The Right to a Fair Hearing as a Principle of Fundamental Justice
Section 10 of the Citizenship Act allows the federal government to revoke the citizenship of a person who obtained their citizenship by making false representations. Gerami Law PC represents a 19-year-old Montreal woman who was subjected to the application of this law. In 2006, when she was still a minor, she was granted citizenship. More than a decade later, in 2016, the government has alleged that her mother had misrepresented on their citizenship application the number of days she spent outside of Canada in the five years preceding the application. As a result, the government not only stripped the mother of her citizenship, but took away her daughter’s citizenship as well.
Any false representation on an immigration application or a citizenship application that culminated into the granting of Canadian citizenship can result in its revocation. Currently, the federal government has the discretion to exercise this power with little procedural safeguards in place, as there are no defined exceptions or factors that must be considered by the decision-maker in rendering their decision to revoke. This results in a fact-finding decision based simply on misrepresentation without regard to the circumstances of the person or to the compelling reasons why they should keep their citizenship.
There is no guarantee of an oral hearing; whether an oral hearing is granted is entirely at the discretion of the decision-maker. This is especially problematic because decision-makers do not have legal training and do not possess the expertise needed to render a decision in a procedurally fair manner that is consistent with the constitutional values of the Charter of Rights and Freedoms. As a result, the vast majority of persons subjected to the application of this law are not granted an oral hearing. Even if a hearing were to be granted, the Minister envisioned this as an informal interview, without the right to disclosure, the right to counsel, and the right to present and cross-examine witnesses. Denying the right to make oral submissions and denying safeguards that come along with an oral hearing is procedurally unfair in administrative law matters where important facts are in dispute, where an assessment of the person needs to be undertaken, and where the decision has a significant impact on the person, which is all the case in these revocation proceedings.
A constitutional challenge of the Citizenship Act has thus been launched at the Federal Court seeking a declaration that section 10 is unconstitutional and of no force or effect, and seeking a prohibition from applying it against the 19-year-old woman. Although a stay of proceedings on the Minister’s decision to revoke the 19 year old woman’s citizenship has been granted in this case until the courts rule on the constitutionality of the process, in the meantime the federal government has stated that it will continue to revoke the citizenship of other immigrants who misrepresented on their applications. This decision by the government to continue stripping citizenship from immigrants comes despite the fact that they have acknowledged the revocation process is unfair. This is especially problematic for persons who can’t find a lawyer or who don’t have the knowledge or resources to hire a lawyer, as they may not be able to challenge the Minister’s decision to revoke where they may have grounds to do so.