|
Citizenship - Marriage. Tan v. Canada (Citizenship and Immigration) [marriage of convenience]
In Tan v. Canada (Citizenship and Immigration) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, this brought against a JR dismissal determining whether: "section 10 of the Citizenship Act, by which citizenship that was obtained by “false representation or fraud or by knowingly concealing material circumstances” may be revoked, violate paragraph 2(e) of the Canadian Bill of Rights".
Here the court illustrates Citizenship Act law, proceedings and litigation bearing on 'marriages of convenience':[8] In 2011, Canada Border Services Agency (CBSA) undertook an investigation of potential marriages of convenience and identified Ms. Tan as having entered into a fraudulent marriage. In the course of CBSA’s investigation, Ms. Tan’s first husband and sponsor provided a statutory declaration in which he confirmed that he had been paid to marry and sponsor Ms. Tan, that their marriage was fraudulent and that he had had no contact with her after their staged wedding.
[9] In 2015, Immigration, Refugees and Citizenship Canada (IRCC) initiated a first citizenship revocation proceeding against Ms. Tan under the then-current revocation provisions of the Citizenship Act: Citizenship Act, R.S.C. 1985, c. C-29, as amended by the Strengthening Canadian Citizenship Act, S.C. 2014, c. 22. For clarity, I will refer to this version of the legislation as the "“""2015 Citizenship Act”". IRCC sent a Notice of Intent to Revoke Citizenship to Ms. Tan on August 6, 2015. Ms. Tan provided written representations in response denying the allegations made by her first husband. She also submitted that the revocation regime contemplated in the 2015 Citizenship Act was unconstitutional and illegal.
[10] In 2017, in a separate challenge to the constitutionality of the revocation regime as it then existed, the Federal Court found that subsections 10(1), 10(3) and 10(4) of the 2015 Citizenship Act violated paragraph 2(e) of the Bill of Rights and declared the provisions inoperative: Hassouna v. Canada (Citizenship and Immigration), 2017 FC 473 (Hassouna).
[11] Unsurprisingly, IRCC cancelled its revocation proceeding against Ms. Tan following the Hassouna decision.
[12] In 2018, Parliament brought into force the current citizenship revocation provisions, being sections 10 to 10.7 of the Citizenship Act: An Act to amend the Citizenship Act and to make consequential amendments to another Act, S.C. 2017, c. 14. Sections 10 and 10.1 of the Citizenship Act are reproduced in full in Schedule A to these Reasons.
[13] The same year, IRCC sent two request for information letters to Ms. Tan, advising her that IRCC was in possession of information indicating she may have obtained Canadian citizenship by false representation, fraud or knowingly concealing material circumstances. The second request letter offered Ms. Tan the opportunity to make written representations before revocation proceedings commenced and, on May 24, 2018, she did so.
[14] On October 30, 2019, IRCC sent Ms. Tan a Notification letter in accordance with subsection 10(3) of the Citizenship Act advising her that it was initiating a second citizenship revocation proceeding. The Notification summarized the information in Ms. Tan’s file and stated that IRCC had concluded, on a balance of probabilities, that Ms. Tan may have falsely represented herself in the course of her application for permanent residence by entering into a marriage of convenience, thereby fraudulently obtaining permanent resident status and Canadian citizenship. Ms. Tan was again offered the opportunity to make written representations in response, including representations related to her personal circumstances, and to provide documentary evidence: subsections 10(3) and 10(3.1) of the Citizenship Act. IRCC attached a Request to Have Your Case Decided by the Minister of Immigration, Refugees and Citizenship Canada form to the Notification which Ms. Tan could complete and submit with her response to the Notification if she wished to have her case decided by the Minister. Otherwise, her file would be referred to the Federal Court for decision: paragraph 10(3)(d) and subsections 10(4.1) and 10.1(1) of the Citizenship Act.
[15] Ms. Tan provided written representations concerning her personal circumstances and documents in support of her case on January 24, 2020, and elected to have the Minister decide her case. Ms. Tan admitted the fraudulent nature of her first marriage in her 2020 representations but stated that she had been "“scammed”" into the marriage as a young woman and was remorseful. In addition, Ms. Tan requested an oral hearing before the Minister on the ground that credibility would be a central issue requiring oral testimony, citing Hassouna at para. 91. She did not challenge the constitutionality of the new citizenship regime.
II. The Minister’s Decision
[16] The Delegate revoked Ms. Tan’s Canadian citizenship under subsection 10(1) of the Citizenship Act in the circumstances described in section 10.2. The Delegate found that Ms. Tan had concealed the fact she had entered into a marriage of convenience to obtain immigration status in Canada and, on a balance of probabilities, had obtained Canadian citizenship by false representation, fraud or knowingly concealing material information. Upon revocation, Ms. Tan became a foreign national, a status defined in subsection 2(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) to mean "“a person who is not a Canadian citizen or a permanent resident, and includes a stateless person”".
[17] Having set out details of Ms. Tan’s immigration history, the Delegate addressed Ms. Tan’s request for a hearing. Subsection 10(4) of the Citizenship Act permits the Minister to hold a hearing if they are of the opinion one is required based on prescribed factors listed in section 7.2 of the Citizenship Regulations, S.O.R./93-246 (Regulations). One of those factors is the existence of evidence that raises a serious issue of credibility: paragraph 7.2(a). The Delegate considered the prescribed factors and the facts of Ms. Tan’s case and concluded that a hearing was not required.
[18] The Delegate next considered the intentional nature and consequences of Ms. Tan’s misrepresentation. The Delegate stated that Ms. Tan had misrepresented key aspects of her application for permanent residence by not disclosing she had entered into a marriage of convenience for the sole purpose of obtaining immigration status in Canada. In the Delegate’s opinion, had immigration officials known of the misrepresentation, her application would not have been approved and she would not have become a permanent resident. Further, despite multiple opportunities to be truthful, Ms. Tan maintained her misrepresentation through many interactions with CBSA and IRCC officials, which undermined her claim of strong remorse.
[19] Ms. Tan relied on five factors to argue that her Canadian citizenship should not be revoked in light of her personal circumstances: her remorse, the best interests of her two children, establishment in Canada, statelessness and hardship in China. The Delegate addressed each of the five factors in detail but concluded that those factors were insufficient to warrant special relief from revocation in light of Ms. Tan’s repeated false representation.
III. The FC Decision
[20] At the Federal Court, Ms. Tan argued that sections 10 and 10.1 of the Citizenship Act violate paragraph 2(e) of the Bill of Rights and section 7 of the Charter, and that the Minister’s Decision was unreasonable. As Ms. Tan had requested that her case be decided by the Minister, the Federal Court concluded that section 10.1 was not at issue and, therefore, considered only the constitutional validity of section 10, with references to section 10.1 as required.
[21] The Federal Court first determined that Ms. Tan had not raised the constitutional validity of section 10 of the Citizenship Act before the Delegate. The Court concluded that the constitutional issues should have been put before the Delegate and that it was not appropriate to address those issues for the first time on judicial review, citing Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 (Alberta Teachers) and Goodman v. Canada (Public Safety and Emergency Preparedness), 2022 FCA 21 (Goodman).
[22] The Federal Court nevertheless undertook a detailed analysis of the process established in section 10 for the revocation of Canadian citizenship and addressed Ms. Tan’s constitutional arguments. The Federal Court first found that the personal circumstances of an individual subject to revocation would always be considered in the revocation process, whether the individual elects to have their case determined by the Minister under paragraph 10(3.1)(b) of the Citizenship Act or, by default, their case is decided by the Federal Court pursuant to section 10.1. The Federal Court stated that subsection 10(4.1) requires the Minister, in all cases in which an individual makes representations under paragraph 10(3.1)(a), to consider those representations and determine whether the individual’s personal circumstances warrant special relief. If the Minister concludes that they do, the revocation process is at an end. Only if the representations do not warrant relief does the Minister make the revocation decision or refer the matter to the Federal Court.
[23] With respect to Ms. Tan’s argument that section 10 of the Citizenship Act violates the principles of procedural fairness contrary to paragraph 2(e) of the Bill of Rights, the Federal Court considered the conditions necessary for the revocation process to be procedurally fair (Hassouna at para. 91): (1) an oral hearing before a Court, or before an independent administrative tribunal, where there is a serious issue of credibility; (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.
[24] Ms. Tan argued that the revocation process contemplated in sections 10 and 10.1 lacks independence in part because an individual facing revocation has an incentive to request their case be decided by the Minister. Only then will their personal circumstances be considered and, therefore, the individual’s right of access to the Federal Court by way of action does not cure the lack of independence and impartiality inherent in the process. The Federal Court disagreed, repeating its conclusion that the individual’s personal circumstances are assessed by the Minister in every case, including those that proceed before the Federal Court.
[25] The Federal Court also found that the individual’s access to an action in the Federal Court would include the right to disclosure and discovery and ensure adequate disclosure to the affected individual. Also, Ms. Tan had not demonstrated that the Minister’s disclosure obligation is inadequate or that she herself had received inadequate disclosure that compromised her ability to meet the case against her. With respect to Ms. Tan’s argument that the process is unfair due to the restriction placed on the Minister’s ability to hold a hearing, the Federal Court stated that Hassouna does not require a hearing in all cases, only in those involving serious issues of credibility. Section 7.2 of the Regulations specifically contemplates a hearing in such cases.
[26] The Federal Court then considered whether the citizenship revocation process engages section 7 of the Charter. Relying on the analysis in Hassouna, the Federal Court concluded that section 7 is not engaged as the revocation of citizenship for fraud or misrepresentation does not itself interfere with a person’s right to life, liberty or security of the person. The Federal Court noted Ms. Tan’s position that a law that is not compliant with paragraph 2(e) of the Bill of Rights is equally not compliant with the requirements of fundamental justice under section 7 but found that the jurisprudence of this Court does not support Ms. Tan’s argument.
[27] Finally, the Federal Court determined that the Minister’s Decision was not unreasonable. The Court found no error in the Delegate’s conclusion that an oral hearing was not required and assessed whether the Delegate reasonably considered the personal circumstances raised by Ms. Tan. The Court concluded that Ms. Tan’s arguments on judicial review amounted to a disagreement with the Delegate’s weighing of the evidence and that Ms. Tan had pointed to no evidence that had been ignored by the Delegate.
|
