Magalong v. Canada (Minister of Citizenship and Immigration), (2014) 465 F.T.R. 200 (FC)

• Judge: Gagné, J.
• Court: Federal Court (Canada)
• Case Date: July 21, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 465 F.T.R. 200 (FC);2014 FC 966

Magalong v. Can. (M.C.I.) (2014), 465 F.T.R. 200 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] F.T.R. TBEd. OC.031

Odilon Magalong (applicant) v. The Minister of Citizenship and Immigration (respondent)

(T-1871-13; 2014 FC 966; 2014 CF 966)

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

Federal Court

Gagné, J.

October 10, 2014.

Summary:

Magalong applied for a writ of mandamus, ordering the Minister of Citizenship and Immigration to allow him to swear his citizenship oath, notwithstanding his ineligibility resulting from his conviction for certain indictable criminal offences. In the alternative, he sought a order quashing or staying the removal and admissibility proceedings, until such time he had completed his probation and was again entitled to swear the oath of citizenship.

The Federal Court granted the application in part, quashing the decision by Citizenship and Immigration Canada to close Magalong's citizenship application. No equitable relief in the nature of a writ of mandamus was granted. The Minister was not under a statutory duty to take Magalong's oath within a specific timeframe (during the five months when he was eligible), and was not under a public duty to act under the present circumstances.

Administrative Law - Topic 3553

Judicial review - Mandamus - Conditions precedent - Existence of duty - [See Aliens - Topic 24 ].

Administrative Law - Topic 3705

Judicial review - Mandamus - Mandamus to government and executive - Ministers of the Crown - [See Aliens - Topic 24 ].

Aliens - Topic 24

Definitions and general principles - Minister of Citizenship and Immigration - Duty of - The applicant sought a writ of mandamus, ordering the Minister of Citizenship and Immigration to allow him to swear his citizenship oath - His citizenship application had been approved and granted - Before he swore his oath, he was arrested under certain provisions of the Criminal Code, and a "hold" was put on his approved citizenship application - Criminal charges were laid five months later - The applicant was now under a probation order and faced inadmissibility and removal proceedings - The Federal Court dismissed the application for equitable relief - There was no duty owed by the Minister to advise the applicant that his citizenship application had been granted and to invite him to a swearing in ceremony within a specific amount of time - However, the Minister had no right to put the granted citizenship application on "hold" - Section 5 of the Citizenship Act used mandatory language ("The Minister shall grant citizenship to any person who ...") - However, the Minister no longer had the statutory power to grant the applicant citizenship, as s. 22(1) (a)(i) of the Act prohibited the granting of citizenship to a person under a probation order - See paragraphs 40 to 54.

Aliens - Topic 2502

Naturalization - General - Interpretation of Citizenship Act - [See Aliens - Topic 24 ].

Aliens - Topic 2504

Naturalization - General - Revocation (incl. loss of citizenship) - [See Aliens - Topic 24 ].

Cases Noticed:

Dragan v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 189; 227 F.T.R. 272; 2003 FCT 211, refd to. [para. 21].

Apotex Inc. v. Merck & Co. and Merck Frosst Canada Inc., [1994] 1 F.C. 742; 162 N.R. 177 (F.C.A.), affd. [1994] 3 S.C.R. 1100; 176 N.R. 1, refd to. [para. 22].

Stanizai v. Canada (Minister of Citizenship and Immigration) (2014), 446 F.T.R. 188; 2014 FC 74, dist. [paras. 25, 49].

Khalil et al. v. Canada (Secretary of State), [1999] 4 F.C. 661; 243 N.R. 369 (F.C.A.), refd to. [para. 27].

Murad v. Canada (Minister of Citizenship and Immigration) (2013), 441 F.T.R. 216; 2013 FC 1089, dist. [paras. 33, 48].

Vaziri v. Canada (Minister of Citizenship and Immigration) (2006), 300 F.T.R. 158; 2006 FC 1159, refd to. [para. 35].

Canada (Minister of Citizenship and Immigration) v. Fox (2009), 397 N.R. 222; 2009 FCA 346, refd to. [para. 38].

Statutes Noticed:

Citizenship Act, R.S.C. 1985, c. C-29, sect. 5(1) [para. 42].

Counsel:

Aris Daghighian, for the applicant;

Hilla Aharon, for the respondent.

Solicitors of Record:

Edelmann & Co. Law Office, Vancouver, British Columbia, for the applicant;

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

This application for judicial review was heard at Vancouver, British Columbia, on July 21, 2014, before Gagné, J., of the Federal Court, who delivered the following judgment and reasons, dated October 10, 2014, at Ottawa, Ontario.