Ma v. Canada (Minister of Citizenship and Immigration), docket T-978-98

Date: 19990303

Docket: T-978-98

BETWEEN:

     CHI KOON RALPH MA

     SHUN YEE ELSIE CHAN

     Applicants

     - and -

     MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

REED, J.:

[1]      This is an appeal of two decisions of a citizenship judge that denied the applicants citizenship because they had not fulfilled the residency requirement of section 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29.

[2]      Subsection 14(5) of the Citizenship Act provides for appeals from decisions of citizenship judges to this Court:

(5) The Minister or the applicant may appeal to the Court from the decision of the citizenship judge under subsection (2) by filing a notice of appeal in the Registry of the Court within sixty days after the day on which

(5) Le ministre et le demandeur peuvent interjeter appel de la décision du juge de la citoyenneté en déposant un avis d'appel au greffe de la Cour dans les soixante jours suivant la date, selon le cas:

(6) A decision of the Court pursuant to an appeal made under subsection (5) is, subject to section 20, final and, notwithstanding any other Act of Parliament, no appeal lies therefrom.

(6) La décision de la Cour rendue sur l'appel prévu au paragraphe (5) est, sous réserve de l'article 20, définitive et, par dérogation à toute autre loi fédérale, non susceptible d'appel.

[3]      Prior to April 25, 1998, the procedure used on such appeals was a hearing de novo before a Federal Court judge. Since that date the Federal Court Rules, 1998, SOR/98-106, have provided that appeals are to be dealt with as applications (see Rule 300 et seq.) procedurally in a manner somewhat similar to judicial reviews.

[4]      The present applications assert two grounds of appeal: (1) the citizenship judge erred in law in assessing the residency requirement by placing too much emphasis on the requirement of physical residence; (2) the applicants were not given a fair opportunity to present their case to the citizenship judge.

[5]      I cannot find any merit to the first argument on the basis of the evidence on the record; the second, however, is supported by the evidence. The applicants were called to an interview on March 2, 1998, for a hearing of their citizenship applications. At that hearing the citizenship judge indicated that she had not reviewed the residency questionnaires that the applicants had submitted and that she needed time to do so. The applicants' physical presence in Canada was 338 days (Shun Yee Elsie Chan) and 441 days (Chi Koon Ralph Ma) short of the 1095 required between May 6, 1994, and May 8, 1997. Thus, the question became whether any of the days of physical absence should be counted as deemed residence within the country.

[6]      The citizenship judge declined to make a decision at the time and indicated that she would be in touch with counsel. The following day she contacted counsel for the purpose of scheduling a continuation of the interview. Her notes indicate that she considered that a "partial hearing" had been held on March 2, 1998, and that she "rescheduled" a completion of the hearing for March 10, 1998. On March 3, 1998, the applicants had returned to Hong Kong where they were working and where they had a young son. The applicants were apparently notified on March 5, 1998, of the March 10th continuation of the hearing, but found it difficult, if not impossible, to return to Canada in time.

[7]      The applicants' counsel and his law clerk went to the March 10, 1998, hearing to represent their clients, and if necessary to seek an adjournment of that hearing on behalf of their clients. At the end of the interview counsel for the applicants indicated to the citizenship judge that if she wished to interview his clients further, they were prepared to attend. The citizenship judge responded by saying that she would fax counsel a list of questions for his clients to answer and once she received the answers she would decide whether another hearing was necessary. Approximately two hours later a message was received in counsel's office that the judge was going to render her decision without waiting for further enquiry; this she did.

[8]      The question then arises as to what remedy is appropriate in these circumstances. An appeal pursuant to subsection 14(5) of the Citizenship Act is not a judicial review application under section 18 of the Federal Court Act, R.S.C. 1985, c. F-7. Section 18.5 states that when an appeal is provided for in an Act, judicial review pursuant to sections 18 and 18.1 is not available:

18.5 Notwithstanding sections 18 and 18.1, where provision is expressly made by an Act of Parliament for an appeal as such to the Court, to the Supreme Court of Canada, to the Court Martial Appeal Court, to the Tax Court of Canada, to the Governor in Council or to the Treasury Board from a decision or order of a federal board, commission or other tribunal made by or in the course of proceedings before that board, commission or tribunal, that decision or order is not, to the extent that it may be so appealed, subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with, except in accordance with that Act.

18.5. Par dérogation aux articles 18 et 18.1, lorsqu'une loi fédérale prévoit expressément qu'il peut être interjeté appel, devant la Cour fédérale, la Cour suprême du Canada, la Cour d'appel de la cour martiale, la Cour canadienne de l'impôt, le gouverneur en conseil ou le Conseil du Trésor, d'une décision ou d'une ordonnance d'un office fédéral, rendue à tout stade des procédures, cette décision ou cette ordonnance ne peut, dans la mesure où elle est susceptible d'un tel appel, faire l'objet de contrôle, de restriction, de prohibition, d'évocation, d'annulation ni d'aucune autre intervention, sauf en conformité avec cette loi.

[9]      The Citizenship Act states that the proceeding is to be an appeal. Appeals in general are based on the record of the proceeding below, albeit of a more comprehensive nature than a judicial review. (There is often a provision allowing for the adducing of further evidence with leave of the appellate Court). The 300 Rules do not say whether in the case of citizenship appeals, the affidavits that are to be filed in support of the application may contain new evidence or not. Counsel for the respondent argues that the applicants were required to submit to me by affidavit the evidence they would have presented to the citizenship judge had the hearing been continued, so that I could make a final decision on the citizenship applications, albeit not on the basis of viva voce evidence. Counsel argues that since the applicants failed to provide such evidence their appeal must be dismissed.

[10]      I am not persuaded that this is my only recourse, nor that I am without authority in a case such as the present to quash the decision below and refer the application back for rehearing. Inherent in an appeal process is the authority to refer the matter back for rehearing. Indeed, even under the old de novo hearing procedure, referral back for rehearing was ordered where a citizenship judge failed to consider some matter that should have been considered: see In the Matter of Moa-Song Chang, (T-1183-97, February 5, 1998).

[11]      For the reasons given the appeal is allowed and the applicants' applications of May 8, 1997, are referred back for reconsideration by a different citizenship judge.

                                     Judge

OTTAWA, ONTARIO

March 3, 1999