Marshall v. Canada (Minister of Citizenship and Immigration), 2004 FC 854

Date: 20040611

Docket: T-1816-02

Citation: 2004 FC 854

BETWEEN:

                                                  ANDREW MARK MARSHALL

                                                                                                                                              Applicant

                                                                           and

                              THE MINISTER OF CITIZENSHIP & IMMIGRATION

                                                                                                                                          Respondent

                                                        REASONS FOR ORDER

GIBSON J.

[1]                These reasons follow the hearing of a preliminary issue on an application for judicial review of a "decision" rejecting the Applicant's application for proof of Canadian citizenship. The "decision" under review is dated the 27^th of September, 2002.

[2]                The Applicant was born in Jamaica. He arrived in Canada at a young age in the company of his parents.

[3]                The Applicant's father was granted Canadian citizenship on the 14^th of September, 1976. His mother was granted Canadian citizenship on the 4^th of October, 1977. While the Applicant was identified on the applications for Canadian citizenship of both his father and his mother, the Respondent takes the position that no separate application for Canadian citizenship, as required, was made by either his father or mother on his behalf. Further, the Respondent takes the position that its records disclosed no application for Canadian citizenship filed by the Applicant himself, after he reached an age where he was entitled to make such an application.

[4]                In the result, in the "decision" sought to be reviewed the Respondent rejected the Applicant's application for proof of Canadian citizenship since the Respondent could not establish from its records that the Applicant had, or ever had, Canadian citizenship.

[5]                An earlier application for judicial review of a similar "decision" was rejected by this Court^[1]. In the Order dismissing the earlier application for judicial review, Prothonotary Hargrave wrote:

While one may sympathize with the Applicant, who was apparently informed on 16 May, 2000 by the manager of the Canada Immigration Centre in Calgary, that he was not a Canadian citizen, this Court has no jurisdiction to review this matter on the basis of advice given or information sent by an Access to Information and Privacy Co-ordinator (the "Co-ordinator").

I have reached this conclusion because I accept that the Co-ordinator is neither exercising any powers conferred by an act of Parliament or under a Crown prerogative and thus is not a federal board, commission or other tribunal, nor making any decision, but is merely passing along information from a file about the applicant. That information was held by Citizenship and Immigration Canada. The Co-ordinator confirmed, by letter of 29 November, 2000, that there was no record of Mr. Marshall having either applied for or been granted citizenship.

The concluding sentence in the Co-ordinator's letter of 29 November, 2000, "As we do not have a record showing that Mr. or Mrs. Marshall filed an application for Mark and we have no record that he applied on his own behalf as an adult, I regret to confirm that Andrew Mark Marshall is not a Canadian citizen.", is not a decision, but rather is a conclusion drawn from a lack of information in the Respondents files. Thus there is a lack of jurisdiction.

[6]                I am satisfied that precisely the same might be said on the facts of this matter and I adopt Prothonotary Hargrave's reasoning as my own. Further, in light of the earlier decision of this Court, I am satisfied that the matter now before the Court is res judicata.

[7]                Counsel for the Applicant urged that this second rejection of the Applicant's application for proof of Canadian citizenship is distinguishable from the first because, in counsel's letter seeking proof of Canadian citizenship on behalf of the Applicant, counsel wrote:

Please note that Mr. Marshall's application [for proof of his Canadian citizenship] is not as an adult but as a child in 1977 when he was eligible and had met all of the legislative requirements. You will note that his mother clearly indicated his name on her application and that he was in Canada and eligible for citizenship as a minor at the time of her application. You will also note, as is indicated on his father's application (which was completed by an officer in your office), that Andrew Mark Marshall was residing at Jamaica with your officer's notation (to apply at a later date) signed on the 30^th of June, 1976. This is clearly incorrect as Andrew Marshall was evidently in Canada with his parents and had been since February 14, 1972. This is precisely the reason why Mr. Lascelles Marshall [the Applicant's father] is still awaiting information from your office as that notation (to apply at a later date) was transcribed directly from his landed document and was not reflective of his position with respect to his son's citizenship.

It is clear from the documentary information that several errors were made in your office in 1976 and 1977 and we are asking that you kindly make the necessary corrections and forward Mr. Marshall's citizenship certificate.^[2]

                                                                                                                    (emphasis added)

It is to be noted that the Applicant's father signed his application for Canadian citizenship, whoever may have completed it, in a space following the statement: "The statements made in this application are true to the best of my knowledge."

[8]                In essence, in the guise of an application for proof of Canadian citizenship, counsel for the Applicant was asking the Respondent to "correct" records dating back almost three decades. That the Respondent implicitly refused to do so is not the matter now before the Court.

The only matter before the Court is the Respondent's rejection of the Applicant's application for proof of Canadian citizenship. That, in the letter of "decision" under review, the Respondent used the words "...we must rule..." and "our decision..." is, I am satisfied, a matter of form only. That terminology, while perhaps unfortunate, does not affect my earlier conclusions reflected in these reasons.

[9]                In the result, this application for judicial review will be dismissed.

                                                                          "Frederick E. Gibson"

                                                                                                 J. F. C.

Calgary, Alberta

June 11, 2004

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  T-1816-02

STYLE OF CAUSE: Andrew Mark Marshall v. The Minister of

Citizenship & Immigration

PLACE OF HEARING:                                 Calgary, Alberta

DATE OF HEARING:                                   June 9, 2004

REASONS FOR ORDER :                          GIBSON, J.

DATED:                     June 11, 2004

APPEARANCES:

Ms. Roxanne Haniff-Darwent                                        FOR APPLICANT

Mr. Rick Garvin                                                FOR RESPONDENT

SOLICITORS OF RECORD:

Darwent Law Office

Calgary, Alberta                                                FOR APPLICANT

Morris A. Rosenberg

Deputy Attorney General of Canada                  FOR RESPONDENT