Canadian Federal Court says citizenship revocation offends Bill of Rights

Abdulla Ahmad Hassouna et al v The Minister of Citizenship and Immigration [2017] FC 473 (10 May 2017)

Summary

The Canadian Federal Court has ruled the current procedure for revoking citizenship unconstitutional for depriving affected individuals of a fair hearing – a right protected by the Canadian Bill of Rights (Bill of Rights).

Facts

The Canadian Citizenship Act, RSC 1985, c C-29 (Citizenship Act) provides that person's citizenship can be revoked where that citizenship was obtained through fraud or misrepresentation.

(a) Former revocation procedure

Prior to 2015, a final revocation decision could only be made by the Governor in Council, based on a report by the Minister of Citizenship and Immigration (Minister). Before issuing that report, the Minister was required to provide written notice to the affected individual outlining the grounds for revocation. The individual could then, as of right, have the matter referred to the Federal Court for an oral hearing and full disclosure of relevant materials.

If the Court was satisfied on a balance of probabilities that the individual had obtained citizenship by fraud or misrepresentation, a declaration to that effect would be issued, and only then could the Minister send the final report to the Governor in Council (including any further written submissions by the affected individual). Importantly, the Governor in Council retained a discretion not to revoke on compassionate grounds, if appropriate in all the circumstances.

(b) Amended revocation procedure

The procedure for revoking (or proposing to revoke) citizenship on the grounds of fraud or misrepresentation was amended by the Strengthening Canadian Citizenship Act, SC 2014, c 22 in May 2015. The amended Citizenship Act (Amended Act) does away with the Governor in Council's discretion, and with the automatic right of the affected person to a hearing before the Federal Court. Instead, citizenship can be revoked by the Minister if he or she "is satisfied on a balance of probabilities that the person has obtained, retained, renounced or resumed his or her citizenship by false representation or fraud or by knowingly concealing material circumstances" (section 10(1)). Prior to revoking citizenship, the Minister must provide written notice stating the grounds for the decision and informing the person of their right to make written representations (section 10(3)). There is no requirement that the Minister disclose or produce the evidence relied upon in reaching that decision.

In contrast to the former regime, the Minister has the discretion to allow a hearing to be held if, "on the basis of prescribed factors", they are "of the opinion that a hearing is required" (section 10(4)). Those factors include where there is a serious issue of the individual's credibility. Notice of the Minister's final determination is provided in writing, with the sole recourse being an application for leave for judicial review (section 22.1).

In Abdulla Ahmad Hassouna et al v The Minister of Citizenship and Immigration [2017] FC 473, Justice Gagné heard jointly eight applications for judicial review challenging the constitutionality of the revocation procedure in the Amended Act on the basis that it:

  • violates the right to a fair hearing protected by paragraph 2(e) of the Bill of Rights;
  • violates a person's right to life, liberty and security of the person as protected by section 7 of the Canadian Charter of Rights and Freedoms (Charter); or
  • subjects an individual to cruel and unusual treatment in violation of section 12 of the Charter.

Decision

The Court found that the revocation procedure under the Amended Act violated the right to a fair hearing protected by paragraph 2(e) of the Bill of Rights. That provision requires that Canadian laws are construed so as not to "deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations".

Justice Gagné noted that when conducting an analysis under the Bill of Rights as to whether a law violates the principles of fundamental justice, one must first establish the degree of procedural fairness owed, acknowledging that what is required varies with the context of each case, the particular statute, and the rights affected. Given the importance of the decision to the Applicants, Justice Gagné thought a high degree of procedural fairness was owed in the present case. This was especially so as there is no right of appeal under the Amended Act from a revocation decision of the Minister.

Justice Gagné went on to hold that in order for the revocation process to be procedurally fair it should include: (1) where there is a serious issue of credibility, an oral hearing before a Court or before an independent administrative tribunal; (2) a fair opportunity to state the case and know the case to be met; and (3) the right to an impartial and independent decision-maker. Her Honour found that the revocation procedure under the Amended Act failed in all three aspects.

Regarding the first aspect, Justice Gagné noted that under the Amended Act procedure, if a notice was sent but not received by the affected individual, the process could nevertheless proceed and citizenship be revoked without the individual's knowledge or ability to provide any submissions.  In those circumstances, Her Honour pointed out the Minister's "double discretion" as to whether an oral hearing would be held. The Amended Act provides that the Minister may hold an oral hearing where (amongst other things) there is a serious issue of the individual's credibility if he or she is of the opinion that a hearing is required. In practice, the Minister could therefore be of the opinion that there is a serious issue of credibility and still deny a request for an oral hearing, even where the individual is unable to provide written submissions. Her Honour noted that this was inconsistent with the decision of the Canadian Supreme Court in Singh v Minister of Employment and Immigration [1985] 1 SCR 177 that where there are serious issues of a person's credibility, the opportunity to make written submissions alone is insufficient.

As to the second and third aspects, Justice Gagné found that simply stating the grounds upon which the Minister relies was insufficient in the absence of a requirement to disclose related evidence. This erodes the right of the affected individual to know the case to be met and the right to make a defence. Further, Her Honour held that the revocation process did not provide the Applicant's with an impartial and independent decision maker, since the decision maker who issued the initial notice of the impending revocation decision could be the same decision maker ultimately charged with making the decision to revoke. Both decisions require the adjudicator to decide on the balance of probabilities where a misrepresentation has occurred, and the same decision maker is unlikely to decide the matter differently at each stage. In those circumstances, a reasonably informed bystander could reasonably perceive bias on the part of the relevant decision maker under the Amended Act procedure.

Finally, in addition to the three aspects of procedural fairness outlined above, Justice Gagné sided with the Applicants' argument that the revocation procedure should specifically require the decision-maker to consider an affected individual's personal circumstances on the basis of humanitarian and compassionate grounds. In Her Honour's view, given the importance of citizenship and the consequences that could result from its loss, the principles of fundamental justice required a final discretionary review of all the circumstances of a case.

Justice Gagné held that the conflict between the procedure under the Amended Act and paragraph 2(e) of the Bill of Rights could not be avoided by interpretation and declared the impugned provisions to be inoperative.

Although unnecessary to decide in light of Her Honour's findings on procedural fairness, Justice Gagné rejected the Applicants' arguments concerning sections 7 and 12 of the Charter.

Commentary

Despite the dominance of the Charter in rights protection, this case makes clear that the Bill of Rights still has important work to do when it comes to protecting the right to a fair hearing in Canada. Following on from Justice Gagné's decision, the Canadian Parliament has recently passed new Bill C-6, which includes many of the amendments recommended by Her Honour, including reinstating a right to have the Minister's decision referred to the Federal Court. These changes are expected to take effect in early 2018.

Justice Gagné's clear and practical expression of the requirements of procedural fairness may also be instructive in a Victorian context where there is an alleged violation of the right to a fair hearing in section 24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Victorian Charter). Section 32 of the Victorian Charter expressly allows for judgments of foreign courts relevant to a human right to be considered in interpreting a statutory provision. Similar provisions are found in the Australian Capital Territory's Human Rights Act 2004 (ACT) (see sections 21 and 31(1), respectively).

While there may be some disagreement over the extent to which the concept of 'fundamental justice' in paragraph 2(e) of the Bill of Rights differs from the concept of 'natural justice' underpinning the procedural fairness requirement in Australian common law, Her Honour's analysis in this case broadly accords with the approach taken by Australian courts. It is unlikely, however, that a Victorian (or any Australian) court would go as far as Justice Gagné did in accepting that the ability to make a decision on humanitarian and compassionate grounds is a legal principle, and in relying on that principle to effectively hold that the discretion in the former regime should be reinstated. Given the relatively rigid adherence to the constitutional separation of powers in Australian jurisprudence, such prescription would arguably be seen as an unacceptable attempt to legislate from the bench.

The Australian Minister for Immigration and Border Protection also has wide ranging discretionary powers to revoke the citizenship of dual citizens. In late 2015 the government made changes to the Australian Citizenship Act 2007 (Cth) giving the immigration minister broad powers to revoke a person’s Australian citizenship under section 34 of the Act. However, section 52 of the Act does explicitly provide that the Administrative Appeals Tribunal can review the minister’s decision to revoke a person’s Australian citizenship under section 34.

The full text of the decision is available here.

Tessa Meyrick is a Senior Associate and Adam Percy is a Lawyer at Allens.