Godinez Ovalle v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. TBEd. AU.014

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: July 08, 2015
• Jurisdiction: Canada (Federal)
• Citations: [2015] F.T.R. TBEd. AU.014;2015 FC 935

Godinez Ovalle v. Can. (M.C.I.), [2015] F.T.R. TBEd. AU.014

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Currently being edited for F.T.R. - judgment temporarily in rough form.

[French language version follows English language version]

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Temp. Cite: [2015] F.T.R. TBEd. AU.014

Otto Raul Godinez Ovalle (applicant) v. The Minister of Citizenship and Immigration (respondent)

(T-2186-14; 2015 FC 935; 2015 CF 935)

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

Federal Court

Russell, J.

July 30, 2015.

Summary:

The applicant, a Guatemalan citizen, arrived in Canada in 2002 and received refugee status in 2003. He became a permanent resident in 2005. In 2012, the applicant applied for citizenship and was interviewed by a Citizenship and Immigration (CIC) officer in February 2014. In March 2014, the CIC officer contacted Canada Border Services Agency (CBSA) regarding the applicant's absences from Canada. CBSA invited the applicant for an interview, but refused the applicant's request for disclosure prior to the interview. The interview was cancelled. On October 23, 2014, the applicant applied for a writ of mandamus to compel the processing of his citizenship application. On the same date, the CIC officer suspended the processing of the applicant's citizenship application under s. 13.1 of the Citizenship Act, pending CBSA's investigation. In December 2014, CBSA applied for cessation of the applicant's refugee status on the basis of re-availment. At that point, the applicant received notice that his citizenship application was suspended.

The Federal Court granted an order for mandamus. The suspension of the applicant's citizenship application was vacated. CIC was to immediately notify the applicant of any deficiencies in the application and allow him reasonable time to remedy those deficiencies, following which the file was to be immediately referred to a citizenship judge for a decision, which was to be rendered within 30 days.

Administrative Law - Topic 3503

Judicial review - Mandamus - General - When available - The applicant's citizenship application was suspended under s. 13.1 of the Citizenship Act by a Citizenship and Immigration (CIC) officer, pending an investigation by Canada Border Services Agency (CBSA) regarding the cessation of the applicant's refugee status on the basis of re-availment - The applicant sought a writ of mandamus to compel CIC to process his application - The Federal Court allowed the application - Section 13.1 allowed suspension beyond the narrow security and admissibility context and permitted it "for as long as necessary" to receive information or the results of an investigation - However, the suspension's purpose here was to allow CBSA to conduct cessation proceedings that might result in the applicant losing permanent resident status - Neither the prior s. 17 of the Citizenship Act nor the present s. 13.1 authorized suspension for that purpose - Suspending the citizenship application to give CBSA time to strip the applicant of his permanent resident status was a "misplaced and abusive use of s. 13.1" that "would be devastating and inhumane" - Bringing cessation proceedings after years of delay was contrary to Canada's international obligations and to the Immigration and Refugee Protection Act - The Minister was bound by s. 5(1) of the Citizenship Act to process the citizenship application - The delay here was unreasonable, unfair and an abuse of process - The applicant's file was complete - He had fulfilled the statutory requirements for citizenship - Mandamus was warranted - No other remedy was adequate - The order had a practical value - There was no equitable bar - Given the inordinate delay here and the possible consequences of that delay on the applicant's rights, the court imposed timing restrictions in the order - See paragraphs 39 to 82.

Administrative Law - Topic 3553

Judicial review - Mandamus - Conditions precedent - Existence of a duty - [See Administrative Law - Topic 3503 ].

Administrative Law - Topic 3705

Judicial review - Mandamus - Mandamus to government and executive - Ministers of the Crown - [See Administrative Law - Topic 3503 ].

Aliens - Topic 2503

Naturalization - General - Duty of authorities to process applications - [See Administrative Law - Topic 3503 ].

Aliens - Topic 2513

Naturalization - General - Time for determination of application (incl. where applicant subject to removal order) - [See Administrative Law - Topic 3503 ].

Cases Noticed:

Dragan v. Canada (Minister of Citizenship and Immigration) (2003), 227 F.T.R. 272; 2003 FCT 211, refd to. [para. 14].

Stanizai v. Canada (Minister of Citizenship and Immigration) (2014), 446 F.T.R. 188; 2014 FC 74, refd to. [para. 15].

Conille v. Canada (Ministre de la Citoyenneté et de l'Immigration), [1999] 2 F.C. 33; 159 F.T.R. 215 (T.D.), refd to. [para. 15].

Murad v. Canada (Minister of Citizenship and Immigration) (2013), 441 F.T.R. 216; 2013 FC 1089, refd to. [para. 18].

Magalong v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. TBEd. OC.031; 2014 FC 966, refd to. [para. 18].

Roncarelli v. Duplessis, [1959] S.C.R. 121, refd to. [para. 19].

Bermudez v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. TBEd. MY.067; 2015 FC 639, refd to. [para. 25].

Kaur v. Canada (Minister of Citizenship and Immigration), [2002] F.T.R. Uned. 680; 2002 FCT 1040, refd to. [para. 28].

Apotex Inc. v. Merck & Co. and Merck Frosst Canada Inc., [1994] 1 F.C. 742; 162 N.R. 177 (F.C.A.), refd to. [para. 28].

Tumarkin v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. TBEd. SE.027; 2014 FC 915, refd to. [para. 29].

Victoria v. Canada (Minister of Citizenship and Immigration) (2006), 297 F.T.R. 85; 2006 FC 857, refd to. [para. 31].

Wang v. Canada (Minister of Citizenship and Immigration) (2010), 373 F.T.R. 223; 2010 FC 841, refd to. [para. 31].

Li v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. TBEd. AP.047; 2015 FC 459, refd to. [para. 38].

Olvera Romero v. Canada (Minister of Citizenship and Immigration) (2014), 458 F.T.R. 239; 2014 FC 671, refd to. [para. 38].

Statutes Noticed:

Citizenship Act, R.S.C. 1985, c. C-29, sect. 5(1), sect. 13.1 [para. 10].

Counsel:

Maria Sokolova, for the applicant;

Hilla Aharon, for the respondent.

Solicitors of Record:

Maria Sokolova, Vancouver, British Columbia, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Vancouver, British Columbia, for the respondent.

This application was heard at Vancouver, British Columbia, on July 8, 2015, by Russell, J., of the Federal Court, who delivered the following reasons for judgment at Ottawa, Ontario, on July 30, 2015.