A-456-96
Fadia Ezzat Khalil, Khaled Mohammad, Soha Mohammad, and Lama Mohammad, by their Litigation Guardian Fadia Ezzat Khalil (Appellants)
v.
Secretary of State for Canada (Respondent)
Indexed as: Khalilv. Canada (Secretary of State) (C.A.)
Court of Appeal, Linden, Robertson and McDonald JJ.A."Toronto, June 3; Ottawa, June 30, 1999.
Citizenship and Immigration — Status in Canada — Citizens — Application for permanent residence for husband, wife and children, cosigned by husband, wife — Family granted landing — Adjudicator later found husband inadmissible by reason of previous criminal conviction and having misrepresented material facts in application by failing to disclose conviction — Three years after landing, Citizenship Judge, unaware of fact Minister considering proceedings against appellants (wife and children) on basis of same misrepresentation, approved appellants for citizenship — Appellants never called to take citizenship oath — Mandamus not available to compel government to administer citizenship oath to appellants — Appellants have not satisfied all conditions precedent as not having established lawfully admitted to Canada — Reasonable to withhold citizenship until status of husband finalized — Question whether appellants coming to Court with clean hands as wife signed sworn application containing material misrepresentation — As mandamus within discretion of Motions Judge and as discretion exercised judicially, appellate court will not interfere.
Administrative law — Judicial review — Mandamus — Criteria — Whether tripartite test for granting injunctions and stays applicable to mandamus proceedings — Mandamus to compel administration of citizenship oath denied where Minister considering proceedings based on criminal conviction, misrepresentation of material facts.
In 1986, the appellant Fadia Khalil, mother of the three other appellants, made a joint application for permanent residence with her husband. The family was granted landing in February 1987. In December 1988, an adjudicator found that the husband was an inadmissible person under paragraph 27(1)(a) of the Immigration Act and that he had been granted landing by reason of misrepresentation of material facts. His claim for Convention refugee status was denied. In February 1990, the wife and her children applied for Canadian citizenship and, in October 1990, a citizenship judge approved the wife and children for citizenship, and advised them that they would be called to take the citizenship oath. A report pursuant to section 27 of the Act was issued against the appellants to the effect that they are subject to an inquiry under the Immigration Act on the same grounds as alleged against the husband, but the Minister has deferred inquiry action until the proceedings involving the husband have been concluded. The appellants have yet to be called to take the oath of citizenship. The appellants filed an application for mandamus to compel the government to administer the citizenship oath to them. Mandamus was refused and the application was adjourned on the ground that her status was not known, and would not be known until the proceedings against her husband were finalized. This was an appeal from that decision.
Held (Robertson J.A. dissenting), the appeal should be dismissed.
Per Linden J.A.: Mandamus is a discretionary remedy. Before this Court will grant a writ of mandamus, the criteria set out by Robertson J.A. in Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.) must be satisfied. Two of these criteria were central to this case: first, whether the appellants have satisfied all conditions precedent giving rise to the duty and second, whether there was an equitable bar to the relief and whether the decision was within the range of discretion open to the Court.
All conditions precedent giving rise to the public duty have not been met as the appellants have not been "lawfully admitted to Canada" in view of the finding in the husband's case that a serious misrepresentation was included on the joint application for permanent residence. The citizenship judge was unaware at the time of the hearing that proceedings covering these misrepresentations were being considered against the appellants, so that, when they were told that all the requirements for Canadian citizenship had been met, that was inaccurate.
While the Act does not, in normal circumstances, give a discretion to the Minister to grant or withhold citizenship to a person who meets the requirements thereof, where the Minister has information that the requirements of the Act have not been met, he may delay the conferral of citizenship until it is determined that all conditions precedent have been met. To hold otherwise would be to force the Minister to confer citizenship on a person who may have gained entry to Canada by misrepresentation only to have to commence proceedings immediately afterwards to revoke it. While the Minister has no discretion to arbitrarily refuse to grant citizenship to a person who meets the requirements, the Minister must retain some authority to refuse to grant citizenship where it is discovered before citizenship is granted that there has been a material misrepresentation, or some reasonable cause to believe that there was.
An applicant for an equitable remedy must come before the Court with clean hands. In this case, it was not necessary to decide whether a misrepresentation regarding one spouse invalidates the visa of the other spouse. That being said, it could not be said with confidence that the wife, who signed and swore to the veracity of an application which later turned out to contain material misrepresentations, comes before this Court with clean hands and is entitled, as a matter of law, to an equitable remedy. The appellants have not discharged the requirement of demonstrating that they come before the Court with clean hands.
Furthermore, it is settled law that the granting or denial of mandamus is a discretionary order which will not be varied unless the judge at first instance has committed clear error in the exercise of his or her discretion. Since the judge below was not incorrect in refusing to grant mandamus, his discretionary decision should not be varied.
Per Robertson J.A. (dissenting): The appeal should be allowed. The decision below was not a discretionary one to which deference was owed nor could it be said that the appellants have failed to meet the onus of demonstrating that they come to the Federal Court with clean hands. Finally, the majority Judges herein have erroneously adopted an approach which conflates the principles governing the law of mandamus with those governing the granting of injunctive relief.
The Minister cannot invoke paragraph 27(1)(e) as a basis for holding that the appellants were not lawfully admitted to Canada and, correlatively, that the conditions precedent for the granting of an order of mandamus have not been satisfied. A mere allegation that a person was not lawfully admitted to Canada is not a sufficient basis for refusing to issue a certificate of citizenship once an application has been approved by a citizenship judge. An appeal must be initiated by the Minister. An applicant accused of making a material misrepresentation must be accorded due process. The Immigration Act specifically states that the adjudicator is responsible for determining whether a person has acquired permanent resident status by fraudulent means. In this case, no adverse finding has been made by an adjudicator in respect of the appellants.
The Minister does not possess a residual jurisdiction to deny citizenship on the basis of a mere allegation of wrongdoing. The Minister had at least two avenues open to her to ensure that the wife's citizenship application was not approved by the citizenship judge. The Minister could have brought the alleged misrepresentation to the attention of the Registrar of citizenship at the time the inquiries were being conducted into whether the wife met the requirements of the Act. Alternatively, the Minister could have appealed the citizenship judge's decision to approve the appellants' citizenship application within the prescribed 60-day period. By refusing to grant citizenship, the Minister is attempting to do indirectly what should have been done directly. Accordingly, the appellants are entitled to an order of mandamus unless, on a balance of convenience, the order should be denied.
Under the balance of convenience test outlined in Apotex, courts retain the discretion to refuse to issue an order where the public interest outweighs the interests of those who would otherwise be entitled to the order. This is not a case in which this Court's discretion should be exercised in favour of the Minister. It is not an exceptional case involving health or safety issues, nor would the issuance of a mandamus order lead to administrative chaos or result in the expenditure of unacceptable sums of money. The order only affects the appellants' interests.
The law is clear that he who asserts must prove. In this regard, a bald allegation of material misrepresentation fails to satisfy that burden. In any event, it cannot be stated with confidence that the appellants' hands are "unclean". The fact that the Immigration Act may deem a person to have misrepresented a material fact does not mean that that person has "unclean" hands for the purposes of obtaining equitable relief. In order to draw such a conclusion, a finding would have to be made that the wife knowingly made a misrepresentation.
Mandamus is not a discretionary order. A trial judge does not issue an order of mandamus simply because he or she thinks it appropriate. Discretion is restricted to the balance of convenience test. More importantly, that test is not the same as the one applied in injunction and stay proceedings. The majority Judges herein have conflated the test for mandamus with that governing injunctions and stays.
While this opinion may be open to criticism on the ground of impracticality, it should be noted that various options were available to the Minister to challenge the appellants' eligibility for citizenship. Since the Minister chose not to pursue any of those options, she cannot now come before this Court and ask it to affirm a discretionary course of action that lies outside the express provisions of the Act.
| statutes and regulations judicially considered |
| Citizenship Act, R.S.C., 1985, c. C-29, ss. 3(1)(c), 5(1), 10, 12, 14(1),(2),(5),(6), 17. |
| Citizenship Regulations, 1993, SOR/93-246, s. 3(6). |
| Immigration Act, R.S.C., 1985, c. I-2, ss. 18, 19(1)(c) (as am by S.C. 1992, c. 49, s. 11), (g), 27(1)(a) (as am. idem, s. 16), (e). |
| cases judicially considered |
| applied: |
| Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742; (1993), 18 Admin. L.R. (2d) 122; 51 C.P.R. (3d) 339; 162 N.R. 177 (C.A.); affd [1994] 3 S.C.R. 1100; (1994), 176 N.R. 1; Ahani v. Canada, [1999] F.C.J. No. 833 (C.A.) (QL); Fitzgerald v. Casualty Company of Canada (1981), 31 Nfld. & P.E.I.R. 521 (Nfld. S.C.); Borden v. Co-Operators General Insurance Company (1984), 63 N.S.R. (2d) 375; 5 C.C.L.I. 193 (S.C.T.D.); Independent Contractors & Business Assn. v. Canada (Minister of Labour) (1998), 6 Admin. L.R. (3d) 92; 39 C.L.R. (2d) 121; 225 N.R. 19 (F.C.A.); Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3; (1992), 88 D.L.R. (4th) 1; [1992] 2 W.W.R. 193; 84 Alta. L.R. (2d) 129; 3 Admin. L.R. (2d) 1; 7 C.E.L.R. (N.S.) 1; 132 N.R. 321; Strange, C.J.P.C. v. Mackin, P.C.J. (1996), 176 N.B.R. (2d) 321; 134 D.L.R. (4th) 243 (C.A.); Scott v. College of Physicians and Surgeons of Saskatchewan (1992), 95 D.L.R. (4th) 706; [1993] 1 W.W.R. 533; 100 Sask. R. 291 (C.A.); Corbeil and The Queen, Re (1986), 27 C.C.C. (3d) 245; 24 C.R.R. 174; 13 O.A.C. 382 (Ont. C.A.); Regina and Tracey, Re (1984), 44 O.R. (2d) 350; 4 D.L.R. (4th) 768; 9 C.C.C. (3d) 352 (C.A.). |
| considered: |
| D'Souza v. Minister of Employment and Immigration, [1983] 1 F.C. 343 (C.A.); Mohammed v. Canada (Minister of Citizenship and Immigration), [1997] 3 F.C. 299; (1997), 130 F.T.R. 294 (T.D.); Moumdjian v. Canada (Security Intelligence Review Committee), [1999] F.C.J. No. 1160 (C.A.) (QL); Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; (1997), 144 D.L.R. (4th) 1; 71 C.P.R. (3d) 417; 209 N.R. 20; affd (1995), 127 D.L.R. (4th) 329; 21 B.L.R. (2d) 68; 63 C.P.R. (3d) 67; 185 N.R. 291 (F.C.A.). |
| referred to: |
| RJR "MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311; (1994), 111 D.L.R. (4th) 385; 164 N.R. 1. |
| authors cited |
| Brown, Donald J. M. and John M. Evans. Judicial Review of Administrative Action in Canada, loose-leaf ed. Toronto: Canvasback Publishing. |
APPEAL from a Trial Division decision (Khalil v. Canada (Secretary of State) (1996), 36 Imm. L.R. (2d) 201 (F.C.T.D.)) refusing to grant mandamus to compel the government to administer the citizenship oath to the appellants and adjourning the matter indefinitely, pending the outcome of proceedings against the principal appellant's husband. Appeal dismissed.
| appearances: |
| Barbara L. Jackman for appellants. |
| Ian Hicks for respondent. |
| solicitors of record: |
| Jackman, Waldman & Associates, Toronto, for appellants. |
| Deputy Attorney General of Canada for respondent. |
The following are the reasons for judgment rendered in English by
Linden J.A.:
Introduction
[]The issue in this case is whether the Trial Judge [(1996), 36 Imm. L.R. (2d) 201] abused his discretion when he refused to grant a writ of mandamus to force the Minister to administer the citizenship oath to the appellants, the wife and children of a co-applicant, husband, who were landed together following the concealment of a prior conviction for manslaughter of the husband, which, if known, would likely have barred their entry to Canada under paragraph 19(1)(c) of the Immigration Act (the Act).1
Facts and decision on appeal
[]The facts of this case are not in dispute. The appellants are a mother, Fadia Khalil, and her three children, Khaled Mohammad, Soha Mohammad and Lama Mohammad. Fadia Khalil, along with her husband, Mahmoud Mohammad, applied for permanent residence in the fall of 1986. They made a joint application for permanent residence, which the husband filled out and which his wife, the appellant, signed and swore along with him. The joint application stated that neither the wife nor her husband "had ever been convicted of any crime or offence". Beneath the signature line the application reads:
I understand that any false statements or concealment of a material fact may result in my permanent exclusion from Canada and even though I should be admitted to Canada for permanent residence, a fraudulent entry on this application could be grounds for my prosecution and or deportation.2
[]Fadia Khalil, the applicant, and her husband were landed in Canada in February, 1987. She and her children applied for Canadian citizenship in February of 1990. In September, 1990, the citizenship judge administering the citizenship test advised the wife that she satisfied the requirements for Canadian citizenship and would be called to take the citizenship oath. On October 23, 1990, a citizenship judge approved the wife for citizenship. On the same date, the children were also held approved along with their mother.
[]Prior to December, 1988, a report was issued alleging that Mahmoud Mohammad, the husband, was a permanent resident who, if he were not landed, would be inadmissible pursuant to paragraph 19(1)(c) of the Immigration Act for crimes committed abroad.
[]In December, 1988, Mohammad was brought before an immigration adjudicator, who heard evidence that Mohammad was convicted by a Greek court of three charges: (a) manslaughter by negligence, (b) disturbing the safety of air traffic, and (c) using a weapon during the perpetration of an act of manslaughter. The immigration adjudicator found (a) that Mohammad was properly described as an inadmissible person under paragraph 27(1)(a) [as am. by S.C. 1992, c. 49, s. 16] of the Act, and (b) that Mohammad was a permanent resident granted landing by reason of misrepresentation of material facts. At the inquiry, Mohammad made a claim for Convention refugee status, which, the Court was informed, has failed.
[]While the misrepresentation on the application for permanent residence was in respect of the husband, the wife had also signed and sworn the application.
[]It is the position of the Minister that the appellants are subject to an inquiry under the Immigration Act on the same grounds as alleged against the husband. Indeed, a report was issued against the appellants to that effect pursuant to section 27 of the Act in 1991, but the Minister has deferred inquiry action against them until the proceedings involving the husband have been concluded. The appellants have yet to be called to take the oath of citizenship.
[]The appellants filed an application in the Trial Division seeking a writ of mandamus to compel the government to administer the citizenship oath to the appellants.
[]On judicial review, the application was adjourned. The Trial Judge noted that paragraph 5(1)(c) of the Citizenship Act [R.S.C., 1985, c. C-29] (the Act) requires, inter alia, that any person applying for citizenship must have been "lawfully admitted to Canada for permanent residence".3 He concluded that her status was not known, and would not be known until the proceedings against her husband were finalized:
Clearly, the Minister cannot make the necessary determination concerning the effect of paragraph 5(c) [sic] until the finalization of Mr. Mohammad's application for revocation status.4
[]The Trial Judge further considered that section 10 of the Act provides for the revocation of citizenship where it is discovered that citizenship was obtained by false representations. In his view, however, the existence of a statutory revocation procedure did not warrant the use of mandamus to force the Minister to grant citizenship. He wrote that:
In my view, it is certainly more orderly for the Minister to first investigate suspicions of false representation before granting citizenship in this case rather than risk the extremely complex revocation proceeding contemplated by section 18. On May 22, 1996, counsel for the Minister again confirmed her continuing advice to the Minister to take no steps to remove these applicants until the status of the husband has been finalized and to agree to an indefinite adjournment of these proceedings.5
Analysis
[]Mandamus is a discretionary equitable remedy. Before this Court will order a writ of mandamus, the following criteria, as set out by Mr. Justice Robertson in Apotex Inc. v. Canada (Attorney General);6 must be satisfied:
| (a) there must be a public legal duty to act under the circumstances; |
| (b) the duty must be owed to the applicant; |
| (c) there must be a clear right to performance of that duty, and in particular the applicant must have satisfied all conditions precedent giving rise to the duty; |
| (d) no other adequate remedy is available to the applicant; |
| (e) the order sought must have some practical effect; |
| (f) in the exercise of its discretion, the Court must find no equitable bar to the relief sought; and, |
| (g) on a balance of convenience, an order of mandamus should issue.7 |
[]In my view, two of the above criteria are central to this case: first, whether the appellants have satisfied all conditions precedent giving rise to the duty as in (c) above; second, whether there was an equitable bar to the relief and whether the decision was within the range of discretion open to the Court as in (f). In the light of the conclusions I reach on these two issues, I do not feel that it is necessary to consider the balance of convenience according to (g) in this case.
No Satisfaction of All Conditions Precedent
[]In order for a writ of mandamus to issue, all conditions precedent giving rise to the public duty must be met.8 In this case, one of those conditions is that the appellants must have been "lawfully admitted to Canada". There has been a finding in the husband's case that a serious misrepresentation was included on the joint application for permanent residence. The citizenship judge was unaware at the time of the hearing that proceedings covering these misrepresentations were being considered against the appellants, so that, when they were told that all the requirements for Canadian citizenship were met, that was inaccurate.
[]I agree with my colleague, Robertson J.A., that the Act does not, in normal circumstances, give the discretion to the Minister to grant or withhold citizenship to a person who meets the requirements of citizenship.9 However, sections 5 and 12 of the Act do not require the Minister to confer citizenship automatically in every situation on every person who is recommended for citizenship by a citizenship judge. Sections 5 and 12 of the Act mandate the grant of citizenship in the normal course to any person who meets the requirements set out therein. The Minister cannot arbitrarily withhold citizenship from someone who has qualified for it. Where the Minister has information that the requirements of the Act have not been met, however, she may delay the conferral of citizenship until it is determined that all the conditions precedent have been met. To hold otherwise would be to force the Minister to confer citizenship on a person who may have gained entry to Canada by misrepresentation only to have to commence proceedings immediately afterwards to revoke it. While the Minister has no discretion to arbitrarily refuse to grant citizenship to a person who meets the requirements, the Minister must retain some authority to refuse to grant citizenship where it is discovered before citizenship is granted that there has been a material misrepresentation, or some reasonable cause to believe that there was.
Equitable Bar and Discretion
[]A writ of mandamus will only issue where there is no equitable bar to such an order. It is trite law that an applicant for an equitable remedy must come before the Court with clean hands. In this case, the respondent contends that a misrepresentation on a joint application for permanent residence impugns all the applicants, citing the decision of this Court in D'Souza v. Minister of Employment and Immigration.10 If the respondent is correct, or if it can be said that the respondent might succeed in this argument at a later date, then it cannot be said that the applicants' hands are metaphorically clean.
[]In D'Souza, Thurlow C.J. dealt with a case in which the appellant's mother made a material misrepresentation regarding the appellant on her application for landing. The appellant argued that the misrepresentation made by his mother should not invalidate his permanent residence. This Court refused to vary the deportation order. In doing so, this Court suggested that knowledge of the misrepresentation was relevant to the facts of the case, but might not be relevant in future cases. Thurlow C.J. wrote that:11
. . . the Board did not make a finding that the appellant was unaware at the material time that his mother had made an incorrect answer. On the evidence, and having regard to the circumstances under which the applications were made, the Board might well have been left unsatisfied that the appellant did not know. . . .
But be that as it may, to adopt the proposed construction of the statute would, in my opinion require the addition of words limiting its application to situations where the person concerned had knowledge of the making of the statement. I do not think the Court can supply or insert such wording. If the statute is to be so limited it is, in my opinion a matter for Parliament. The submission, therefore, fails. [Emphasis added.]
[]In Mohammed v. Canada (Minister of Citizenship and Immigration),12 MacKay J. held that to interpret "misrepresentation" in paragraph 27(1)(e ) of the Act as being restricted to wilful or intentional misrepresentation, of which the applicant must be subjectively aware, would limit the final phrase of the provision, which states that a report may be issued due to "any fraudulent or improper means or misrepresentation of any material fact, whether exercised or made by himself or by any other person" [emphasis added].
[]In my view, D'Souza and Mohammed do not definitively decide whether the misrepresentation regarding Mahmoud Mohammad made in a joint application is sufficient to warrant the removal of the wife and children from Canada. On one hand, the language of the Act and the language of the application are certainly wide enough to taint the wife in this case, since she signed and swore that no one listed on the application had ever been convicted of any offence. On the other hand, however, both D'Souza and Mohammed dealt with a situation where the misrepresentation in question pertained to the appellant himself or herself. In this case, the misrepresentation pertains only to Mr. Mohammad, but not to the appellants' personal records.
[]As the issue was neither fully argued nor properly before this Court, I need not decide it at this time. Whether a misrepresentation regarding one spouse invalidates the visa of the other spouse is a question which may need to be resolved before the appellants can be removed from Canada. That being said, it cannot be said with confidence that the wife, who signed and swore to the veracity of an application which later turned out to contain material misrepresentations, comes before this Court with clean hands and is entitled, as a matter of clear law, to an equitable remedy.
[]Any applicant seeking equitable relief must discharge the requirement of demonstrating that he or she comes before the Court with clean hands.13 In this case, the appellants have not yet done so.
[]The other aspect of mandamus which is central to this case is that the decision on appeal is one which was in the discretion of the reviewing judge. In the case of Ahani v. Canada,14 a case decided from the Bench two days before this case was heard, this Court refused to vary the discretionary decision of the Trial Division of this Court. In that case, Ms. Jackman, who is also counsel for the applicant in this case, argued forcefully for the principle of non-interference with the discretion of the Court below. This Court accepted and summarized her argument as follows:
The jurisdiction of this Court to interfere on appeal from a decision regarding whether to issue a stay is well-established. It is only where the Motions Judge has misapplied the law, misapprehended the evidence, or where circumstances have substantially changed after the Motions Judge made his or her order in such a manner as to justify interfering with the order, that this Court will exercise its jurisdiction to intervene. In short, this Court will only interfere where it is clear that a Motions Judge has failed to exercise his or her discretion judicially.
While we might have exercised our discretion differently from the Motions Judge, we are unable to say that he exercised his discretion in a manner that would warrant our intervention.15 [Emphasis added.]
[]The principle of deference to the discretion of trial courts is not new. In the case of Independent Contractors & Business Assn. v. Canada (Minister of Labour),16 Stone J.A. restated the principle of non-interference by this Court in the discretionary decision of a motions judge. He concluded at paragraph 21 [pages 100-101] of his reasons that "[A]n appella[te] court will be justified in intervening in a trial judge's exercise of his discretion only if the trial judge misdirects himself or if his decision is so clearly wrong as to amount to an injustice."
[]While it is true that, over the years, courts have elaborated various criteria which guide the exercise of discretion in decisions regarding the prerogative writs, it is settled law that the granting or denial of mandamus is a discretionary order which will not be varied unless the Judge at first instance has committed clear error in the exercise of his or her discretion.17
Application of the Law to These Facts
[]In my view, the Judge below was not incorrect in refusing to grant mandamus, and I would therefore not vary his discretionary decision. First, the appellants have not proved that they have satisfied all the conditions for citizenship. While it is true that a citizenship judge may have told them that they satisfied all conditions, that judge was unaware that there were proceedings pending which involved an allegation that there was a material misrepresentation on the application for permanent residence. I would not force the Minister to confer citizenship on a person against whom there is a serious allegation of misrepresentation. The Minister is not acting arbitrarily in refusing to do so. Indeed, it might be said that she would be derelict in her duty if she were to proceed, given an honest belief in the falsity of the data in the application.
[]Second, the wife has not demonstrated that she has clean hands. While it is not necessary to decide, at this time, that the misrepresentation of her husband's past conviction is sufficient to warrant her ouster from Canada, I would say that there is sufficient evidence to investigate the matter further. Thus, the Trial Judge was within his authority to refuse to exercise his discretion in favour of the applicants at this time by not ordering such a drastic remedy as mandamus.
[]The Department has explained the delay in bringing forward the proceedings against the appellants. While the husband has been found not to be a Convention refugee, he may yet appeal that ruling. Following that appeal, he might, make application for post-determination refugee claimants in Canada class (PDRCCC) status. If that is unsuccessful, he might make a claim to remain in Canada on humanitarian and compassionate grounds. Alternatively, there may be applications made to extend the time to appeal the citizenship judge's decision and/or to commence an inquiry under the Immigration Act. Following any of these proceedings, he might win permission to remain in Canada.
[]If the government (either before or after citizenship is granted) were to proceed against the applicants, an awkward situation might arise: the wife and children may be removed from Canada, while the husband may be permitted to remain. At this time, the government has made clear its intention not to proceed against the appellants until the proceedings against the husband are settled.
[]An order of mandamus forcing the government to grant citizenship in this case would require the government to begin citizenship revocation proceedings immediately thereafter, in addition to continuing with the proceedings against the husband. I am unable to countenance a conclusion that would lead to such a result.
[]It should be stated in conclusion that the ultimate destiny of this family is not being decided on this appeal, whatever its ultimate outcome. It will take further proceedings involving all of them before that destiny is determined.
[]I would dismiss the appeal.
McDonald J.A.: I agree.
The following are the reasons for judgment rendered in English by
[]Robertson J.A. (dissenting): This is an appeal from an order of the Trial Division, effectively dismissing an application for an order of mandamus compelling the Minister of Citizenship and Immigration to grant citizenship to the appellants. In the reasons that follow, I conclude that the Motions Judge erred and, since my colleagues have reached a contrary opinion, I must respectfully dissent. In particular, I do not subscribe to their belief that the decision below is a discretionary one to which deference is owed, nor do I subscribe to their view that the appellants (three of whom were infants at the relevant time) have failed to meet the onus of demonstrating that they come to the Federal Court with "clean hands". Finally, and with the greatest of respect to my colleagues, I am of the view that they have erroneously adopted an approach which conflates the principles governing the law of mandamus with those governing the granting of injunctive relief. My analysis begins with a recitation of the essential facts, which are not in dispute.
[]Fadia Khalil and Mahmoud Mohammad Issa Mohammad (Mr. Mohammad) were married on August 19, 1976. On November 3, 1986, Ms. Khalil signed a joint application for permanent residence, allegedly prepared by her husband, and deposited it with the Canadian Embassy in Spain. On February 25, 1987, they were granted permanent resident status and landing in Canada, together with their three infant children. Subsequently, a report was issued under subsection 27(1) of the Immigration Act, convoking Mr. Mohammad to an immigration inquiry. It was alleged that Mr. Mohammad should not have been granted landing since he was a member of an inadmissible class described in paragraph 19(1)(c), that is, a person who had committed an offence outside Canada which, had it been committed here, would have been punishable by a maximum term of 10 years imprisonment.
[]Mr. Mohammad was convicted by a Greek court of, inter alia, manslaughter by negligence after an attack on an El Al plane at the Athens airport in 1968. In August, 1970, after serving approximately one and one-half years in jail, the Greek government pardoned Mr. Mohammad by commuting his eighteen-year sentence.
[]The adjudicator found that Mr. Mohammad came within paragraph 27(1)(a) as a member of an inadmissible class described in paragraph 19(1)(c). The adjudicator also found that Mr. Mohammad was a person who fell within paragraph 27(1)(e), that is, a permanent resident granted landing by reason of misrepresentation of material facts. However, during the inquiry, Mr. Mohammad applied for Convention refugee status. When the inquiry concluded on December 15, 1988, the adjudicator held that Mr. Mohammad was removable from Canada, subject to the determination as to his refugee claim. The Refugee Division of the Immigration and Refugee Board held a hearing in 1996, and denied his claim.
[]On February 26, 1990, Ms. Khalil and her three infant children (the appellants) applied for Canadian citizenship under section 5 of the Citizenship Act. On September 26, 1990, Ms. Khalil appeared before a citizenship judge who determined that she satisfied the requirements for Canadian citizenship. On October 23, 1990, her application for citizenship was formally approved by the citizenship judge, and a notice of decision was sent to the responsible Minister on that date. However, Ms. Khalil was not called on to take the oath of citizenship, which is required before a certificate of citizenship can take effect, nor did the Minister appeal the citizenship judge's determination. In January 1991, the Department of Employment and Immigration advised the Minister that Ms. Khalil was liable to an inquiry under section 27 of the Immigration Act, but that the decision to convoke her inquiry was being deferred until Mr. Mohammad's inquiry was completed. It is common ground that Mr. Mohammad's inquiry was completed in 1988, prior to the advice given to the Minister in January 1991. At no time has the Minister convoked an inquiry under section 27 of the Immigration Act into Ms. Khalil's alleged misrepresentation.
[]On September 1, 1992, the appellants applied to this Court for an order of mandamus by commencing an application for judicial review, because the Minister would not allow them to take the oath of citizenship which is required before a certificate of citizenship can take effect.
[]The Trial Judge refused to grant the order; instead, he adjourned the matter indefinitely, pending the outcome of the proceedings against Mr. Mohammad. The appellants have appealed the Trial Judge's refusal to grant mandamus, in addition to his decision to adjourn the matter indefinitely.
[]Before turning to the relevant principles governing the law of mandamus, a brief overview of the relevant statutory framework is required.
[]Section 5 of the Citizenship Act is the general provision relating to the granting of citizenship by the Minister. In essence, it provides that the Minister shall grant citizenship to any person who makes an application therefor and meets specified criteria, including the requirement that the applicant has been lawfully admitted to Canada. Under subsection 3(6) of the Citizenship Regulations, 1993 [SOR/93-246], the Registrar of the citizenship court is obligated upon the receipt of an application for citizenship to "[commence] the inquiries necessary to determine whether the applicant meets the requirements of the Act and . . . Regulations". Section 17 of the Citizenship Act provides that where an application has been made under the Act and the Minister is of the opinion that there is insufficient information available to ascertain whether the applicant meets the requirements of the Act, the application process may be suspended for up to six months to enable the Minister to acquire the necessary information. When these inquiries have been completed, the Registrar is obligated to refer the application to a citizenship judge. Under section 14 of the Act, the citizenship judge has 60 days within which to determine whether the applicant meets the requirements of the Act and Regulations. Where the citizenship judge approves the application, the Minister is required to issue a certificate of citizenship to the applicant pursuant to subsection 12(2). However, subsection 12(3) provides that the certificate does not take effect until the oath of citizenship is taken. Subsection 12(2) is also subject to subsection 14(5), which provides that the Minister may appeal the decision of the citizenship judge to this Court by filing a notice of appeal within 60 days of the decision to approve the application. For ease of reference, these statutory provisions are reproduced in Schedule "A" to these reasons.
[]In the present case, all of the relevant inquiries were made without intervention by the Minister. Nor did the Minister file an appeal under section 14 after the citizenship judge approved the appellants' application for citizenship. The only question which remains is whether the appellants are entitled to an order of mandamus in these circumstances. In Apotex Inc. v. Canada (Attorney General),18 this Court set out the criteria necessary to justify an order of mandamus. Of the eight requirements outlined in that case, the parties agree that only three of them are relevant to this appeal.
[]The Minister's first objection is that there is an equitable bar to granting mandamus. Second, and related to the first, is the argument that there is no clear right to the order sought, as the appellants were not lawfully admitted to Canada, as required by section 5 of the Act. Finally, the Minister maintains that on a "balance of convenience", an order of mandamus should not issue. I shall deal with each of these objections in turn.
[]During oral argument, the Minister alleged that the appellants' conduct amounted to an equitable bar to the granting of an order of mandamus. Specifically, the Minister questioned whether Ms. Khalil had disclosed all of the relevant information in her application for permanent residence. While it is true that Ms. Khalil did not use her husband's surname on the application form, that document discloses that she is the wife of "Mahmoud Mohammad Issa Mohammad". At the end of oral argument, the Minister conceded that Ms. Khalil had not attempted to mislead her.
[]The Minister's second objection is that not all of the conditions precedent to the issuance of a mandamus order have been satisfied, namely, the appellants were not lawfully admitted to Canada. The Minister points out that under paragraph 27(1)(e) of the Immigration Act, a person who is granted landing on the basis of a material misrepresentation is subject to removal from Canada, even if the misrepresentation is made by another person. That paragraph reads as follows:
27. (1) An immigration officer or a peace officer shall forward a report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a permanent resident is a person who
. . .
| (e) was granted landing by reason of . . . any fraudulent or improper means or misrepresentation of any material fact, whether exercised or made by himself or by any other person. [Emphasis added.] |
[]In short, the Minister interprets paragraph 27(1)(e) to mean that where there is a joint application for landing, a material misrepresentation by one will render both parties inadmissible. Since Mr. Mohammad was found to have made such a misrepresentation, the Minister is of the view that Ms. Khalil is automatically subject to removal as well, citing this Court's decision in D'Souza v. Minister of Employment and Immigration19 in support thereof. In the present case, counsel for the appellants maintains that Ms. Khalil was not aware of her husband's convictions when they were married or when permanent residence and landing were sought. According to her affidavit evidence, Ms. Khalil did not write or speak English when the joint application prepared by her husband was submitted to the Canadian Embassy in Spain. Ms. Jackman maintains that the Minister must convoke an inquiry so that Ms. Khalil will have an opportunity to challenge the allegation of misrepresentation and the Minister's interpretation of subsection 27(1)(e), as well as the scope and legal effect of D'Souza. I agree with Ms. Jackman that this matter can only be resolved at the inquiry stage, where Ms. Khalil will have the burden of demonstrating that she was unaware of her husband's misrepresentations and that she should not be removed from Canada on that basis.
[]Thus, the Minister cannot invoke paragraph 27(1)(e) as a basis for holding that the appellants were not lawfully admitted to Canada and, correlatively, that the conditions precedent to the granting of an order of mandamus have not been satisfied. A mere allegation that a person was not lawfully admitted to Canada is not a sufficient basis for refusing to issue a certificate of citizenship once an application has been approved by a citizenship judge. An appeal must be initiated by the Minister. An applicant accused of making a material misrepresentation must be accorded due process. The Immigration Act specifically states that the adjudicator is responsible for determining whether a person has acquired permanent resident status by fraudulent means. In this case, no adverse finding has been made by an adjudicator in respect of the appellants.
[]Finally, I do not accept that the Minister possesses a residual jurisdiction to deny citizenship on the basis of a mere allegation of wrongdoing. The Minister had at least two avenues open to her to ensure that Ms. Khalil's citizenship application was not approved by the citizenship judge. First, the Minister could have brought the alleged misrepresentation to the attention of the Registrar of citizenship at the time inquiries were being conducted into whether Ms. Khalil met the requirements of the Act. If the Minister had done so, and then commenced an inquiry under paragraph 27(1)(e), the citizenship judge would not have approved the application for citizenship, and these lengthy proceedings would not have been undertaken. It must be noted that this approach was adopted by the Minister in Moumdjian v. Canada (Security Intelligence Review Committee), [1999] F.C.J. No. 1160 (C.A.) (QL). Mr. Moumdjian applied for Canadian citizenship but his application was delayed because it was alleged that he was inadmissible to Canada under paragraph 19(1)(g) of the Immigration Act. In that case, however, immediate action was taken pursuant to the Immigration Act to have Mr. Moumdjian deported based on his alleged inadmissibility.
[]Alternatively, the Minister could have appealed the citizenship judge's decision to approve the appellants' citizenship application within the prescribed 60-day period on the ground that Ms. Khalil's permanent resident status had been gained by a material misrepresentation and that an inquiry under paragraph 27(1)(e) had been convoked. But the Minister did not pursue either of these avenues even though she knew from the outset that the appellants could be convoked to an inquiry. I do not accept, as do my colleagues, that the Minister retains the discretionary authority to refuse to grant citizenship on the grounds of a material misrepresentation when Parliament has provided a precise statutory framework for denying citizenship on such grounds. By refusing to grant citizenship, the Minister is attempting to do indirectly what should have been done directly. Accordingly, the appellants are entitled to an order of mandamus unless, on a "balance of convenience", the order should be denied.
[]Under the "balance of convenience" test outlined in Apotex , courts retain the discretion to refuse to issue an order where the public interest outweighs the interests of those who would otherwise be entitled to the order. The Minister argues that it makes no practical sense to issue certificates of citizenship to the appellants, only to have the Minister turn around and commence revocation proceedings under section 18 of the Act. Although this argument has some merit from a practical perspective, and it obviously persuaded the Trial Judge who adjourned the matter indefinitely, it cannot succeed.
[]In Apotex, two factors relevant to this appeal were identified as determinative as to whether mandamus should be refused and the Court's discretion exercised in favour of the public interest. One ground for refusing to issue mandamus is where the administrative cost or chaos that would ensue upon issuance of the order is obvious and unacceptable. The second, and more, speculative ground for denying mandamus arises in cases where potential health and safety risks to the public are perceived to outweigh an individual's right to pursue personal or economic interests. In writing for this Court, I cautioned against using the balance of convenience test to deny mandamus except in the clearest of cases. At page 794, I stated:
In effect, the balance of convenience test authorizes the Court to use its discretion to displace the law of relevant considerations and the doctrine of vested rights. It should therefore be used only in the clearest of circumstances and not be perceived as a panacea for bridging legislative gaps. Unless courts are prepared to be drawn into the forum reserved for those elected to office, any inclination to engage in a balancing of interests must be measured strictly against the rule of law. [Emphasis added.]
[]In my view, this is not a case in which this Court's discretion should be exercised in favour of the Minister. It is not an exceptional case involving health or safety issues, nor would the issuance of a mandamus order lead to administrative chaos or result in the expenditure of unacceptable sums of money. The order only affects the appellants' interests. To deny them relief would mean that their fate would rest entirely in the hands of the Minister, who failed to take any administrative steps to challenge their right to permanent resident status and citizenship for 11 years.
[]Admittedly, the Minister's decision to delay proceedings against the appellants until Mr. Mohammad's situation was resolved was made in good faith. But this does not displace the Minister's obligation to adhere to the statutory framework prescribed by Parliament. The appellants have a right to know whether they will be permitted to remain in Canada in a timely manner.
[]With respect to my colleagues' reasons, there are only two points I wish to address. First, they conclude that it cannot be said with "confidence" that the appellants come to this Court with clean hands. In addition, they place the burden of establishing that there is no equitable bar to the relief sought on the appellants. With the greatest of respect, the law is clear that "he who asserts should prove".20 In this regard, a bald allegation of material misrepresentation fails to satisfy that burden. In any event, I must confess that I cannot state with confidence that the appellants' hands are "unclean". It may well be that, under the Immigration Act , the acts of the blameworthy are transferred to the blameless. Nevertheless, the fact that the Immigration Act may deem a person to have misrepresented a material fact does not mean that that person has "unclean" hands for the purposes of obtaining equitable relief. In order to draw such a conclusion, a finding would have to be made that Ms. Khalil knowingly made a misrepresentation.
[]My second objection arises from my colleagues' assertion that the decision not to grant the order of mandamus is a discretionary one to which deference is owed by this Court. In response, I am of the respectful view that mandamus is not a discretionary order. This is not a case in which the appellants are seeking, for example, an extension of time. A trial judge does not issue an order of mandamus simply because on balance he or she thinks it appropriate. To the extent that the notion of judicial discretion is relevant to a determination to grant an order of mandamus, discretion is restricted to the balance of convenience test as outlined above. More importantly, that test is not the same as the one applied in injunction and stay proceedings. In short, the tripartite test set out in cases such as RJR—MacDonald Inc. v. Canada (Attorney General)21 for granting an injunction or a stay has no application to mandamus proceedings. It is my respectful view that my colleagues have conflated the test for mandamus with that governing injunctions and stays.
[]Assuming for the moment that this case is governed by the tripartite test for injunction and stay proceedings, it is clear that my colleagues' decision is well founded. Admittedly, there is a serious issue to be determined, and yet the appellants will not suffer irreparable harm if they are temporarily denied citizenship. The balance of convenience in this case clearly favours the Minister, since it simply does not make sense to confer citizenship on the appellants only to turn around and have the Minister commence revocation proceedings. Nevertheless, I am not prepared to conflate the principles governing the law of mandamus with those governing injunctions and stays.
[]In closing, I wish to acknowledge that my dissenting opinion is open to criticism on the ground of impracticality. To order the Minister to grant citizenship to the appellants before commencing revocation proceedings appears wasteful and contrary to common sense. However, hard cases make good law if sufficient attention is paid to the relevant legal principles, rather than the facts. If the rule of law is to have any meaning, then it must transcend the particular facts of a case and, except where it would result in an absurdity, be applied in a straightforward manner. In this case, I have noted the various options that were available to the Minister under the Immigration Act to challenge the appellants' eligibility for citizenship. Briefly, the Minister could have convoked an inquiry under section 27, delayed the citizenship application process in order to conduct a more thorough investigation into the appellants' eligibility under section 17 [of the Citizenship Act], or appealed the citizenship judge's decision within 60 days pursuant to section 14 [of the Citizenship Act]. Since the Minister chose not to pursue any of those options, she cannot now come before this Court and ask it to affirm a discretionary course of action that lies outside the express provisions of the Act.
[]I would allow the appeal, set aside the order below, and grant the application for judicial review by issuing an order of mandamus directing the Minister to issue certificates of citizenship to each of the appellants and to provide the appellants with the opportunity to take the oath of citizenship. As neither party sought costs, no costs should be ordered.
1 R.S.C., 1985, c. I-2, as amended [s. 19(1)(c) (as am. by S.C. 1992, c. 49, s. 11)].
2 Appeal Book, p. 358.
3 Citizenship Act, R.S.C., 1985, c. C-29, s. 5(1)(c).
4 (1996), 36 Imm. L.R. (2d) 201 (F.C.T.D.), at p. 203 (para. 4).
5 Ibid., at pp. 203-204 (para. 5).
6 [1994] 1 F.C. 742 (C.A.), affd [1994] 3 S.C.R. 1100.
7 See Apotex, supra., at pp. 766-769.
8 See Brown and Evans, Judicial Review of Administrative Action in Canada (loose-leaf) (Toronto: Canvasback Publishing).
9 See the Citizenship Act, supra., s. 5(1).
10 [1983] 1 F.C. 343 (C.A.).
11 Ibid., at p. 345.
12 [1997] 3 F.C. 299 (T.D.).
13 See, e.g., Fitzgerald v. Casualty Company of Canada (1981), 31 Nfld. & P.E.I.R. 521 (Nfld. S.C.); see also Borden v. Co-Operators General Insurance Company (1984), 63 N.S.R. (2d) 375 (S.C.T.D.).
14 [1999] F.C.J. No. 833 (C.A.) (QL) (hereinafter Ahani).
15 Ibid., at paras. 3-4.
16 (1998), 6 Admin. L.R. (3d) 92 (F.C.A.).
17 See, e.g., Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, at pp. 76-80; Strange, C.J.P.C. v. Mackin, P.C.J. (1996), 176 N.B.R. (2d) 321 (C.A.), at p. 335: "The issuing of an order in the nature of mandamus is discretionary with the trial judge, and it should not be left to a higher tribunal to sift the evidence in order to determine which facts satisfy which principles of a precedent relied upon by the trial judge."; Scott v. College of Physicians and Surgeons of Saskatchewan (1992), 95 D.L.R. (4th ) 706 (Sask. C.A.) at p. 712. "[M ]andamus remains an essentially discretionary remedy . . . . this court's task, at the outset at least, is one of review only, to determine whether the judge of first instance erred in the exercise of his or her discretion."; Corbeil and The Queen, Re (1986), 27 C.C.C. (3d) 245 (Ont. C.A.); Regina and Tracey, Re (1984), 44 O.R. (2d) 350 (C.A.).
18 [1994] 1 F.C. 742 (C.A.); affd [1994] 3 S.C.R. 1100.
19 [1983] 1 F.C. 343 (C.A.).
20 Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at pp. 791-792, aff. Robertson J.A. (1995), 127 D.L.R. (4th ) 329 (F.C.A.), at p. 337.
21 [1994] 1 S.C.R. 311.
SCHEDULE "A"
The Relevant Provisions of the Citizenship
Act, R.S.C., 1985, c. C-29, as
amended [and the Citizenship
Regulations, 1993]
Paragraph 3(1)(c) of the Citizenship Act:
3. (1) Subject to this Act, a person is a citizen if
. . .
| (c) the person has been granted or acquired citizenship pursuant to section 5 or 11 and, in the case of a person who is fourteen years of age or over on the day that he is granted citizenship, he has taken the oath of citizenship; |
Subsection 5(1) of the Citizenship Act:
5. (1) The Minister shall grant citizenship to any person who
| (a) makes application for citizenship; |
| (b) is eighteen years of age or over; |
| (c) has been lawfully admitted to Canada for permanent residence . . . |
. . .
| (d) has an adequate knowledge of one of the official languages of Canada; |
| (e) has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship; and |
| (f) is not under a deportation order . . . |
Subsection 3(6) of the Citizenship Regulations, 1993, SOR/93-246:
3. . . .
(6) On receipt of an application and materials forwarded to him pursuant to subsection (2) or (3), the Registrar shall forthwith cause to be commenced the inquiries necessary to determine whether the applicant meets the requirements of the Act and these Regulations with respect to the application.
Section 17 of the Citizenship Act:
17. Where a person has made an application under this Act and the Minister is of the opinion that there is insufficient information to ascertain whether that person meets the requirements of this Act and the regulations with respect to the application, the Minister may suspend the processing of the application for the period, not to exceed six months immediately following the day on which the processing is suspended, required by the Minister to obtain the necessary information.
Subsections 12(1), (2) and (3) of the Citizenship Act:
12. (1) Subject to any regulations made under paragraph 27(i), the Minister shall issue a certificate of citizenship to any citizen who has made application therefor.
(2) Where an application under section 5 . . . is approved, the Minister shall issue a certificate of citizenship . . .
(3) A certificate issued pursuant to this section does not take effect until the person to whom it is issued has complied with the requirements of this Act and the regulations respecting the oath of citizenship [Emphasis added.]
Subsections 14(1), (2), (5) and (6) of the Citizenship Act:
14. (1) An application for
| (a) a grant of citizenship under subsection 5(1) |
. . .
shall be considered by a citizenship judge who shall, within sixty days of the day the application was referred to the judge, determine whether or not the person who made the application meets the requirements of this Act and the regulations with respect to the application.
(2) Forthwith after making a determination under subsection (1) in respect of an application referred to therein but subject to section 15, the citizenship judge shall approve or not approve the application in accordance with his determination, notify the Minister accordingly and provide the Minister with the reasons therefor.
. . .
(5) The Minister or the applicant may appeal to the Court from the decision of the citizenship judge under subsection (2) by filing a notice of appeal in the Registry of the Court within sixty days after the day on which
| (a) the citizenship judge approved the application under subsection (2) |
. . .
(6) A decision of the Court pursuant to an appeal made under subsection (5) is, subject to section 20, final and, notwithstanding any other Act of Parliament, no appeal lies therefrom. [Emphasis added.]