Federal appeal | Immigration and Citizenship
Citizenship
Application for grant of or retention of citizenship
Citizenship application placed on hold pending cessation proceedings
Applicant Sri Lankan citizen was granted refugee protection and became permanent resident. Applicant returned to Sri Lanka for extended stays. Minister of Citizenship and Immigration commenced cessation proceedings against applicant under s. 108(2) of Immigration and Refugee Protection Act (IRPA) on basis that applicant had re-availed himself of Sri Lanka’s protection. Applicant applied for Canadian citizenship, but processing of that application was suspended due to ongoing cessation proceedings. Applicant’s application for mandamus order requiring processing of citizenship application was granted with award of costs. Minister appealed. Appeal allowed. If there was final determination that applicant’s refugee protection had ceased, then he would lose permanent residence and become inadmissible under IRPA. Minister had power under s. 13.1 of Citizenship Act to place hold on citizenship applications where there were admissibility concerns under IRPA and both ss. 40.1 and 44 of IRPA labelled cessation as admissibility issue. Minister’s interpretation to effect that s. 13.1 of Citizenship Act allowed him to suspend processing of citizenship application for permanent resident whose refugee status had been challenged for cessation was reasonable and reflected Parliament’s intention. Minister did not have public legal duty to continue processing applicant’s application notwithstanding that cessation proceedings had yet to be determined and so test for mandamus was not met. While costs awards were highly discretionary decisions, intervention was warranted. Fact that conflicting jurisprudence existed at time that application was suspended undermined application judge’s finding that Minister acted in bad faith. Minister acted legally and there was no basis in record for finding of bad faith or subterfuge.
Canada (Minister of Citizenship and Immigration) v. Nilam (2017), 2017 CarswellNat 696, 2017 FCA 44, Near J.A., Richard Boivin J.A., and Rennie J.A. (F.C.A.); reversed (2016), 2016 CarswellNat 3621, 2016 FC 896, James Russell J. (F.C.).
Application for grant of or retention of citizenship
Citizenship application placed on hold pending cessation proceedings
Applicant Sri Lankan citizen was granted refugee protection and became permanent resident. Applicant returned to Sri Lanka for extended stays. Minister of Citizenship and Immigration commenced cessation proceedings against applicant under s. 108(2) of Immigration and Refugee Protection Act (IRPA) on basis that applicant had re-availed himself of Sri Lanka’s protection. Applicant applied for Canadian citizenship, but processing of that application was suspended due to ongoing cessation proceedings. Applicant’s application for mandamus order requiring processing of citizenship application was granted with award of costs. Minister appealed. Appeal allowed. If there was final determination that applicant’s refugee protection had ceased, then he would lose permanent residence and become inadmissible under IRPA. Minister had power under s. 13.1 of Citizenship Act to place hold on citizenship applications where there were admissibility concerns under IRPA and both ss. 40.1 and 44 of IRPA labelled cessation as admissibility issue. Minister’s interpretation to effect that s. 13.1 of Citizenship Act allowed him to suspend processing of citizenship application for permanent resident whose refugee status had been challenged for cessation was reasonable and reflected Parliament’s intention. Minister did not have public legal duty to continue processing applicant’s application notwithstanding that cessation proceedings had yet to be determined and so test for mandamus was not met. While costs awards were highly discretionary decisions, intervention was warranted. Fact that conflicting jurisprudence existed at time that application was suspended undermined application judge’s finding that Minister acted in bad faith. Minister acted legally and there was no basis in record for finding of bad faith or subterfuge.
Canada (Minister of Citizenship and Immigration) v. Nilam (2017), 2017 CarswellNat 696, 2017 FCA 44, Near J.A., Richard Boivin J.A., and Rennie J.A. (F.C.A.); reversed (2016), 2016 CarswellNat 3621, 2016 FC 896, James Russell J. (F.C.).
