Canada (Minister of Citizenship and Immigration) v. Furman, 2006 FC 993

• Judge: Snider, J.
• Court: Federal Court (Canada)
• Case Date: August 17, 2006
• Jurisdiction: Canada (Federal)
• Citations: 2006 FC 993;(2006), 298 F.T.R. 163 (FC)

Can. (M.C.I.) v. Furman (2006), 298 F.T.R. 163 (FC)

MLB headnote and full text

Temp. Cite: [2006] F.T.R. TBEd. AU.038

The Minister of Citizenship and Immigration (plaintiff) v. Josef Furman (defendant)

(T-560-04; 2006 FC 993)

Indexed As: Canada (Minister of Citizenship and Immigration) v. Furman

Federal Court

Snider, J.

August 17, 2006.

Summary:

Furman, who was 87 years old and originally from the Ukraine, came to Canada in July 1949 from Germany, where he had lived since 1942. He became a Canadian citizen in 1957. In 2006, Furman was living in Edmonton in a long-term care facility and suffered from dementia. The Minister of Citizenship and Immigration commenced an action to revoke Furman's citizenship on the basis that he was admitted to Canada and obtained his citizenship by false representations or fraud or by knowingly concealing material circumstances (i.e., that he failed to disclose a change in his surname and his involvement with the Third Reich during World War II).

The Federal Court held that it was satisfied, on a balance of probabilities, that Furman was an SS guardsman of the Third Reich, during which time he was engaged in the elimination of the Warsaw and Bialystok ghettos and as a concentration camp guard. He failed to disclose that information to immigration officials at the time he came to Canada (i.e., he obtained his Canadian citizenship by false representation or fraud or by knowingly concealing material information) within the meaning of s. 18(1)(b) of the Citizenship Act. Although this conclusion was sufficient to dispose of the matter, for greater clarity the court also held that Furman was: not lawfully admitted to Canada; did not acquire Canadian domicile; and, was not a person of good character - all of which are contrary to the Immigration Act, 1948. The court was not persuaded that Furman failed to disclose the change in his surname from Furmanchuk to Furman.

Aliens - Topic 2504

Naturalization - Revocation (incl. loss of citizenship) - The Federal Court reviewed the legal framework for revocation of citizenship on the basis that an individual obtained his Canadian citizenship by false representation or fraud or by knowingly concealing material information (i.e., Citizenship Act, 1985, ss. 10(1), 10(2) and 18) - See paragraphs 9 to 25.

Aliens - Topic 2504

Naturalization - Revocation (incl. loss of citizenship) - Pursuant to s. 10(1) of the Citizenship Act (1985), the Minister of Citizenship and Immigration could make a report to the Governor in Council to the effect that a person had obtained their citizenship "under this Act" by false representation or fraud or by knowingly concealing material circumstances - If the Governor in Council was then satisfied that the person obtained their citizenship in such a manner, "the person ceases to be a citizen" - The Federal Court stated that "it is settled that the expression 'under this Act', where it appears in s. 10(1) of the Citizenship Act, 1985, must be interpreted as 'under this Act, the Citizenship Act, as enacted from time to time ... ' . That is, a misrepresentation under a former Citizenship Act is caught by s. 10(1) of the Citizenship Act, 1985" - See paragraphs 10 and 11.

Aliens - Topic 2504

Naturalization - Revocation (incl. loss of citizenship) - The Federal Court stated that a determination by the court under s. 18 of the Citizenship Act that an individual had obtained their citizenship by false representation or fraud or by knowingly concealing material circumstances "... does not, in itself, constitute a decision to revoke or terminate the citizenship of a person. Rather, the decision of this Court provides the Minister with a factual basis for the report and may constitute the foundation of a decision of the Governor in Council. Only the Governor in Council has the duty and power to decide whether to revoke citizenship. While the decision made by this Court under s. 18 is final and cannot be appealed (Citizenship Act, 1985, s. 18(3)), a decision of the Governor in Council may be judicially reviewed ... " - See paragraph 15.

Aliens - Topic 2504

Naturalization - Revocation (incl. loss of citizenship) - The Federal Court stated that the burden of proof rested on the Minister of Citizenship in revocation proceedings, the standard of proof being the civil standard of balance of probabilities - The court noted however that where the allegations of conduct against the individual involved were morally blame-worthy and had serious consequences for the individual, the court had to take great care in assessing the evidence - See paragraphs 21 to 25.

Aliens - Topic 2504

Naturalization - Revocation (incl. loss of citizenship) - The Minister of Citizenship and Immigration commenced citizenship revocation proceedings against an 87 year old man, Furman, claiming that he obtained his citizenship by fraudulent means when he failed to disclose his involvement as a guardsman for the Third Reich during World War II - During the proceedings, the Federal Court admitted into evidence photocopies of transfer lists containing a record of the transfer of guardsmen between a training camp and other labour camps, concentration camps or SS formations - The court stated that the transfer lists were a reliable source of information on the existence and movement of SS Guardsmen from the Trawniki Training Camp - See paragraphs 98 to 100.

Aliens - Topic 2504

Naturalization - Revocation (incl. loss of citizenship) - Furman, who was 87 years old and originally from the Ukraine, came to Canada in July 1949 from Germany, where he had lived since 1942 - He became a Canadian citizen in 1957 - In 2006, Furman was living in Edmonton in a long-term care facility and suffered from dementia - The Minister of Citizenship and Immigration commenced citizenship revocation proceedings - The Federal Court held that it was satisfied, on a balance of probabilities, that Furman was an SS guardsman of the Third Reich, during which time he was engaged in the elimination of the Warsaw and Bialystok ghettos and as a concentration camp guard - He failed to disclose that information to immigration officials at the time he came to Canada (i.e., he obtained his Canadian citizenship by false representation or fraud or by knowingly concealing material information) within the meaning of s. 18(1)(b) of the Citizenship Act - Although this conclusion was sufficient to dispose of the matter, for greater clarity the court also found that Furman was: not lawfully admitted to Canada; did not acquire Canadian domicile; and, was not a person of good character - all of which are contrary to the Immigration Act, 1948 - The court was not persuaded that Furman failed to disclose a change in his surname from Furmanchuk to Furman as alleged by the Minister.

Words and Phrases

Lawfully admitted - The Federal Court discussed the meaning of the phrase "lawfully admitted" as it was used in s. 10(1)(b) of the Citizenship Act, R.S.C. 1952, c. 33 - See paragraphs 18 to 25.

Words and Phrases

Under this Act - The Federal Court discussed the meaning of this phrase as it appeared in s. 10(1) of the Citizenship Act, R.S.C. 1985, c. C-29 - See paragraphs 10 and 11.

Cases Noticed:

Canada (Minister of Citizenship and Immigration) v. Fast (2003), 240 F.T.R. 161; 2003 FC 1139, refd to. [para. 11].

Oberlander v. Canada (Attorney General) (2004), 320 N.R. 366; 2004 FCA 213, refd to. [para. 15].

Canada (Minister of Citizenship and Immigration) v. Bogutin (1998), 144 F.T.R. 1 (T.D.), refd to. [para. 20].

Canada (Secretary of State) v. Luitjens (1991), 46 F.T.R. 267 (T.D.), refd to. [para. 23].

Canada (Minister of Citizenship and Immigration) v. Obodzinsky (2003), 246 F.T.R. 180; 2003 FC 1080, refd to. [para. 23].

Canada (Minister of Citizenship and Immigration) v. Baumgartner (2001), 211 F.T.R. 197; 2001 FCT 970, refd to. [para. 23].

Canada (Minister of Citizenship and Immigration) v. Odynsky (2001), 196 F.T.R. 1; 2001 FCT 138, refd to. [para. 23].

Canada (Minister of Citizenship and Immigration) v. Oberlander (2000), 185 F.T.R. 41 (T.D.), refd to. [para. 23].

Canada (Minister of Citizenship and Immigration) v. Kisluk (1999), 169 F.T.R. 161 (T.D.), refd to. [para. 23].

Canada (Minister of Citizenship and Immigration) v. Katriuk (1999), 156 F.T.R. 161 (T.D.), refd to. [para. 23].

H. (Minors) (Sexual Abuse: Standard of Proof) - see H. et al., Re.

H. et al., Re, [1996] A.C. 563; 192 N.R. 52 (H.L.), refd to. [para. 25].

Canada (Minister of Citizenship and Immigration) v. Skomatchuk (2006), 293  F.T.R. 150; 2006 FC 730, refd to. [para. 99].

Canada (Minister of Citizenship and Immigration) v. Dueck, [1999] 3 F.C. 203; 155 F.T.R. 1 (T.D.), refd to. [para. 186].

Minister of Manpower and Immigration v. Brooks, [1974] S.C.R. 850, refd to. [para. 202].

Statutes Noticed:

Citizenship Act, R.S.C. 1952, c. 33, sect. 10(1) [para. 17].

Citizenship Act, R.S.C. 1985, c. C-29, sect. 10(1), sect. 18(1)(b) [para. 9].

Immigration Act, R.S.C. 1952, c. 325, sect. 2(n) [para. 18]; sect. 20(2), sect. 50(f) [para. 19].

Counsel:

Marlene Thomas, Jamie Todd, Angela Marinos and Bruce Hughson, for the plaintiff;

Eric Hafemann and Paul Williams, for the defendant.

Solicitors of Record:

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the plaintiff;

Eric Hafemann, Esq., Waterloo, Ontario, for the defendant.

This matter was heard at St. Catharines, Ontario and Ottawa, Ontario, on June 5, 6, 8, 12 to 14, 19, 27 and 28, 2006, before Snider, J., of the Federal Court, who delivered the following decision on August 17, 2006.