ALEN NIU Applicant v. MINISTER OF CITIZENSHIP AND IMMIGRATION, 2018 FC 520

Date: 20180517 Docket: T-121-17 Citation: 2018 FC 520 Ottawa, Ontario, May 17, 2018 PRESENT: Mr. Justice Grammond BETWEEN:ALEN NIUApplicantandMINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS [1] Alen Niu is a 12-year old permanent resident of Canada. His mother became a Canadian citizen. However, she is presently thesubject of an investigation that may lead to the revocation of her citizenship. Meanwhile, Mr. Niu applied for citizenship, on the basisthat he has a Canadian parent.

Citizenship and Immigration Canada [CIC] suspended the treatment of his application, because therevocation proceedings against his mother may affect his entitlement to citizenship. He now seeks judicial review of the suspension ofhis citizenship application and an order directing CIC to process it. This type of order is known as a mandamus. I am denying thisapplication, because the suspension of the processing of his application is clearly supported by the legislation. I. Legislative Background and Issues [2] Two sections of the Citizenship Act, RSC 1985 c C-29 [the Act], are relevant to this case.

Section 5 provides that citizenship shall begranted to a permanent resident who is the minor child of a Canadian citizen.

Section 13.1 provides that the processing of an applicationmay be suspended "“for as long as is necessary to receive […] any information or evidence or the results of any investigation or inquiryfor the purpose of ascertaining whether the applicant meets the requirements under this Act relating to the application […].”" [3] Mandamus will issue only if the respondent has a non-discretionary duty to act (Apotex Inc v Canada (Attorney General), (FCA), [1994] 1 FC 742 (CA) at 766-769 [Apotex], affirmed (SCC), [1994] 3 SCR 1100). In appropriatecases,

section 5 of the Act imposes such a duty on the Minister (Conille v Canada (Minister of Citizenship and Immigration), (FC), [1999] 2 FC 33 (TD) [Conille]; Murad v Canada (Citizenship and Immigration), 2013 FC 1089 [Murad]; Stanizai vCanada (Citizenship and Immigration), 2014 FC 74). However, if a person’s application is suspended under

section 13.1, then theMinister no longer has a duty to act and mandamus is not available (Canada (Citizenship and Immigration) v Nilam, 2017 FCA 44 atpara 27 [Nilam]). [4] Hence, this application turns on whether Mr. Niu’s application for citizenship was validly suspended. The decision to suspend theprocessing of a citizenship application under

section 13.1 is reviewed on a standard of reasonableness: Nilam at paras 18-19. In hiswritten submissions, Mr. Niu argues that CIC could not invoke

section 13.1 for two reasons:

(1) section 13.1 does not authorize asuspension where the person who is the subject of an inquiry is not the person making the application; (2) the revocation proceedingsagainst Mr. Niu’s mother were legally non-existent when Mr. Niu brought this application for mandamus and whatever happenedafterwards is irrelevant. Moreover, in his oral submissions, Mr. Niu insisted heavily on the three-year delay since he filed his applicationfor citizenship. He argues that CIC has not provided a meaningful explanation for that delay. II. Analysis A.

Section 13.1 and Investigations Concerning another Person [5] Mr. Niu first argues that

section 13.1 cannot apply to him as he is not personally under investigation. I am unable to read therestriction suggested by Mr. Niu in the wording of

section 13.1. In this connection, my colleague Justice Richard Bell has already notedthat

section 13.1 is drafted in much broader language than its predecessor provision, former

section 17: Tayeb Ali v Canada (Citizenshipand Immigration), 2016 FC 1051 at paras 27-33, [2017] 1 FCR 372. In many cases, one’s entitlement to citizenship hinges upon one’sparents’ citizenship. Where

section 13.1 refers to "“whether the applicant meets the requirements under this Act,”" this may includewhether one’s parents are entitled to citizenship. There is no restriction in the wording of

section 13.1 that would suggest otherwise.Indeed, in a previous decision of this Court,

section 13.1 was interpreted as encompassing inquiries as to misrepresentations made by anapplicant’s parent: Chen v Canada (Citizenship and Immigration), 2017 FC 1171 at para 41. B. Crystallization of Entitlement to Mandamus [6] Mr. Niu asserts that when he brought his mandamus application, the revocation proceedings against his mother were non-existent, sothat

section 13.1 cannot be invoked. Assessing this argument requires further details about his mother’s revocation proceedings. Theseproceedings were initiated under a former version of the legislation that was declared unconstitutional by this Court in May 2017:

Hassouna v Canada (Citizenship and Immigration), 2017 FC 473 [Hassouna]. Parliament responded to this Court’s judgment byamending the legislation: Act to amend the Citizenship Act and to make consequential amendments to another Act, SC 2017 c 14. Mr.Niu’s mother was among the persons who had brought applications to quash their revocation proceedings on the same grounds. After thejudgment in Hassouna, her application was granted and the proceedings against her were declared null: Monla v Canada (Citizenship andImmigration), 2017 FC 668.

However, in defence to the present application, CIC has provided affidavit evidence to the effect that aninvestigation against Mr. Niu’s mother is still ongoing. There is no evidence before me as to whether revocation proceedings under thenew legislation have been initiated. [7] In light of these events, Mr. Niu asserts that there was no valid citizenship revocation process against his mother when the presentapplication was brought. Hence, there was no valid reason for suspending the processing of his application under

section 13.1. If section13.1 was inapplicable, there was nothing negating CIC’s duty to act and mandamus should issue. [8] In my view, this line of argument is flawed. The right to seek mandamus does not crystallize at the moment the application is filed.Rather, the Court must assess the entitlement at the moment the case is heard: Apotex at 771; 698114 Alberta Ltd v Banff (Town of), 2000 ABCA 237 at para 20, 190 DLR (4th) 353.

In other words, if events taking place between the moment the application is filed andthe moment the case is heard have the effect of negating the respondent’s public duty to act, mandamus will not issue. I am aware thatmy colleague Justice Yvan Roy, in the context of an application for mandamus, made a comment to the effect that what took place afterthe application was filed was irrelevant: Murad at para 61. My colleague, however, made that comment while discussing therespondent’s "“clean hands”" argument.

I do not understand him to endorse the idea that entitlement to mandamus crystallizes on the daythe application is filed. [9] The idea that the right to mandamus crystallizes when the application is filed would also defeat the purpose of

section 13.1. Bello vDavid, (QC CA), [1992] RJQ 939 (CA), a decision of the Quebec Court of Appeal, provides an illustration. At issuein that case was a provision of the Montreal city charter which allowed for the suspension of building permit applications when a changein the zoning by-laws was contemplated.

The Court denied the application for mandamus of a landowner who was refused a permit onthat ground, noting that: [translation] It appears clearly from the language quoted above that the legislature, in adopting such a provision, aimedprecisely at allowing the City, through such a freeze, to enact any amendment to the zoning by-law prohibiting works suchas those contemplated by applications for permits still under consideration, without the applicants being able, through filingplans and documents more quickly, to assert acquired rights, by managing to complete their applications before the long andcumbersome process for the amendment of the zoning by-law reaches its conclusion. (p 943) [10] Moreover, mandamus, like other administrative law remedies, is discretionary (Apotex at 769).

I may refuse mandamus where itwill not advance the resolution of the dispute between the parties or will not have "“practical value or effect”" (Apotex at 768). Inessence, Mr. Niu is asking me to order CIC to process his application now on the grounds that no grounds for suspension existed inJanuary 2017, when this application was filed. But if I were to do so, CIC could suspend the application once again because a validinvestigation is currently underway. The resolution of the case would not have been furthered. C. Notice and Delay [11] Mr.

Niu devoted most of his oral submissions to arguments that relate more to procedure than substance. Relying on Conille andsubsequent cases, he argues that CIC has not provided satisfactory justification for the three-year delay in processing the application.Initially, CIC responded to his inquiries about the status of his application by merely stating that it was still being processed. It is only inresponse to this application for judicial review that CIC disclosed that his application had been suspended pursuant to

section 13.1.Moreover, CIC’s affiants merely stated that Mr. Niu’s mother "“remains the subject of a revocation investigation under the new processpursuant to ss. 10(1) of the Citizenship Act.”" Mr. Niu submits that the delay in the processing of his application cannot be justified by amere statement that an investigation is underway, without more information as to the grounds for the investigation and the timeline forthe revocation process. [12] CIC is not required to give notice when it suspends the processing of an application under

section 13.1. After all, invoking section13.1 does not amount to a decision on an application for citizenship – it merely delays the decision. When the applicant makes aninquiry, however, CIC should tell the truth about the status of the application, unless there is reason to believe that revealing theinformation would compromise the investigation in that particular case (see, by analogy, Lam v Canada (Minister of Citizenship andImmigration), (FC) at para 23). A blanket policy to the effect that suspensions under

section 13.1 are kept secret is notacceptable. In this case, CIC should have told Mr. Niu that his citizenship application was suspended. The failure to do so, however, doesnot entitle Mr. Niu to mandamus. The governing question is whether CIC’s resort to

section 13.1 was reasonable. [13] Mr. Niu relies on Conille, which set up a three-part test to ascertain whether the delay in processing a citizenship application wasjustifiable. Conille, however, pre-dates

section 13.1 of the Act. At that time,

section 17 of the Act, now repealed, provided thatapplications for citizenship could be suspended for a maximum period of six months where information necessary to determine theapplication was missing. This Court has held that there was no authority to suspend an application outside of

section 17 (Valverde vCanada (Citizenship and Immigration), 2015 FC 1111 at paras 51-52). Moreover, this Court was prepared to grant mandamus where,roughly, the delay in processing a citizenship application exceeded three years (see, for example, Conille; Gondara v Canada(Citizenship and Immigration), 2006 FC 204; Stanizai). Parliament appears to have enacted

section 13.1 to overcome the limitationsflowing from Conille and subsequent cases. Hence, the Conille test does not apply when

section 13.1 is validly invoked. [14] Does it follow, as Mr. Niu contends, that a citizenship application can be suspended indefinitely on the bald assertion that there isan ongoing investigation that might affect its outcome? I would not go that far. As any governmental power, the power granted bysection 13.1 remains subject to judicial review. The principles of administrative law remain applicable. If, for example, an investigationbears no relationship with a person’s entitlement to citizenship, a suspension based on

section 13.1 might be substantively unreasonable.Likewise, if the suspension remains in effect for a longer time than "“is necessary,”" to use the wording of

section 13.1, it might also

become unreasonable. I would only add that i n those cases, the burden of proving the relevant facts lies on the applicant. [ 15 ] In this case, both parties appear to have decided to file as little information as possible in evidence. As a result, I know very little about the investigation into Mr. Niu’s mother’s citizenship, the grounds for that investigation or the timeline for the citizenship revocation process going forward.

What I know is that a portion of that delay, possibly a major portion, is attributable to the fact that the validity of the citizenship revocation process was challenged before this Court and that Parliament enacted remedial legislation to respond to this Court’s judgment. In those circumstances, I am not prepared to hold that the three-year delay in processing Mr. Niu’s application is unreasonable. In the absence of more precise evidence, I am not prepared either to predict that the citizenship revocation process against Mr.

Niu’s mother will result in unreasonable delays. [ 16 ] Accordingly, this application for judicial review will be dismissed. [ 17 ] At the end of the hearing, I asked both parties whether they proposed a question for certification under

section 22.2 (

d) of the Act . According to the Federal Court of Appeal, " “to be certified, a question must (

i) be dispositive of the appeal and (ii) transcend the interests of the immediate parties to the litigation, as well as contemplate issues of broad significance or general importance” " ( Mudrak v Canada (Citizenship and Immigration) , 2016 FCA 178 at para 16 ). The parties were unable to say whether there are similar pending cases. As a result, I am not persuaded that the questions at issue here are of " “broad significance or general importance.” " Thus, I decline to certify a question.

JUDGMENT THIS COURT’S JUDGMENT is that 1. the application for judicial review is dismissed; 2. no question is certified. “Sébastien Grammond” Judge FEDERAL COURT SOLICITORS OF RECORD Docket: T-121-17 STYLE OF CAUSE: ALEN NIU v MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: May 10, 2018 JUDGMENT AND reasons: GRAMMOND J. DATED: May 17, 2018 APPEARANCES : Aris Daghighian For The Applicant Alison Engel-Yan For The Respondent SOLICITORS OF RECORD : Green and Spiegel LLP Barristers and Solicitors Toronto, Ontario For The Applicant

Attorney General of Canada Ottawa, Ontario For The Respondent