Until recently, the Government of Canada adopted a very aggressive approach regarding the initiation of cessation applications against permanent residents who are protected persons. The reason is because since 2012 people who lose their protected person status for any of the following reasons also lose their permanent resident status:
- the person has voluntarily re-availed himself or herself of the protection of their country of nationality;
- the person has voluntarily reacquired their nationality;
- the person has acquired a new nationality and enjoys the protection of that new nationality; and
- the person has voluntarily become re-established in the country that the person left before claiming refugee status in Canada.
Several permanent residents with citizenship applications in processing have been affected by cessation applications. In Godinez Ovalle v. Canada (Citizenship and Immigration), the Federal Court rather bluntly told both Immigration, Refugees and Citizenship Canada (“IRCC“) and the Canada Border Services Agency (“CBSA“) that they were out of line, and even called their approach “inhumane.”
Ultimately, however, the Federal Court of Appeal in 2017 determined that IRCC can indeed suspend the processing of citizenship applications while cessation proceedings are underway.
A brief summary of the facts in Godinez Ovalle as reproduced from paragraphs 2-8 of the decision are as follows:
The Applicant arrived in Canada with his family in May 2002. They received refugee status in October 2003. The Applicant became a permanent resident in June 2005.
The Applicant applied for Canadian citizenship in April 2012. He attended an interview with a CIC officer in February 2014. He says that he was told that his application was being referred to a citizenship judge to make a final decision.
On March 4, 2014, a CIC officer contacted a CBSA officer to ask if they were interested in the Applicant’s periods of absence from Canada. The CBSA officer indicated that the Applicant’s file was of interest and asked that any documentation be forwarded.
A record was added to the Global Case Management System notes on March 12, 2014 which indicates that the “Applicant is a subject of interest with CBSA National Security Unit-EID. Pending more information from CBSA. BF until September 2014.” On the same date, the Applicant’s Field Operations Support System Clearance was updated to indicate “BF – Under Review.”
In June 2014, CBSA invited the Applicant to an interview. The Applicant requested disclosure prior to the interview. CBSA declined to disclose any documents and suggested that the Applicant make an Access to Information and Privacy request. The interview was cancelled.
On October 23, 2014, the Applicant launched the present application for an order ofmandamus. On the same day, a CIC officer suspended the processing of the Applicant’s citizenship application pursuant to s 13.1 of the Citizenship Act pending CBSA’s cessation investigation.
In December 2014, CBSA filed an application for cessation of the Applicant’s refugee status. Through this notice, the Applicant also received notice that his citizenship application was suspended.
Section 13.1 of the Citizenship Act states:
Suspension of processing
13.1 The Minister may suspend the processing of an application for as long as is necessary to receive
(a) any information or evidence or the results of any investigation or inquiry for the purpose of ascertaining whether the applicant meets the requirements under this Act relating to the application, whether the applicant should be the subject of an admissibility hearing or a removal order under the Immigration and Refugee Protection Act or whether section 20 or 22 applies with respect to the applicant; and
(b) in the case of an applicant who is a permanent resident and who is the subject of an admissibility hearing under the Immigration and Refugee Protection Act, the determination as to whether a removal order is to be made against the applicant.
Justice Russell found that this provision does not allow the Minister of Citizenship and Immigration Canada to suspend processing of citizenship applications due to possible cessation issues. He stated (paragraphs added):
In my view, there is also no statutory authority for what CIC has done in the present case. As I have already said, I do not think that s 17 of the old Citizenship Act or s 13.1 of the present Citizenship Act address the Applicant’s situation. This is because the Applicant clearly met all of the requirements of the Citizenship Act when he was interviewed on February 14, 2014. He had received immigration clearance on May 28, 2013 and this was on his application file. Neither s 17 nor s 13.1 say that the Minister can or should suspend an application to investigate the cessation process though CBSA. Maybe s 13.1 should allow for that to occur, but, in my view, it does not. And just as judges cannot make law by attempting to fill in gaps in legislation, nor can public servants give themselves powers by filling gaps through the use of policy directives.
It seems to me that this is such an important and far-reaching issue that only Parliament can address and legislate what is to happen if residency concerns arise when someone, such as the Applicant, has permanent residence that has been cleared by CBSA with a full knowledge of the Applicant’s visits to Guatemala, and where CBSA has both endorsed his permanent residency card and provided immigration clearance. And it really does seem unfair to me that CIC and/or CBSA should take the steps they did here without alerting the Applicant of the perceived problem.
The Respondent says this process should not be a race, but clearly that is what CIC and CBSA have decided it is because, by not alerting the Applicant to the fact that his permanent residency and his chance at citizenship were at stake, they gave themselves the head start they felt they needed to investigate and complete the cessation process before the Applicant could take any action (including a mandamus application) to protect his rights. As things stand, this is a race, but it is a race in which people like the Applicant may not even know they are running because of lack of notification and strenuous resistance to disclosure by a powerful state apparatus.
In my view, only Parliament can address this problem if it is considered to be one. However, it is noteworthy that when Parliament amended the Citizenship Act and brought the present s 13.1 into being, it did not extend the Minster’s suspension powers to include “immigration clearance,” so that, for the time being at least, I think it has to be assumed that what Justice Mactavish said about this issue generally in Stanizai – decided before the new Citizenship Act came into force – reflects Parliament’s present intentions on this issue. As the Applicant points out, the RPD itself has found that bringing cessation proceedings to vitiate permanent residence after years of delay is contrary to Canada’s obligations under both the Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 137 and the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. See Re X (7 October 2014), Vancouver VB4-01572 (RPD) at para 35.
In addition, in reviewing a decision to bring an application for cessation before the RPD, Justice Mosley commented on the fact that long-time permanent residents’ travel was always within the knowledge of the Minister which suggested that the Minister “had been lying in the weeds waiting for the legislative change to pursue permanent residents” (Bermudez, above, at para 28). The Minister may have received the legislative change necessary to pursue permanent residents, but, in my view, the Minister did not receive the legislative change necessary to suspend citizenship applications to pursue permanent residents in this manner.
As a result of this case, and a somewhat similar case in Stanizai v. Canada, it was thought clear that the possibility of cessation applications should not influence citizenship applications.
However, in Nilam v. Canada, 2016 FC 896, the Federal Court certified the following question:
Can the Minister suspend the processing of an application for citizenship pursuant to his authority under s. 13.1 of the Citizenship Act, to await the results of cessation proceedings in respect of the applicant under s 108(2) of the Immigration and Refugee Protection Act?
In Nilam v. Canada, 2017 FCA 44, the Federal Court of Appeal (the “FCA“) answered that it could. The FCA noted that IRCC has the power to place a hold on citizenship applications where there are admissibility concerns under IRPA, and cessation gives rise to admissibility concerns. As such, the FCA further reasoned that IRCC does not have a public legal duty to continue processing the a permanent resident’s citizenship application notwithstanding that the cessation proceedings have yet to be determined.