Magalong v. Canada (Citizenship and Immigration), 2014 FC 966 : Citizenship Grant Quashed Because Minister Improperly Put Approved Application on Hold

The Federal Court reviewed the unusual circumstances of an applicant whose citizenship application had been approved and citizenship granted before he was charged with indictable offences.

The Court found that the Minister had no authority to place the already-granted citizenship application on hold, but declined to order that the applicant be permitted to take the citizenship oath because he was later convicted and became statutorily barred from citizenship.

Key Principle

Once the statutory requirements for citizenship have been met and citizenship has been granted, the Minister cannot simply place the application “on hold” without statutory authority.

However, mandamus is discretionary. Where the applicant later becomes subject to a statutory prohibition against being granted citizenship, the Court cannot compel the Minister to perform a duty that no longer exists.

Background

The applicant was a permanent resident of Canada who applied for citizenship in 2008. He passed the citizenship test, and a Citizenship Judge approved his application in December 2009.

During the processing of his citizenship application, the applicant became the subject of a police investigation concerning serious criminal offences. He was arrested in January 2010, but charges were not laid until approximately five months later.

Despite the investigation, the Minister formally granted citizenship on January 5, 2010. However, CIC placed the application “on hold” and never informed the applicant that his citizenship had been approved or that the file had been suspended.

The applicant was subsequently charged and convicted of indictable offences and sentenced to imprisonment followed by probation. CIC eventually closed his citizenship application and advised him that he was prohibited from taking the oath because of his conviction.

The applicant sought mandamus requiring the Minister to allow him to take the oath.

Court Findings

The Federal Court found that the Minister had no authority to place the citizenship application on hold after it had been approved and granted.

Section 5 of the Citizenship Act uses mandatory language requiring the Minister to grant citizenship once the statutory conditions are met. The Court also found that the limited exception allowing citizenship to be withheld after approval because of discovered misrepresentation did not apply because the applicant had not made any misrepresentation.

However, the Court could not grant the requested mandamus.

By the time of the application, the applicant had been convicted of indictable offences and was subject to a statutory prohibition against being granted citizenship. The Minister therefore no longer had a present legal duty to grant citizenship or administer the oath.

The Court distinguished cases where mandamus had been granted because those applicants remained legally eligible for citizenship. The Court also found that it would be inappropriate to order the Minister to administer the oath after the applicant completed probation because his circumstances could change before then.

Nevertheless, the Court found that CIC’s decision to close the citizenship application was unlawful and quashed that decision.

Outcome

The Federal Court allowed the judicial review in part, quashed CIC’s decision to close the citizenship application, but dismissed the application for mandamus. No costs were awarded.

Case Citation:

Magalong v. Canada (Citizenship and Immigration), 2014 FC 966 CanLII