My client was facing enforcement action by CBSA. It was a years long, seemingly interminable investigation as to her first marriage. After securing a response to an Access to Information Request (which yielded interesting details, including the fact that her citizenship application had been “put on hold”) I filed an Application for Judicial Review and sought the prerogative writ of mandamus, which, in essence, compels the Respondent to do something that they’re supposed to do (in this case, make a decision on that investigation). My thinking was that if a decision is made to close that file, then processing on the citizenship will follow; if a decision was made to write and refer a report alleging inadmissibility, then my client would be able to challenge that at a hearing before the Immigration Division and, if necessary, appeal any removal order to the Immigration Appeal Division.
Leave was granted; at the hearing in July of this year it was clear that the presiding Justice was reluctant to grant mandamus in this sphere; he urged me to challenge the decision to suspend processing on the citizenship application instead (based on just one line that survived redacting in hundreds of pages). The client herself was never notified that her citizenship application was suspended (a breach of procedural fairness). I did as the Justice suggested; my client’s citizenship is now proceeding to finalization. That’s not quite the end of the matter. Despite the Respondent characterizing my application as being moot, I am not discontinuing and would like to have the direction of the Court in my client’s case as well.
There was a case, Ovalle v. MCI 2015 FC 935 that was released in the same month that I appeared for my hearing. That case granted mandamus for the suspension of citizenship processing. In that case, yet again, it was CBSA that was taking enforcement action and CIC decided to suspend processing on the citizenship application.
CIC is not telling individuals that their citizenship is being suspended because CBSA is taking enforcement action. That’s why it’s imperative that if your citizenship application is taking longer than posted timeframes that an ATI request is made for the complete physical and electronic files held by both CIC and CBSA.
There’s “no statutory authority” for CIC to suspend processing because of pending applications to cessate or investigations by CIC. They can suspend processing, but that power is extremely limited, and spelled out explicitly in the legislation and regulation.
CBSA can only interfere with the process to grant citizenship if the applicant is subject, or should be subject, to an admissibility hearing or removal order: Stanizai v. MCI 2014 FC 74 and referenced in Ovalle, paragraph 15.
Justice Russell in Ovalle found, remarkably, that there was an abuse of process. I believe the same can be said for my case. In Ovalle, there was no request for costs. The same can’t be said for my case.