Canada (Minister of Citizenship and Immigration) v. Rogan, (2011) 396 F.T.R. 47 (FC)

• Judge: Mactavish, J.
• Court: Federal Court (Canada)
• Case Date: May 05, 2011
• Jurisdiction: Canada (Federal)
• Citations: (2011), 396 F.T.R. 47 (FC);2011 FC 1007

Can. (M.C.I.) v. Rogan (2011), 396 F.T.R. 47 (FC)

MLB headnote and full text

Temp. Cite: [2011] F.T.R. TBEd. AU.024

The Minister of Citizenship and Immigration (plaintiff) v. Branko Rogan (defendant)

(T-1769-07; 2011 FC 1007)

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

Federal Court

Mactavish, J.

August 18, 2011.

Summary:

The Minister of Citizenship and Immigration commenced proceedings under the Citizenship Act to revoke Rogan's citizenship. On a reference under s. 18(1)(b) of the Citizenship Act, the Minister sought a declaration that Rogan obtained his Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances.

The Federal Court granted the declaration.

Aliens - Topic 2504

Naturalization - General - Revocation (incl. loss of citizenship) - Rogan came to Canada as a refugee from war-torn Bosnia-Herzegovina in 1994 - He obtained Canadian citizenship three years later - In 2007, the Minister of Citizenship and Immigration commenced citizenship revocation proceedings and sought a declaration that Rogan obtained his citizenship by false representation or fraud or by knowingly concealing material circumstances - The Federal Court granted the declaration - The court found that: (1) Rogan was a reserve police officer and a guard at detention facilities in Bosnia-Herzegovina in June and July 1992; (2) Muslim males were arrested and detained during this period without cause and that Rogan knew of that fact; (3) the prisoners were kept in inhumane conditions and abused and that Rogan was aware of that; and (4), Rogan participated, both directly and indirectly, in the mistreatment and torture of the prisoners - Rogan knowingly concealed this information from Canadian immigration officials in his permanent resident application - Thus, Rogan obtained his Canadian citizenship by false representation or fraud or by knowingly concealing material information.

Aliens - Topic 2504

Naturalization - General - Revocation (incl. loss of citizenship) - The Minister of Citizenship and Immigration could refer to the Federal Court the determination of whether a citizen obtained citizenship by fraudulent means (Citizenship Act, s. 18(1)(b)) - The Federal Court stated that a s. 18(1)(b) reference was not an action in the conventional sense - Rather, it was essentially an investigative proceeding used to collect evidence of facts surrounding the acquisition of citizenship, for determining whether it was fraudulently obtained - The court's findings under s. 18(1)(b) could not be appealed - While the court's factual findings were not determinative of any legal rights, they might form the basis of a Ministerial report to the Governor in Council requesting the revocation of citizenship - The ultimate revocation decision rested solely with the Governor in Council - A decision by the Governor in Council to revoke citizenship could be judicially reviewed - See paragraphs 13 to 15.

Aliens - Topic 2504

Naturalization - General - Revocation (incl. loss of citizenship) - The Federal Court explained that s. 10(1) of the Citizenship Act allowed the Governor in Council to revoke citizenship if satisfied, on the basis of a report from the Minister of Citizenship and Immigration, that the person obtained his or her citizenship by false representation or fraud or by knowingly concealing material circumstances - Section 10(2) addressed the situation where an individual did not misrepresent or conceal material information at the time that he obtained his Canadian citizenship, but did so in the course of being admitted to Canada for permanent residence - Section 10(2) deemed such an individual to have obtained his citizenship by false representation or fraud or by knowingly concealing material circumstances if he was "lawfully admitted to Canada for permanent residence by false representation or fraud or by knowingly concealing material circumstances", and, because of that admission, subsequently obtained his citizenship - See paragraphs 17 to 20.

Aliens - Topic 2504

Naturalization - General - Revocation (incl. loss of citizenship) - Rogan immigrated to Canada in 1994 and obtained citizenship three years later - In 2007, the Minister of Citizenship and Immigration commenced citizenship revocation proceedings and sought a declaration that Rogan obtained his citizenship fraudulently or by concealing material circumstances - The Federal Court stated that substantive rights were governed by the Citizenship Act in effect when he obtained his citizenship on November 14, 1997 (i.e., the Citizenship Act, 1985) - Section 5(1) of the Citizenship Act, 1985 set out the criteria for obtaining a certificate of citizenship in 1997, including the requirement that Rogan satisfy the Minister that he had "been lawfully admitted to Canada for permanent residence" (s. 5(1)(c)) - Thus, the lawfulness of admission to Canada was a condition precedent to the acquisition of Canadian citizenship - Rogan's substantive rights were also governed by the Immigration Act (1985) that was in force when he applied for permanent residence in January 1994, and when he entered Canada some three months later - See paragraphs 21 to 23.

Aliens - Topic 2504

Naturalization - General - Revocation (incl. loss of citizenship) - The Minister of Citizenship and Immigration could refer to the Federal Court the determination of whether a citizen obtained citizenship by fraudulent means (Citizenship Act, s. 18(1)(b)) - The Federal Court stated that the burden was on the Minister to demonstrate, on a balance of probabilities, that a person obtained their citizenship by false representation or fraud or by knowingly concealing material circumstances - See paragraphs 24 to 29.

Aliens - Topic 2504

Naturalization - General - Revocation (incl. loss of citizenship) - The Federal Court explained that s. 10(1) of the Citizenship Act allowed the Governor in Council to revoke citizenship if satisfied, on the basis of a report from the Minister of Citizenship and Immigration, that the person obtained his or her citizenship by false representation or fraud or by knowingly concealing material circumstances - Section 10(2) addressed the situation where an individual did not misrepresent or conceal material information at the time that he obtained his Canadian citizenship, but did so in the course of being admitted to Canada for permanent residence - The Federal Court discussed what had to be established in order to find that there had been a false representation or fraud or a knowing concealment of material circumstances within the meaning of s. 10 - See paragraphs 30 to 35.

Aliens - Topic 2562

Naturalization - Appeals and judicial review - Scope of appeal or review - [See second Aliens - Topic 2504 ].

Cases Noticed:

Canada (Ministre de la Citoyenneté et de l'Immigration) v. Obodzinsky, [2003] 2 F.C. 657; 305 N.R. 238; 2002 FCA 518, refd to. [para. 13].

Canada (Minister of Citizenship and Immigration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81, refd to. [para. 15].

Canada (Secretary of State) v. Luitjens (1992), 142 N.R. 173; 9 C.R.R.(2d) 149 (F.C.A.), refd to. [para. 15].

Canada (Minister of Citizenship and Immigration) v. Furman (2006), 298 F.T.R. 163; 2006 FC 993, refd to. [para. 16].

Canada (Minister of Citizenship and Immigration) v. Bogutin (1998), 144 F.T.R. 1; 42 Imm. L.R.(2d) 248 (T.D.), refd to. [para. 21].

Canada (Minister of Citizenship and Immigration) v. Skomatchuk, [2006] F.T.R. Uned. 893; 2006 FC 994, refd to. [para. 21].

Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358; 208 N.R. 81, refd to. [para. 25].

Canada (Secretary of State) v. Luitjens (1991), 46 F.T.R. 267 (T.D.), refd to. [para. 27].

Canada (Minister of Citizenship and Immigration) v. Obodzinsky (2003), 246 F.T.R. 180; 2003 FC 1080, refd to. [para. 27].

Canada (Minister of Citizenship and Immigration) v. Baumgartner (2001), 211 F.T.R. 197; 2001 FCT 970, refd to. [para. 27].

Canada (Minister of Citizenship and Immigration) v. Odynsky (2001), 196 F.T.R. 1; 2001 FCT 138, refd to. [para. 27].

Canada (Minister of Citizenship and Immigration) v. Oberlander (2000), 185 F.T.R. 41 (T.D.), refd to. [para. 27].

Canada (Minister of Citizenship and Immigration) v. Kisluk (1999), 169 F.T.R. 161 (T.D.), refd to. [para. 27].

Canada (Minister of Citizenship and Immigration) v. Katriuk (1999), 156 F.T.R. 161 (T.D.), refd to. [para. 27].

Canada (Minister of Citizenship and Immigration) v. Schneeberger (2003), 238 F.T.R. 85; 2003 FC 970, refd to. [para. 29].

Canada (Minister of Citizenship and Immigration) v. Coomar (1998), 159 F.T.R. 37 (T.D.), refd to. [para. 29].

Minister of Manpower and Immigration v. Brooks, [1974] S.C.R. 850, refd to. [para. 31].

Canada (Minister of Citizenship and Immigration) v. Wysocki (2003), 250 F.T.R. 174; 2003 FC 1172, refd to. [para. 31].

Canada (Minister of State for Multiculturalism and Citizenship) v. Minhas (1993), 66 F.T.R. 155; 21 Imm. L.R.(2d) 31 (T.D.), refd to. [para. 34].

Canada (Minister of Citizenship and Immigration) v. Phan (2003), 240 F.T.R. 239; 2003 FC 1194, refd to. [para. 35].

Prosecutor v. Mom ilo Krajišnik (2006), Case No. IT-00-39-T (ICTY), refd to. [para. 171].

Mugesera et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2005] 2 S.C.R. 100; 335 N.R. 229; 2005 SCC 40, refd to. [para. 253].

Ramirez v. Minister of Employment and Immigration, [1992] 2 F.C. 306; 135 N.R. 390 (F.C.A.), refd to. [para. 378].

Prosecutor v. Milorad Krnojelac (2002), Case No. IT-97-25-T (ICTY), refd to. [para. 389].

Oberlander v. Canada (Attorney General) (2009), 396 N.R. 146; 2009 FCA 330, refd to. [para. 407].

Statutes Noticed:

Citizenship Act, R.S.C. 1985, c. C-29, sect. 18(1)(b) [para. 13, Appendix].

Counsel:

Rosemarie Schipizky, John McManus and Hilla Aharon, for the plaintiff;

Branko Rogan, self-represented.

Solicitors of Record:

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the plaintiff.

This matter was heard in Vancouver, British Columbia, on April 11-15, 18-21 and 27 and May 5, 2011, before Mactavish, J., of the Federal Court, who delivered the following decision on August 18, 2011.