Date: 20070920
Docket: T-1243-07
Citation: 2007 FC 925
BETWEEN:
YU
YUAN LIANG
Applicant
and
THE MINISTER OF CITIZENSHIP
&
IMMIGRATION
Respondent
REASONS FOR ORDER
Pinard
J.
[1]
This
is a motion on behalf of the respondent for an Order setting aside the July 27,
2007 Order of Prothonotary Aalto and for an Order quashing the Notice of Application
for a review of the decision to refuse the applicant’s Canadian citizenship
application.
[2]
As
the question raised herein is vital to the “final issue” in the case, I must
conduct a de novo review of the merits of the impugned decision and
exercise my own discretion.
[3]
The
letter notifying the applicant of the refusal of her application for Canadian
citizenship was mailed on March 16, 2007. The letter was accepted at the post
office for delivery to the applicant that same day.
[4]
The
package containing the refusal letter was delivered to the applicant’s address
on March 20, 2007, at 5:11 p.m., when an acknowledgement of receipt of the
package was electronically signed. The Notice of Application for a review of
the decision to refuse the applicant’s citizenship application was served on
the Minister and filed with the Federal Court on July 6, 2007.
[5]
Pursuant
to subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29, and to
the Federal Court of Appeal’s decision in Liu v. Minister of Citizenship and
Immigration, 2007 FCA 94, the Minister moved before Prothonotary Aalto for
an Order dismissing the latter application on the ground that it was filed
outside of the 60-day limit provided for by subsection 14(5) of the Citizenship
Act. The Minister argued that the time for appealing the decision not to
grant the applicant Canadian citizenship had expired, and that in view of the
Court of Appeal’s decision in Liu, supra, the Court lacked the
jurisdiction to extend the time.
[6]
In
an Order dated July 27, 2007, Prothonotary Aalto dismissed the Minister’s
motion. The Prothonotary held that the sample signature supplied by the
applicant differs from the electronic signature provided by the respondent to
demonstrate receipt of the letter on March 20, 2007.
[7]
The
applicant is challenging the decision to refuse her application for Canadian
citizenship. Under subsection 14(5) of the Citizenship Act, the
applicant had 60 days from the date the letter informing her of the refusal was
mailed. In Liu, supra, the Federal Court of Appeal held that this
limitation period is mandatory and that the Federal Court does not have the
jurisdiction to extend the time for appealing a citizenship decision.
[8]
The
evidence before the Prothonotary demonstrates that the letter notifying the
applicant of the refusal of her application is dated March 16, 2007. Exhibit
“A” (appended to the affidavit of Geeta Ragoonath) shows that the letter was
accepted at the post office for delivery to the applicant that same day.
Exhibit “A” further shows that the refusal letter was “successfully delivered
to the receiver” on March 20, 2007, at 5:11 p.m. Exhibit “B” (appended to the same
affidavit) is a copy of the electronic acknowledging receipt of the package.
[9]
The
applicant’s Notice of Application for a review of the refusal was served on the
respondent on July 6, 2007.
[10]
Subsection
14(5) of the Citizenship Act reads as follows:
|
(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
(a)
the citizenship
judge approved the application under subsection (2); or:
(b)
notice was
mailed or otherwise given under subsection (3) with respect to the
application.
|
(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 :
a)
de l’approbation de la demande;
b)
de la communication, par courrier ou
tout
autre moyen, de la décision de rejet.
|
[11]
Here,
I must determine whether the applicant’s appeal was filed within the 60-day
period from the date the refusal letter was mailed. As already pointed out,
that letter was mailed on March 16, 2007. Thus, the applicant had
until May 15, 2007 to file her appeal. As the Notice of Application containing
this appeal was filed on July 6, 2007, about ten weeks after the expiration of
the statutory deadline, I am of the view, in light of the Court of Appeal’s
decision in Liu, supra, that this Court does not have the
jurisdiction to hear the appeal.
[12]
Indeed, in Liu, supra, Décary J.A.
stated:
[4] The
case law is clear: Subsection 14(5) is mandatory and does not give the Federal
Court the jurisdiction to extend the 60-day limitation period. See Re Conroy
(1979), 99 D.L.R. (3d) 642 (F.C.T.D., Cattanach J., at 649); Re
Dunnet (1979), 102 D.L.R. (3d) 400 (F.C.T.D., Dubé J., at 402); Re Kelly
(1979), 96 D.L.R. (3d) 470 (F.C.T.D., Cattanach J., at 474); Re Araujo
(1993), 63 F.T.R. 159 (Joyal J. at 160); Ovenstone v. Canada (M.C.I.)
(2000), 188 F.T.R. 157 (McKeown J. at 158); Suzer v. Canada (M.C.I.),
[2002] F.C.J. No. 525, 2002 FCT 418 (Blanchard J. at paragraph 5).
[5] These
decisions are well-founded. The language of the time limitation is clear and
unambiguous (see, by analogy, Adam v. Canada (M.C.I.), [2001] 1 F.C. 375
(C.A.), at paragraph 19, and Wilbur-Ellis Co. of Canada v. Canada
(Deputy Minister of National Revenue, Customs and Excise – M.N.R.), [1995]
F.C.J. No. 1435, A-431-94). The Federal Court, to use the words of Blanchard J.
in Suzer, “cannot create any right or arrogate any jurisdiction it does
not properly have.”
[13]
Furthermore, I am of the view that the evidence
before the Prothonotary, Exhibits “A” and “B” appended to the affidavit of
Geeta Ragoonath, prima facie demonstrated that the refusal letter was
delivered to the applicant on March 20, 2007. The only evidence to the contrary
was simply that contained in the affidavit of Scott Dellaire who stated the
following:
1.
I am
assisting the applicant in the application numbered above. As such, I have
personal knowledge of the facts herein deposed.
2.
On July
19, 2007 I asked the applicant by fax to verify the signature of the applicant,
providing a copy of exhibit “B” of the affidavit of GEETA RAGOONATH.
3.
The
applicant responded on July 20, 2007 stating that it was not the applicant’s signature
and forwarded a copy of the signature for the above-name applicant. Attached as
Exhibit “A” to this my affidavit is the signature for Yu Yang Liang.
4.
I make
this affidavit for no improper purpose.
[14]
This evidence merely states that the electronic
signature acknowledging receipt of the package including the refusal letter was
not that of the applicant. This evidence is included in an affidavit made on
belief. This affidavit does not explain the failure of the applicant to provide
her own evidence as a person having personal knowledge. There is no further
admissible evidence stating or indicating that the applicant did not receive
the refusal letter on March 20, 2007. The applicant herself does not even deny
it.
[15]
I therefore, in accordance with Rule 81(2) of
the Federal Courts Rules, SOR/98-106, draw an adverse inference from the
failure of the applicant to provide evidence of the relevant material facts as
a person having personal knowledge of them. In that context, I conclude, in
light of Exhibits “A” and “B” appended to the affidavit of Geeta Ragoonath
filed before the Prothonotary, that the applicant received the refusal letter
on March 20, 2007.
[16]
Consequently, as the applicant’s Notice of
Application was filed on July 6, 2007, about ten weeks after the expiration of
the statutory deadline, this Court does not have jurisdiction to hear the
appeal contained therein, which is statute-barred.
[17]
For all the above reasons, the respondent’s
motion is granted, the Order of Prothonotary Aalto, dated July 27, 2007,
is set aside and the Notice of Application for a review of the decision to
refuse the applicant’s Canadian citizenship application is quashed.
“Yvon
Pinard”
Ottawa, Ontario
September
20, 2007
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