Marshall v. Canada (Minister of Citizenship and Immigration), 2004 FC 34

Date: 20040112

Docket: IMM-5241-02

Citation: 2004 FC 34

CALGARY, Alberta, Monday, the 12^th day of January, 2004.

PRESENT:      THE HONOURABLE MR. JUSTICE von FINCKENSTEIN

BETWEEN:

                                                    ANDREW MARK MARSHALL

                                                                                                                                                         Applicant

                                                                                 and

                                    MINISTER OF CITIZENSHIP & IMMIGRATION

                                                                                                                                                     Respondent

                                               REASONS FOR ORDER AND ORDER

                                   (Delivered Orally from the Bench and Subsequently Written

                                                  and Edited for Precision and Clarification)

[1]         This is an application for judicial review of the decision of Immigration Division of the Immigration and Refugee Board of Canada (Board) which held that the applicant was not a Canadian citizen.

[2]                 The applicant at the hearing raised the issue of reasonable apprehension of bias by the presiding member. However this issue was not raised in the applicant's original pleadings, but only in a further Memorandum of Argument on behalf of the Applicant filed subsequently to receiving the Minister's Memorandum of Argument. Given that Rule 301(e) requires a complete and concise statement of the grounds intended to be argued, I believe it is too late at this stage as it was not part of the original application. In any event if there was such an issue, it should have been raised by motion before the presiding member and not now on judicial review

[3]                 However the presiding member made the following statement on page 155 of the Tribunal's record:

The only thing I can look at is the conclusion, and it's Citizenship that must decide whether or not he is a Canadian citizen. You could bring me all the documents you want, it wouldn't convince me.

[4]                 This statement shows a fundamental misunderstanding of the member's role. He is to decide on the basis of evidence presented before him whether the applicant is a Canadian citizen or not.

[5]                 A letter from the Department of Citizenship and Immigration attesting to the fact that they have no evidence of citizenship ever being granted is strong presumptive proof, (see Cheng v. MCI [1998], I.A.D.D., No 1531) but it is not determinative.

[6]                 Under s. 162 (1) of the IRPA the Board has the "sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdictions".

[7]                 The member when conducting a hearing under s. 36(1)(a) of the IRPA has to make the determination as to whether the applicant is a Canadian citizen or not. It is his decision and not that of Citizenship and Immigration.

[8]                 In light of his failure to make the required decision and in effect delegating it to Citizenship and Immigration I am allowing this application.

                                                  ORDER           

IT IS HEREBY ORDERED that:

The decision of the Board is set aside and the matter is being referred back to the Board for redetermination by another member.

                                                                                                                                    "K. von Finckenstein"

                                                                                                                                                            J. F. C.

                                                                 FEDERAL COURT

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             IMM-5241-02

STYLE OF CAUSE:                           Andrew Mark Marshall v.

Minister of Citizenship & Immigration

PLACE OF HEARING:                     CALGARY, Albert

DATE OF HEARING:                       January 12, 2004

REASONS FOR ORDER AND ORDER : von FINCKENSTEIN, J.

DATED:                                                January 12, 2004

APPEARANCES:

Ms. Roxanne Haniff-Darwent                                                        FOR APPLICANT

Mr. Rick Garvin                                                                             FOR RESPONDENT

SOLICITORS OF RECORD:

Darwent Law Office

Calgary, Alberta                                                                             FOR APPLICANT

Morris Rosenberg

Deputy Attorney General of Canada     FOR RESPONDENT