionate grounds without having met the residency requirement, and that the Officer here was not making a final decision on the Applicants’ permanent resident status itself.
[36] The Respondent argues it was warranted to request the information to establish whether permanent residence was maintained. They submit that the responses the Applicants provided did not address the request and gave no excuse for this failure; this was thus sufficient to trigger the abandonment decision.
[37] First, I am of the view that the Applicants overstate the impact that the Officer’s request for documents would have on their application when they equate it to a “trap”
or even “sabotage”
of their application. They fail to account for the role the request played, and the discretion that was vested in the Officer responsible for assessing their permanent resident status.
[38] However, in the absence of adequate information provided to the Applicants by IRCC, the Applicants are not entirely to blame for this mischaracterization.
[39] As described by the Court in Saab v Canada (Minister of Citizenship and Immigration), 2018 FC 653, the request for documents in this context was the beginning of a process to determine whether the Applicants still complied with residency conditions required for the grant of citizenship. A valid permanent resident card offered a simplified manner for establishing permanent residency; if the applicants could not provide cards, they would have to undergo a process for the final determination of permanent resident status (para 31).
[40] A final determination of permanent resident status is not based exclusively on meeting residency requirements; it permits exceptions on humanitarian and compassionate grounds (Saab, at para 32). Specifically, paragraph 28(2)(c) of the Immigration and Refugee Protection Act, SC 2001 c 27 enables an officer to find that permanent resident status has been maintained despite any breach of the residency obligation:
(c) a determination by an officer that humanitarian and compassionate considerations relating to a permanent resident, taking into account the best interests of a child directly affected by the determination, justify the retention of permanent resident status overcomes any breach of the residency obligation prior to the determination [Emphasis Added].
c) le constat par l’agent que des circonstances d’ordre humanitaire relatives au résident permanent — compte tenu de l’intérêt supérieur de l’enfant directement touché — justifient le maintien du statut rend inopposable l’inobservation de l’obligation précédant le contrôle [je souligne.]
[41] In the Applicants’ case, such a final determination would have necessarily involved taking into account the best interests of the minor Applicant, as she was “a child directly affected by the determination”
.
[42] Turning to the Applicants’ submission that their submissions regarding section 5(4) of the Citizenship Act were ignored, I agree with the Respondent that the Officer making the abandonment decision did not personally have jurisdiction to render a decision under section 5(4). However, the decision to find the Applicants’ file abandoned in light of the Applicants’ invocation of section 5(4) is, in my view, unreasonable. It was incumbent on the Officer to either refer the case to the Minister, to a decision-maker with the appropriate delegated authority, or to at least inform the Applicants of the correct means for doing so themselves. A direct invocation of the Minister’s discretion is the opposite of “abandonment’ on the Applicants”
part.
[43] Turning to the IRCC’s own procedural guidelines for the abandonment procedure, I also find that the Officer departed from both purposes of the abandonment procedure as set out in IRCC’s procedural guidelines. These guidelines set out that:
Abandonment should be used only when all other options have been exhausted, and it is evident that the applicant is no longer actively pursuing their application, or when a reasonable excuse has not been provided for the applicant’s inability to attend and [sic] event or submit requested documents. Where there is sufficient information on file to make a decision, a decision-maker should elect to make a decision on a file rather than treating it as abandoned.
[44] As discussed above, all the evidence before the Officer demonstrates that the Applicants were actively pursuing their application. Additionally, since the Applicants had made submissions labelled “Humanitarian and Compassionate Grounds”
, there was, in my view, sufficient information on file for the decision to be referred to a final determination of permanent resident status. Such an approach would be consistent with the spirit and letter of the procedural guidelines.
[45] In such a context, I agree with the Applicants that as per Vavilov (at para 131), it was incumbent upon the Officer to explain why the abandonment procedure was being used in a case which was clearly ongoing:
[131] Whether a particular decision is consistent with the administrative body’s past decisions is also a constraint that the reviewing court should consider when determining whether an administrative decision is reasonable. Where a decision maker does depart from longstanding practices or established internal authority, it bears the justificatory burden of explaining that departure in its reasons. If the decision maker does not satisfy this burden, the decision will be unreasonable. […]
[46] I also disagree with the Respondent’s characterization of the Applicants’ submissions as being non-responsive or inappropriate. While the Applicant did challenge the lawfulness of the information being requested from them, they did so respectfully and nonetheless provided additional information constituting an excuse. Indeed, this information was included under the headings “Facts”
and “Humanitarian and Compassionate Grounds”
, and the Applicants’ submissions noted that “regardless, there are significant and compelling humanitarian and compassionate factors that would need to be considered”
by IRCC in its assessment of the Applicants’ residency obligations.
[47] While respectfully challenging IRCC’s legal authority to be making the request it had made, I find the Applicants’ submissions also showed an openness to their residency being assessed. I also take note that this Court has not categorically ruled out legal argument as being an inappropriate manner to respond in this context; Justice Annis noted that in the most exceptional circumstances, a reasonable excuse may take the form of a legal argument (Saab, at para 75). Here, I note the dual nature of the Applicants’ response – it comprised both legal arguments as well as facts and humanitarian and compassionate factors. Amongst the facts that were admitted, the Applicants stated that they did not renew their residency cards. That is a clear response to the request for documents.
[48] Before concluding, I believe a discussion of the cases cited by the parties is warranted. I agree with the Applicants that the cases cited by the Respondent are highly distinguishable, as they mainly concern applicants who refused requests to provide additional information concerning the residency period they relied upon to be eligible for citizenship (i.e. the 1095-day-over-five-years requirement). By contrast, the information requested in this case relates not to the Applicants’ application for citizenship, but to their permanent resident status.
[49] The investigations undertaken in Almuhaidib v Canada (Citizenship and Immigration), 2019 CF 1543 concerned serious questions as to whether the applicant in that case had established their initial five-year residency; as Justice Simon Noël notes at paragraph 132, new facts arose which called into question the days of residence in Canada disclosed in the initial application. The decision to declare the applicant’s citizenship application abandoned came after the applicant had not provided any of the documents required and submitted no justification for their failure (para 135).
[50] Similarly, Zhao v Canada (Citizenship and Immigration), 2016 FC 207 is a case where the applicant was refusing to provide information relating to the period he relied upon to be eligible for citizenship.
[51] While the facts of Saab are somewhat closer to the Applicants’ case, there are still notable differences. In Saab, the officer’s primary concern was again as to the core eligibility requirement for citizenship; it was admitted that the applicants in that case had not met it. Furthermore, the applicants’ submissions in that case appear to have solely rested on residency, and unlike the present case, do not appear to have relied on humanitarian and compassionate factors or on section 5(4) of the Citizenship Act.
[52] The Applicants rightly take issue with their case being compared to situations in which fraud or deception occurred. The record establishes that they have been cooperative and forthcoming with information. I underscore that at no point in the record is any suspicion raised that the Applicants have deliberately provided false information.
[53] All things considered, I am of the view that the Officer’s decision to declare the Applicants’ case abandoned is unreasonable and that the Court’s intervention is warranted.
[54] Although the Applicants seek party-to-party costs under Rule 407 of the Federal Courts Rules, SOR/98-106, I am of the view that there are no special reasons to award costs in this Application.
VI. Conclusion
[55] The Applicants’ Application for judicial review is granted and the file is remitted to Immigration, Refugees and Citizenship Canada for a new determination by a different officer. The parties have not proposed any question of general importance for certification and no such question is raised by the facts of this case. There is no award of costs.
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