Date: 20081201
Docket: T-507-08
Citation: 2008 FC 1340
Ottawa, Ontario, December 1, 2008
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
GERHARD
BANMAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr.
Banman appeals the decision of Citizenship Judge Michel C. Simard, dated
February 14, 2008, rejecting his application to Register and Retain Canadian Citizenship
and refusing to make a recommendation to the Governor in Council under subsection
5(4) of the Citizenship Act, to grant him citizenship in order to
alleviate special and unusual hardship.
[2]
Mr.
Banman is a person who is described in section 8 of the Citizenship Act,
as he was born outside of Canada to a person (or persons) who is entitled to
Canadian citizenship under subsection 3(1)(b) or 3(1)(e) of the Act. Under
section 8 of the Act, if Mr. Banman wished to retain his citizenship he was
required to make application to Register and Retain his Canadian Citizenship
before attaining the age of 28.
[3]
Mr.
Banman was born August 13, 1978, in Mexico, and thus he turned 28
on August 13, 2006. He filed his application for Retention and Registration of
Canadian Citizenship on January 10, 2007 - some five months after his 28th
birthday. The Citizenship Judge held that on the date of application Mr.
Banman had ceased to be a Canadian citizen and thus could not, on the date of
application, retain his citizenship, as it no longer existed.
[4]
The
Citizenship Judge also considered whether it would be appropriate for him to
make a recommendation to the Governor in Council under subsection 5(4) of the Act.
That provision provides that “in order to alleviate cases of special and
unusual hardship or to reward services of an exceptional value to Canada … the
Governor in Council may, in his discretion, direct the Minister to grant
citizenship to any person and, where such a direction is made, the Minister
shall forthwith grant citizenship to the person named in that direction".
[5]
The
Citizenship Judge, incorrectly in his decision, indicated that under subsection
5(4) he was to consider whether to make a recommendation to grant citizenship
in order to alleviate special and unusual hardship “despite failure to meet [the]
residency requirement". Counsel for the Minister advised Mr. Banman and
the Court, at the hearing of this matter, that the Minister would consent to an
Order to have the matter of a recommendation under subsection 5(4) being sent
back for redetermination by different citizenship judge.
[6]
At
the hearing of this appeal, and after ruling that the new evidence contained in
the affidavit of Mr. Banman would not be considered on this application as it
was not evidence before the Citizenship Judge, and in light of the offer of the
Minister to allow the appeal on the ground that it be sent back for
redetermination under subsection 5(4) of the Act, Mr. Banman advised the Court
that he wished to accept the Minister’s offer, and that he would consent to
such an Order. In all of the circumstances, the Court will issue an Order, on
consent; however, I wish to add my own comments concerning the matter of the
subsection 5(4) reconsideration.
[7]
Mr.
Banman provided little, if any, evidence which would have warranted a
recommendation under subsection 5(4) in his original application. That is not
to say that there is not evidence available to support such a recommendation –
far from it. His failure to provide such evidence with his application is largely,
if not entirely, because the form provided by the Respondent contains no
indication that such a recommendation is possible nor any suggestion that the
applicant submit such evidence. In Huynh v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. No. 1838, 2003 FC 1431,
Justice Harrington considered a similar fact situation involving Ms. Huynh. He
wrote:
The forms do not specifically
state that she is entitled to bring material which would at least give rise to
a consideration of humanitarian issues. The imperfections of the forms were
noted by Gibson J. in Maharatnam v. Canada (Minister of Citizenship and
Immigration),
[2000] F.C.J. 405. He said, and I agree, that since most applicants appear
before a Citizenship Judge without counsel, and are likely to be unfamiliar
with the existence of humanitarian and compassionate discretion, in the
interest of fairness, it might be useful to include a brief notice regarding
the existence of discretion in the NOTICE TO APPEAR".
[8]
In
this instance, as there was no oral hearing, a Notice to Appear never issued.
It is presumed that applicants under the Act know the law and its requirements;
however, as the Minister provides a form to persons making applications to
retain citizenship, fairness suggests that the form should indicate that there
exists the possibility of a recommendation under subsection 5(4) of the Act if
the application is otherwise rejected. Alternatively, in circumstances such as
exist here where the application is rejected because it was filed late, the
Citizenship Judge, in the interests of fairness, might consider advising the applicant
that there exists the potential for reinstatement of citizenship under subsection
5(4) of the Act and asking the applicant if he or she has any information they
wish the Citizenship Judge to weigh when considering whether to make a
recommendation. Such a course seems to me to be fairer than simply ruling whether
to make such a recommendation when there is no relevant information before the
Citizenship Judge.
[9]
As
indicated previously, Mr. Banman did provide evidence that was not before the Citizenship
Judge, that should weigh heavily in his favour in considering whether to make a
recommendation under subsection 5(4) of the Act. In particular, the Court
notes that Mr. Banman has resided in Canada continuously since about
the age of 2 ½ when his parents relocated their family back to Canada. He
attended school in Ontario, obtaining an Honours Science Degree and
subsequently a BScPharm from the University of Toronto. He
presently works as a Clinical Pharmacist/Pharmacy Meditech Consultant with St.
Mary's General Hospital in Kitchener, Ontario. He is
married to a Canadian and has three Canadian born children. He made the
application immediately upon learning that it was required, in his
circumstances, if he was to retain his Canadian citizenship. In short, he has
lived most of his life in Canada, has been and continues to be a
contributor to this country, and he wishes to be a Canadian citizen. He asserted
in his affidavit that the loss of his citizenship has caused serious emotional
distress to both his family and himself.
[10]
The
evidence provided indicates that pharmacists are in short supply in Canada and that
they are essential to the health care system that serves its citizens. In Re
Naber-Sykes, [1986] 3 F.C. 434, Justice Walsh characterized loss of
employment and the deprivation to Canada of highly qualified
citizens as factors going to hardship. I agree. In this case, the potential
depravation to Canada of a qualified pharmacist such as Mr. Banman,
would be truly regrettable and not in the best interests of the citizens of
this country.
[11]
In
the circumstances, Mr. Banman will be permitted an opportunity to provide
whatever evidence he considers relevant in support of a reconsideration of a
recommendation under subsection 5(4) of the Act. While the decision as to
whether to make a recommendation to the Governor in Council rests solely with
the Citizenship Judge, I would urge that he or she consider the factors noted
above when considering whether to make a recommendation under subsection 5(4)
of the Act.
[12]
For
all of these reasons this appeal is allowed and the decision of Citizenship Simard
refusing to make a recommendation under subsection 5(4) of the Act is set aside
and will be remitted to another Citizenship Judge for a redetermination, and
Mr. Banman will be permitted to file additional material to support his claim
that such a recommendation is warranted in his circumstances.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the appeal is
allowed and the decision of Citizenship Simard refusing to make a
recommendation under subsection 5(4) of the Citizenship Act is set aside
and will be remitted to another Citizenship Judge for a redetermination, and
Mr. Banman will be permitted to file additional material to support his claim
that such a recommendation is warranted in his circumstances.
“Russel W. Zinn”
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