JOSEPH MARK Applicant v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2022 FC 411

Date: 20220324 Docket: T-1065-21 Citation: 2022 FC 411 Ottawa, Ontario, March 24, 2022 PRESENT: The Honourable Mr. Justice Pamel BETWEEN: JOSEPH MARK Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent ORDER AND REASONS [ 1 ] By written motion pursuant to

section 369 of the Federal Courts Rules , SOR/98-106 [ Rules ], the applicant, Joseph Mark, seeks permission to file a supplementary affidavit [supplementary affidavit] as part of his reply to the response filed by the respondent, the Minister of Citizenship and Immigration [Minister], in the underlying application for judicial review in which Mr. Mark seeks a writ of mandamus ordering the Minister to complete the processing of his application for Canadian citizenship and a declaratory order that the processing of his citizenship application be completed within 60 days [underlying application]. [ 2 ] Mr.

Mark is a citizen of Liberia. He first entered Canada in November 2004, claiming refugee protection. Following the rejection of his refugee claim by the Refugee Protection Division and the dismissal of his appeal by the Refugee Appeal Division of the Immigration and Refugee Board in 2005, Mr. Mark was included as a dependant in his spouse’s permanent residence application in 2006; he obtained permanent resident status in August 2009 under the DR-1 category – as a dependant of a refugee who resides in Canada. In April 2012, Mr.

Mark applied to become a Canadian citizen and has been waiting ever since. [ 3 ] Unbeknownst to him, in March 2015, a note was placed in Mr. Mark’s citizen application file to the effect that he was a subject of interest to the Canada Border Services Agency [CBSA] Intelligence Unit. Mr. Mark continued to follow up on his application with Immigration, Refugees and Citizenship Canada [IRCC], even soliciting the assistance of the member of parliament for his riding. In August and September 2016, IRCC received confirmation from the CBSA that the investigation into Mr.

Mark was continuing and that the CBSA was in contact with the Royal Canadian Mounted Police regarding Mr. Mark. The investigation continued and in February 2018, in accordance with

section 13.1 of the Citizenship Act , RSC 1985, c C-29 , the processing of Mr. Mark’s citizenship application was suspended for security reasons by the IRCC Case Management Branch Security Unit as Mr. Mark was the subject of an investigation by “Security partners”, pending the outcome thereof. In January 2020, IRCC left a message with the office of a local member of parliament who had enquired as to the status of Mr. Mark’s citizenship application to the effect that his security clearance was still pending. Again, in February 2021, IRCC received a call from another member of parliament enquiring about Mr. Mark’s application, and a status update was provided.

Section 13.1 of the Citizenship Act states: " Suspension of processing " " " " Suspension de la procédure d’examen " " " " 13.1 The Minister may suspend the processing of an application for as long as is necessary to receive " " " " 13.1 Le ministre peut suspendre, pendant la période nécessaire, la procédure d’examen d’une demande : " " (

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 " " " "

a) dans l’attente de renseignements ou d’éléments de preuve ou des résultats d’une enquête, afin d’établir si le demandeur remplit, à l’égard de la demande, les conditions prévues sous le régime de la présente loi, si celui-ci devrait faire l’objet d’une enquête dans le cadre de la

Loi sur l’immigration et la protection des réfugiés ou d’une mesure de renvoi au

titre de cette loi, ou si les articles 20 ou 22 s’appliquent à l’égard de celui-ci; " " "

" (

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. " " " "

b) dans le cas d’un demandeur qui est un résident permanent qui a fait l’objet d’une enquête dans le cadre de la

Loi sur l’immigration et la protection des réfugiés , dans l’attente de la décision sur la question de savoir si une mesure de renvoi devrait être prise contre celui-ci. " " " [ 4 ] The underlying application was filed on July 5, 2021; the decision for which judicial review is being sought is a response received by Mr. Mark’s solicitors on June 17, 2021, from IRCC advising that all required documents had been received with respect to Mr. Mark’s citizenship application, however, that the application itself was still pending. The filing of the underlying application may have incited a sense of urgency in Mr.

Mark’s application – as is often the case – and in August 2021, Mr. Mark was interviewed for possible inadmissibility under subsection 37(1) of the Immigration and Refugee Protection Act , SC 2001, c 27 [ Act ]. Subsection 37(1) of the Act states: " Organized criminality " " " " Activités de criminalité organisée " " " " 37(1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for " " " " 37(1) Emportent interdiction de territoire pour criminalité organisée les faits suivants : " " (

a) being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under

an Act of Parliament by way of indictment, or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence, or engaging in activity that is part of such a pattern; or " " " "

a) être membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle se livre ou s’est livrée à des activités faisant

partie d’un plan d’activités criminelles organisées par plusieurs personnes agissant de concert en vue de la perpétration d’une infraction à une loi fédérale punissable par mise en accusation ou de la perpétration, hors du Canada, d’une infraction qui, commise au Canada, constituerait une telle infraction, ou se livrer à des activités faisant

partie d’un tel plan; " " (

b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or laundering of money or other proceeds of crime. " " " "

b) se livrer, dans le cadre de la criminalité transnationale, à des activités telles le passage de clandestins, le trafic de personnes ou le recyclage des produits de la criminalité. " [ 5 ] At present, IRCC is awaiting the outcome of the CBSA’s investigation prior to completing its assessment of Mr. Mark’s application under the Citizenship Act . [ 6 ] On September 1, 2021, the Minister filed his responding affidavit and memorandum of arguments setting out many of the facts that I have highlighted above. On September 13, 2021, Mr.

Mark attempted to file his reply, however, he also sought to file a supplementary affidavit which, he claims, is to answer the issues that have been raised relating to the ongoing investigation as, he claims, the filing of the Minister’s response materials was the first time that he was made aware that his application had been suspended because the CBSA was conducting an investigation into his possible involvement in organized criminality. As no consent was forthcoming from the Minister, Madam Prothonotary Steele directed that Mr.

Mark file a formal motion seeking permission to file a supplementary affidavit, hence the present motion. [ 7 ] There is no provision in the Federal Courts Citizenship, Immigration and Refugee Protection Rules , SOR/93-22 [ Immigration Rules ], for filing reply evidence only reply argument ( Kuchin v Canada (Minister of Citizenship and Immigration) (August 1, 1995), Doc. IMM- 1015-95 (Fed. Proth.). Consequently, the present motion is being brought under

section 312 of the Rules , which states: " Additional steps " " " " Dossier complémentaire " " 312 With leave of the Court, a party may " " " " 312 Une

partie peut, avec l’autorisation de la Cour : " " (

a) file affidavits additional to those provided for in rules 306 and 307; " " " "

a) déposer des affidavits complémentaires en plus de ceux visés aux règles 306 et 307; " " "

" (

b) conduct cross-examinations on affidavits additional to those provided for in rule 308; or " " " "

b) effectuer des contre-interrogatoires au sujet des affidavits en plus de ceux visés à la règle 308; " " (

c) file a supplementary record. " "

c) déposer un dossier complémentaire. " " " [ 8 ] The test under

section 312 of the Rules was set out by the Federal Court of Appeal in Forest Ethics Advocacy Association v National Energy Board , 2014 FCA 88 , according to which a party seeking to file a supplementary affidavit in the context of an application must demonstrate the following: 1. The evidence must be admissible on the application for judicial review; 2. The evidence must be relevant to an issue that is properly before the court; 3. If these two preliminary requirements are met, the court may exercise its discretion, considering the following factors: (

a) Was the evidence sought to be adduced available when the party filed its affidavits or could it have been available with the exercise of due diligence? (

b) Will the evidence assist the court, in the sense that it is relevant to an issue to be determined and sufficiently probative that it could affect the result? (

c) Will the evidence cause substantial or serious prejudice to the other party? [ 9 ] In addition, in Olia v Canada (Minister of Citizenship and Immigration) , 2005 FC 315 at paragraph 3 , this Court determined that a supplemental reply affidavit in an immigration matter under the Immigration Rules may be admitted when special circumstances, which constitute in effect circumstances that are unusual, uncommon or exceptional, are shown. [ 10 ] The Minister argues that Mr. Mark is splitting his evidence and that there is nothing in Mr.

Mark’s supplementary affidavit that he did not know prior to the filing of the underlying application; the essence of the supplementary affidavit is that, according to Mr. Mark, he has no criminal record either in Canada or elsewhere, he is a law-abiding person who has been living in Canada for 15 years while supporting his family, “to the best of his knowledge” none of the prohibitions under

section 22 of the Citizenship Act apply to him, and since the last update that he received from IRCC in June 2021, he honestly and reasonably believed that his citizenship application was being processed normally. The supplementary affidavit signed on September 13, 2021, makes no mention of his interview with the CBSA on August 5, 2021, or of what he was told of the status of his application from the various members of parliament to whom IRCC was providing status reports following their enquiries on behalf of Mr. Mark. [ 11 ] In any event, I need not consider whether Mr.

Mark knew of the ongoing investigation prior to receiving the response material from the Minister or whether he is splitting his evidence. Having reviewed the supplementary affidavit, I cannot see how it can, in any way, be of assistance to the Court in dealing with the relevant issues surrounding the underlying application. As conceded by Mr.

Mark in his written material, the primary purpose of his supplementary affidavit is to confirm that he has always been a law-abiding member of society and that he does not have any criminal record, and thus support his claim that the ongoing security investigation is without merit. That may be true, however, it is not because Mr. Mark may not have a criminal record that the suspension of his citizenship application under

section 13.1 of the Citizenship Act is unreasonable or that he may therefore not be found inadmissible under

section 37 of the Act . [ 12 ] Under the circumstances, I have not been persuaded that the supplementary affidavit will in any serious way assist the Court in hearing the underlying application or that there are any special, unusual, uncommon or exceptional circumstances warranting its filing. Under the circumstances, I see no reason to exercise my discretion under

section 312 of the Rules to allow the filing of the supplementary affidavit. ORDER in T-1065-21 THIS COURT ORDERS that : 1 . The applicant’s motion for leave to file a supplementary affidavit is dismissed. 2 . The applicant must re-serve and re-file his reply memorandum dated September 13, 2021, without the supplementary affidavit within 10 days of the present order. 3 . Costs are to be in the cause. “Peter G. Pamel” Judge

FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1065-21 STYLE OF CAUSE: JOSEPH MARK v THE MINISTER OF CITIZENSHIP AND IMMIGRATION MOTION IN WRITING CONSIDERED AT OTTAWA, ONTARIO PURSUANT TO

SECTION 369 OF THE FEDERAL COURTS RULES ORDER AND reasons: PAMEL J. DATED: March 24, 2022 APPEARANCES : Luan Luan For The Applicant Lisa Maziade FOR THE RESPONDENT SOLICITORS OF RECORD : Luan Attorney Inc. Montréal, Quebec For The Applicant Attorney General of Canada Montréal, Quebec FOR THE RESPONDENT