DAVIS WILLIAM LEZAMA CERNA Applicant v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2019 FC 756

Date: 20190529 Docket: T-239-18 Citation: 2019 FC 756 Vancouver, British Columbia, May 29, 2019 PRESENT: The Honourable Mr. Justice Campbell BETWEEN: DAVIS WILLIAM LEZAMA CERNA Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent JUDGMENT AND REASONS [ 1 ] The present Application is for judicial review of a decision to suspend the Applicant’s citizenship application. The Applicant seeks an order of mandamus compelling the Minister of Citizenship and Immigration (Minister) to resume processing the Applicant’s application for citizenship. I.

OVERVIEW [ 2 ] The essential issue is whether the suspension of the Applicant’s application for citizenship is unlawful and therefore, whether there is a public duty requiring the Minister to continue processing the application. These questions engage the issue of the proper

interpretation of the transitional provisions of the Strengthening Canadian Citizenship Act, S.C. 2014, c. 22 ( SCCA ) and s. 13.1 of the Citizenship Act, RSC 1985, c C-29 ( Citizenship Act ), which were recently clarified by the Federal Court of Appeal (FCA) in GPP c Canada (Citoyenneté et Immigration) , 2019 CAF 71 ( GPP) . [ 3 ] For the reasons that follow, I find that I cannot grant an order of mandamus . II. BACKGROUND [ 4 ] The Applicant is a citizen of Peru. In 2006, he entered Canada and claimed refugee status. The Refugee Protection Division (RPD) found that he was a Convention refugee in 2008.

He was granted permanent residence status in Canada in 2009. [ 5 ] The Applicant applied for Canadian citizenship in May 2012. In his application, he declared that he had travelled to Peru on multiple occasions in the four years prior to his application for citizenship. After clearing the initial immigration, security and criminal record clearances, the Applicant’s citizenship application was forwarded to Citizenship and Immigration Canada (CIC), as it was then known. On September 19, 2013, a CIC Officer interviewed the Applicant and he passed his citizenship test that same day.

However, the Officer did not refer the application to a citizenship judge for a decision because of concerns about the possible cessation of the Applicant’s refugee protection because he had reavailed to Peru. On October 11, 2013, without notice to the Applicant, the Applicant’s file was placed " “on hold” " . At this time, the Officer did not have the statutory authority to put the application on hold and should have forwarded it to a citizenship judge (see e.g.

Valverde v Canada (Minister of Citizenship and Immigration), 2015 FC 1111 , para 47 ). [ 6 ] On August 1, 2014, pursuant to the SCCA, s. 13.1 of the Citizenship Act came into effect. It states: " 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.

" [ 7 ] It is important to note that on November 18, 2014, after s. 13.1 came into effect, the Officer formally suspended the Applicant’s application, once again without notice to the Applicant (Respondent’s Record, Affidavit of Andrea Ebbels, para 29). [ 8 ] Meanwhile, on October 22, 2013, the Canada Border Services Agency (CBSA) filed an application with the RPD for cessation of refugee protection, pursuant to section 108(2) of the Immigration and Refugee Protection Act, SC 2001, c 27 ( IRPA ). The RPD allowed CBSA’s application on October 2, 2014.

On September 15, 2015, Justice O’Reilly of this Court allowed the Applicant’s application for judicial review of the cessation decision and referred the matter back for a redetermination hearing before the RPD. The redetermination hearing scheduled for November 7, 2017 was adjourned to February 19, 2018. [ 9 ] On February 9, 2018, the Applicant commenced the present Application. On February 19, 2018, on the Applicant’s motion, the RPD adjourned the outstanding cessation redetermination sine die pending the resolution of the present Application.

In essence, the Applicant seeks an order of mandamus so that his citizenship application can be processed to conclusion before the resumption of his cessation proceedings. III. THE DECISION IN GPP [ 10 ] To stay abreast with the evolution of the

interpretation of s. 13.1, the determination of the present Application was adjourned on November 5, 2018 pending the FCA’s decision in GPP . [ 11 ] In GPP at paragraph 1 , the FCA answered " “yes” " to the following certified question: Does

section 13.1 of the Citizenship Act , R.S.C., 1985, c. C-29 , allow the Minister to suspend an application for citizenship made before August 1, 2014, that was not finally disposed of before that day? [ 12 ] In so doing, the FCA upheld the decision of Madam Justice Roussel in GPP v Canada (Citizenship and Immigration), 2018 FC 562 and her

interpretation of s. 13.1 and the transitional provisions in s. 31 of the SCCA . At paragraphs 38-40 of her decision, Madam Justice Roussel stated the following regarding Parliament’s intention in introducing s. 13.1: [38] The

interpretation of the immediate application proposed by the Minister is in line with the legislator’s intention, as evidenced by an excerpt from parliamentary debates regarding the bill on June 3, 2014. The Parliamentary Secretary to the Minister indicated at the time that “[t]he new authorities under proposed sections 13.1 and 13.2 [would] apply to applications that are under processing at the time of the coming into force of these provisions” (Standing Committee on Citizenship and Immigration, CIMM Number 031, 2nd Session, 41st Parliament, Evidence, Tuesday, June 3, 2014, at page 9). [39] Furthermore, this

interpretation is also consistent with the

summary of the Strengthening Canadian Citizenship Act , which states that the amendments to provisions governing the processing of applications and the review of decisions aim to expand the number of cases where the processing of an application may be suspended and modify the period for the suspension (see paragraph (

b) of the third

section of the

summary). [40] Lastly, the Court is of the opinion that had the legislator taken the applicant’s position, it would have been simpler to provide for applications for citizenship to be governed by the version of the Citizenship Act that existed at the time of their filing.

Rather, the legislator provided for a provision allowing not only applicants to retain a vested right for their application to be governed by residency criteria applicable at the time that their application is made, but also authorities to have the tools and time they need to investigate the eligibility of an applicant to make an application for citizenship. [ 13 ] Thus, Parliament’s intention is an important contextual factor in determining the present Application. IV. THE ARGUMENTS A. The Applicant [ 14 ] The Applicant advances the following arguments.

The suspension of his citizenship application pending the determination of cessation proceedings was not lawful in September 2013. Under s. 5(1) of the Citizenship Act and s. 11(1) and (5) of the Citizenship Regulations, SOR/93-24, as they read at the time, his Application should have been forwarded to a citizenship judge for consideration in September 2013. Suspensions for the purpose of investigating possible cessation processing did not become lawful until s. 13.1 of the Citizenship Act came into force. The Applicant relies on two Federal Court cases with similar facts where the Court ordered mandamus .

In both cases, the Minister had suspended processing the applicant’s citizenship application prior to the new provision coming into force: Valverde v Canada (Minister of Citizenship and Immigration), 2015 FC 1111 and Godinez Ovalle v Canada (Minister of Citizenship and Immigration), 2015 FC 935 . [ 15 ] Accordingly, the following approach was adopted in the narrative advanced in the Applicant’s Notice of Application for Leave and

for Judicial Review, filed on February 9, 2018: Given that Canadian citizenship under both current and prior legislation "shall" be granted once earned, any period of timewhere that was unlawfully suspended raises a legitimate issue, notwithstanding the change of law on August 1, 2014, in amandamus application. It is asserted that an unlawful suspension where citizenship was fully earned and ought to have beengranted cannot become a lawful suspension due to the passage of time or a change in law, especially where the Applicant isnot notified that it is under suspension. [16] After the publication of the FCA’s decision in GPP, the Applicant’s argument progressed to focus on the FCA’s

interpretation of s.13.1 and the transitional provisions found at s. 31 of the SCCA. The Applicant requests that this Court finds GPP was wrongly decided.In the alternative, the Applicant argues that while the FCA has determined that the Minister has the authority to suspend applicationsmade and not finally disposed of before August 1, 2014, it has not determined in which cases that authority must or ought to be exercised(Applicant’s Amended Further Memorandum, paras 22-23).

The Applicant further argues that when the FCA said "“allow”", it did notmean in every circumstance and this case can be differentiated from the facts in GPP. B. The Respondent [17] The Respondent argues that the continued suspension of the Applicant’s application for Canadian citizenship pursuant to s. 13.1 ofthe Citizenship Act is lawful: The Respondent Minister’s suspension of the Applicant’s application for Canadian citizenship pursuant to

section 13.1 ofthe Citizenship Act is lawful pending the resolution of the proceedings before the Refugee Protection Division for thepossible cessation of the Applicant’s refugee protection pursuant to section 108(2) of the Immigration and RefugeeProtection Act. The Federal Court of Appeal has ruled in Canada (Citizenship and Immigration) v. Nilam [2017 FCA 44] that the Ministermay suspend an application for Canadian citizenship under

section 13.1 pending the resolution of cessation proceedings.The Federal Court of Appeal has now ruled in GPP v. Canada (Citoyenneté et Immigration) that the Minister’s authority tosuspend an application for Canadian citizenship pursuant to

section 13.1 applies to all applications “not finally disposed of”prior to August 1, 2014. These rulings are binding on this Court and are determinative of this proceeding. The Applicant admits that, as of August 1, 2014, and to the current day, his application for Canadian citizenship is “notfinally disposed of.” This application for mandamus must therefore fail, as the Minister has no public duty to resume processing the Applicant’sapplication for Canadian citizenship that is lawfully suspended under

section 13.1 of the Citizenship Act. [Emphasis added] (Respondent’s Amended Further Memorandum of Argument, paras 1-5) [18] In Nilam, relied on by the Respondent, the FCA made the following statement at paragraphs 26 and 27: Finally,

section 13.1 of the Citizenship Act allows the Minister to suspend the processing of an application for citizenship“for as long as necessary”. Specifically, the Minister has the power to place a hold on citizenship applications where thereare admissibility concerns under IRPA. Sections 40.1 and 44 of IRPA label cessation as an admissibility issue, and one thatmay result in removal from Canada. In the present case, the Minister’s actions were thus permitted in at least two ways bythe language of subsection 13.1(

a) of the Citizenship Act: as awaiting “the results of any investigation or inquiry for thepurpose of ascertaining … whether the applicant should be the subject of an admissibility hearing or a removal order underthe Immigration and Refugee Protection Act …” [emphasis added]. As such, it follows that the Minister’s

interpretation tothe effect that

section 13.1 of the Citizenship Act allows him to suspend the processing of an application of citizenship forpermanent residents whose refugee status has been challenged for cessation is reasonable and reflects Parliament’s intention. Given this conclusion, it further follows that the Minister does not have a public legal duty to continue processing therespondent’s application notwithstanding that the RPD cessation proceedings have yet to be determined. Because having a“public legal duty” is the first part of the test for mandamus as set out by this Court in Apotex Inc. v.

Canada (AttorneyGeneral), (FCA), [1994] 1 F.C. 742, [1993] F.C.J. No. 1098 (C.A.) (QL), the test for mandamus is notmet. The Judge’s order for mandamus cannot stand. [Emphasis added] V. CONCLUSION [19] I agree with the entirety of the Respondent’s argument. I am bound by the FCA’s decisions in Nilam and GPP and, therefore, I findthat the Minister has authority to suspend the processing of the Applicant’s citizenship application pursuant to s. 13.1. As a result, thepresent Application for an order for mandamus is dismissed. VI. PROPOSED QUESTION FOR CERTIFICATION

[ 20 ] The Applicant has proposed the following question for certification: Do the transitional provisions of the SCCA , once s. 13.1 of the Citizenship Act came into force on August 1, 2014, serve to either retroactively or retrospectively authorize a suspension of a citizenship application made, but not finally disposed of, before August 1, 2014, where the Application was required to be disposed of prior to August 1, 2014, under the law in effect at that time? [ 21 ] In the hearing of the present Application, the Applicant argued that the proposed question is different than that determined in GPP and while Parliament may have intended for s. 13.1 to have a retrospective effect, it is in fact having a retroactive effect on individuals such as the Applicant who should have had citizenship before August 1, 2014.

The Applicant argues that the FCA in GPP would have struggled to apply the certified question it answered to the facts of this case. [ 22 ] The Respondent argues that this question is simply a variant of the one decided by the FCA in GPP. To certify this question would be asking the FCA to essentially reconsider the decision that it made in GPP. [ 23 ] I agree with the Respondent’s argument, and, therefore, decline to certify the question proposed. JUDGMENT in T-239-18 THIS COURT’S JUDGMENT is that the present Application for judicial review is dismissed. There is no question to certify. "Douglas R.

Campbell" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-239-18 STYLE OF CAUSE: DAVIS WILLIAM LEZAMA CERNA v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Vancouver, British Columbia DATE OF HEARING: November 5, 2018, May 22, 2019 JUDGMENT AND REASONS: CAMPBELL J. DATED: may 29, 2019 APPEARANCES : Douglas Cannon For The Applicant Mark E.W. East For The Respondent SOLICITORS OF RECORD : Elgin, Cannon & Associates Vancouver, British Columbia For The Applicant The Attorney General of Canada Vancouver, British Columbia For The Respondent