By Sukhram Ramkissoon
In September 2013, an applicant attended before a citizenship judge in Hamilton, swore the oath of allegiance to Her Majesty Queen Elizabeth II and committed to faithfully observe the laws of Canada.
She was issued a certificate of citizenship and left at the end of the ceremony a Canadian citizen. Or did she?
She had previously failed both of the mandatory pre-conditions to citizenship – language and the knowledge component – and on her subsequent appearance before the citizenship judge, received 0/6 on the language component and 4/20 on the knowledge component.
The citizenship judge checked the boxes indicating the applicant did not meet the mandatory requirements stated in the act, gave written reasons, and made no recommendation under compassionate grounds.
What followed was a series of administrative errors.
The citizenship judge checked the wrong “Decision” box, indicating the application for citizenship was granted. Next day the departmental citizenship official responsible for processing the file signed the box “Decision seen” and checked the box “Citizenship Granted”, compounding the original error.
A few days later, the applicant received a notice to appear for a citizenship ceremony, took the Oath of Citizenship and was given a citizenship certificate.
Immediately after the ceremony a citizenship officer (not the officer who checked the “Decision seen” box), observed the error. He immediately called the applicant at home and left a message with her son. The next day another officer called her cellular phone, again leaving a message.
The calls were not returned. Later, the registrar cancelled the certificate. The applicant then filed for judicial review seeking restoration of her certificate of citizenship.
In dismissing her judicial review application, the judge stated: “In sum, the applicant received a highly valued privilege which the minister seeks to take back, and the question framed for decision is whether the regulations provide the authority for the registrar to revoke a certificate of citizenship.”
In the case of a permanent resident seeking Canadian citizenship, the specific statutory pre-conditions of the act must be met. Those require demonstration of a certain level of linguistic competence in either of Canada’s official languages and an adequate knowledge of Canada’s social, civic and political norms. These competencies must be established before citizenship is granted.
The law says a citizenship application “shall be considered by a citizenship judge who shall … determine whether or not the person who made the application meets the requirements of this act and the regulations.”
A citizenship judge shall approve or not approve the application. The law allows the minister or the applicant to appeal the decision of the citizenship judge within 60 days.
The law also provides a legislative foundation for cancellation of a certificate issued in error. A certificate is of no effect where the conditions precedent to citizenship are not met, ruled the judge.
The act contemplates certain circumstances where a certificate of citizenship may be cancelled. In this case, the registrar believed the applicant was not entitled to the certificate. That belief had an objective foundation, rooted in the record before her.
The action was purely administrative and required no adjudicative assessment, or importantly, re-adjudication of the substance of the citizenship judge’s decision.
In this case, the applicant failed both of the mandatory requirements established by statute.
To set aside the decision would serve no purpose, as the applicant would still be ineligible for citizenship. Remedies that serve no purpose will not be granted.
The judicial review application was dismissed. This case clearly demonstrates that if a person receives a privilege or reward by error under the Immigration Act it can be cancelled or revoked.
Sukhram Ramkissoon is a member of ICCRC and specializes in immigration matters at 3089 Bathurst St., Toronto. Phone 416-789-5756.