Date: 19981110
Docket: T-2539-97
BETWEEN:
HOI NIN DAVID LAM
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application seeking an order in the nature of mandamus requiring the respondent Minister to provide the applicant with a notification to attend taking the oath of citizenship ceremony as a result of the decision of the Citizenship Judge approving the application for Canadian citizenship dated May 25, 1995; and, following the taking of the oath, that a certificate of citizenship pursuant to subsection 12(2) of the Citizenship Act be issued.
[2] When this matter came on for hearing at Vancouver on the 22nd day of October, 1998, counsel for the respondent confirmed with the Court that a notification to attend a swearing-in ceremony had been forwarded to the applicant and he was to attend on the 28th day of October, 1998, following which a certificate of citizenship would issue and that therefore the matter was now moot.
[3] Counsel for the applicant was adamant that I should deal with the issue of costs. This was vigorously opposed by counsel for the respondent.
[4] This applicant came to Canada from Hong Kong and, after fulfilling the requirements, applied for Canadian citizenship in January, 1994. He attended a hearing before the Citizenship Judge on May 24, 1995; the application was approved the following day. He was informed by the Citizenship Judge that he would receive a notification to attend a citizenship swearing-in ceremony at which time he would take the oath and that this notice would be forthcoming within the next two to three weeks.
[5] This notice to attend to take the oath of citizenship is crucial in the procedure since subsection 12(3) of the Act provides that a certificate of citizenship cannot issue until an applicant has complied with the requirements respecting the oath.
[6] The applicant was scheduled to appear at a citizenship swearing-in ceremony before a Citizenship Judge on June 19, 1995. He did not appear on that date. The affidavit evidence before me suggests that he did not receive the notice but nevertheless it is admitted that during this time he was away from his residence on many occasions since he had accepted employment in Alberta.
[7] Not having received the notice to attend, he initiated inquiries and attended personally at the Vancouver Citizenship office in the months of June, July and August of 1995. He was advised by a clerk that a notice had been sent to him in June and, after further discussion, he was referred to an officer of the Department named "Maggie" who advised him that another notice to attend would be forwarded to him shortly.
[8] Still having received no communication, he forwarded three written inquiries dated October 11, 1995, November 29, 1995 and February 12, 1996, all addressed to the Vancouver office.
[9] Having received no answer, he initially retained counsel by the name of Lawrence Ho to look into his citizenship status. On May 6, 1996, Mr. Ho made inquiries with the Department in Ottawa and was advised that a case officer, one Linus Chiasson, had been assigned his client's file.
[10] Mr. Ho then enquired directly of the officer on May 31, June 25, and July 10, 1996. He did not even receive the courtesy of a reply.
[11] The evidence reveals that a telex message was then forwarded to Mr. Chiasson from the Vancouver Regional Headquarters in September, 1996 in which it was indicated "applicant desperately seeking information as to his citizenship status". Mr. Chiasson responded that the applicant should be advised that his case was still under review and that he would be contacted shortly to finalize the processing of his application.
[12] Having received no further advice, the applicant then retained another counsel, one Lawrence Wong, in May of 1997 who was informed on June 2 that the applicant was under investigation by the RCMP. This was the first time that the applicant was made aware of the enquiry.
[13] Mr. Wong contacted the RCMP and arranged a meeting with one Constable Pirritano on June 26, 1997. During the course of the meeting, the applicant was informed that the Department had received an anonymous letter on June 16, 1995 which had indicated to the authorities that this applicant had not resided in Canada for the requisite three years and that he had used various Hong Kong passports to conceal his absences from Canada. The anonymous letter further alleged that the applicant was a member of the Big Circle gang as well as other Vietnamese gangs.
[14] All allegations contained in the anonymous letter were denied and the investigating officer advised both the applicant and Mr. Wong that no adverse information had been uncovered during the course of the investigation and that he would notify the Department accordingly.
[15] In mid-September of 1997, Mr. Wong was informed by an immigration officer that they had not yet received the RCMP's report.
[16] Constable Pirritano faxed a further report to the Department and the immigration authorities confirmed that the report disclosed no adverse information. Nevertheless, the Department was not totally satisfied and directed the investigation officer to obtain further information with respect to the applicant's residence. As a result of this inquiry, Constable Pirritano telephoned the official in Ottawa on September 22, 1997 and advised that the question of residence had been looked into during the July interview.
[17] As a result of being further dissuaded, counsel contacted Mr. Chiasson's supervisor who requested one week to review the applicant's file indicating that she would then be in touch with him.
[18] The supervisor, Miss Rose Redden, did not return Mr. Wong's call but referred the applicant's case to the Organized Crime Division of the Department.
[19] According to the affidavits filed in this proceeding, the investigation of the Organized Crime Division was still ongoing as at December, 1997, at the time this application was instituted.
[20] I was advised during the course of this hearing that a negative finding by immigration officials in Hong Kong was confirmed with the Department in Ottawa some time during the early part of 1998.
[21] There is no doubt that when an applicant fails to attend a swearing-in ceremony following notification, he must, within the next 60 days, satisfy a Citizenship Judge of his reasons for failing to attend nevertheless I am satisfied that the sustained efforts of the applicant since June of 1995 were totally ignored or simply not addressed by the Department officials and no opportunity was provided the applicant to explain his absence in June of 1995.
[22] It should be noted that the Citizenship Judge did approve this application; no Minister's Permit was issued that would justify delaying this applicant's right to citizenship.
[23] Pursuant to section 17 of the Regulation, should the Minister wish to suspend the processing of an application, he may do so provided it does not exceed six months immediately following the day on which the processing has been suspended and the applicant so advised.
[24] I am satisfied that there was absolutely no evidence before the Court to justify the delays. It is evident that there is absolutely nothing suspicious concerning this applicant's activities; this is obviously confirmed by the fact that he has now been invited to attend a new ceremony during which he will be given an opportunity to take the oath of citizenship.
[25] During the course of some three years this individual had to retain counsel on two occasions, was cleared following an investigation by the RCMP; during the entire process he was totally ignored and in many instances not even extended the courtesy of a reply, nor was he ever informed of the anonymous letter which the Department allegedly received in June of 1995 and which was noticeably omitted from the evidence filed in support of the respondent's position.
[26] I am prepared to favourably exercise my discretion and award costs to the applicant which I fix at $1,500 inclusive of disbursements and which shall be paid forthwith.
_________________________________
JUDGE
OTTAWA, Ontario
November 10 1998
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