Breach of procedural fairness for citizenship judge not to explicitly consider request for extension of time

APPEAL

Breach of procedural fairness for citizenship judge not to explicitly consider request for extension of time

Appeal of citizenship judge’s decision denying citizenship application based on prohibition related to criminal charges in s. 22(1)(b) of Citizenship Act (Can.). On November 1, 2004, applicant filed application for Canadian citizenship. On May 31, 2006, applicant was charged with offences under Criminal Code (Can.), specifically conspiracy to commit indictable offence, fraud over $5,000, possession of property obtained by crime, commission of offence for criminal organization. On August 10, 2010, Citizenship and Immigration Canada (“CIC”) mailed applicant Request for Court Information Sheet or Certificate of Conviction to assess whether applicant was now prohibited from becoming Canadian citizen. On September 14, 2010, citizenship judge hand delivered second request. Applicant had 60 days from date of initial request to comply, but failed to do so. On October 7, 2010, applicant and his counsel prepared a request for a 90-day extension of time to file materials and fulfill criminality requirements of Act. In this request he noted that some of charges had been withdrawn and his criminal counsel was seeking to stay proceedings for delay based on s. 11(b) of Canadian Charter of Rights and Freedoms. According to courier company, Fedex, request and supporting documents were received on October 13, 2010. Regardless, in short letter dated same day, citizenship judge denied citizenship application, citing criminal charges and failure to comply with requests for additional information. Citizenship judge considered whether he should make favourable recommendation to Minister to exercise discretion under s. 5(3) and (4), but after reviewing applicant’s submissions found that this was not warranted in circumstances. Request for extension of time was not referred to in citizenship judge’s letter. Appeal allowed. It was breach of procedural fairness for citizenship judge not to explicitly consider request for extension of time to provide further information in denying citizenship application on basis of criminal charges under s. 22(1)(b) of Act.

Eze v. Canada (Minister of Citizenship and Immigration) (Jan. 24, 2012, F.C., Near J., File No. T-122-11) 213 A.C.W.S. (3d) 273 (9 pp.).