Date: 20130822
Docket: A-235-13
Citation: 2013 FCA 194
Present:
NOËL
J.A.
MAINVILLE
J.A.
NEAR
J.A.
BETWEEN:
WEI ZHOU
Appellant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
MAINVILLE J.A.
[1]
The
respondent has submitted a motion to this Court in writing under Rule 369 of
the Federal Courts Rules, SOR/98-106 for an order striking the
appellant’s Notice of Appeal.
[2]
This
Court may grant such a motion in cases where it has no jurisdiction over the
appeal, where the appeal manifestly lacks substance as to bring it within the
character of a vexatious proceeding, where the appeal serves no practical
purpose, or where it is “plain and obvious” that the appeal has no chance of
success: Sellathurai v. Canada (Minister of Public Security), at paras.
7-8; Arif v. Canada (Citizenship and Immigration), 2010 FCA 157, 321
D.L.R. (4th) 760 at para. 9.
[3]
The
appellant in this case is seeking to appeal to this Court an order of Strickland
J. of the Federal Court dated June 19, 2013 (cited as 2013 FC 654) dismissing
the appellant’s motion to reconsider the judgment dated March 27, 2013 (cited
as 2013 FC 313) by which Strickland J. dismissed the appellant’s appeal from a
decision of a citizenship judge brought pursuant to subsection 14(5) of the Citizenship
Act, R.S.C. 1985, c. C-29.
[4]
In
her Notice of Appeal, the appellant is seeking four types of relief: (1) that
the order dated June 19, 2013 be struck; (2) that the motion for
reconsideration which she filed on April 5, 2013 with the Federal Court be re-determined
in person within 30 days; (3) that this Court “declare that absent an affidavit
from the citizenship judge that Minister v. Chou (A-288-00) is
applicable with respect to the reliance of the Federal Court on the decision
and certified record as evidence of what occurred at the citizenship
interview”; (4) that costs be awarded to her.
[5]
The
principal grounds of appeal raised in the Notice of Appeal are the following:
4. The Appellant relies on paragraph 31 of the Minister
of Citizenship and Immigration v Sharareh Saji (A-311-09) namely that the
preclusion of an appeal by subsection 14(6) of the Citizenship Act
applies only to a procedurally fair determination by the Federal Court of
whether the citizenship judge erred in deciding the citizenship application.
5. The Appellant submits that the learned Federal
Court judge was procedurally unfair in dealing with the motion dated April 5,
2103 [sic] as she refused to hear the motion in person which was filed
pursuant to subsection 359 of the Federal Court [sic] Rules
and secondly she did not acknowledge or make a proper determination on the
legal question as to why the Federal Court of Appeal case of the Minister v
Chou (A-311-09) did not apply or was somehow distinguished in her reliance
on the certified tribunal record as evidence of what occurred at the interview
absent an affidavit.
[6]
There
is no substance whatsoever to the ground of appeal based on procedural
unfairness resulting from the absence of a hearing on the motion in the Federal
Court. In the appellant’s reply submissions with respect to her motion for
reconsideration before the Federal Court, counsel for the appellant clearly
noted that the “[t]he Applicant [here the appellant] defers to this Court to
determine whether this motion can be dealt with in writing or in person”:
Applicant’s Reply Submissions in Federal Court file T-1238-12 dated April 15,
2013, at para. 6, reproduced in the Respondent’s Motion Record at p. 100.
[7]
Since
the appellant deferred to the Federal Court judge on the matter of whether the
motion for reconsideration should be dealt with in writing or in person, she
can not now raise as a ground of appeal what she herself agreed to. This ground
of appeal manifestly lacks substance as to bring it within the character of a
vexatious proceeding.
[8]
As
for the ground of appeal based on the submission that Strickland J. did not
make a proper determination of the applicable legal principles in her reasons
dismissing the motion for reconsideration before her, this has nothing to do
with procedural fairness. Rather, that ground of appeal simply raises a
question of law unrelated to the procedural fairness of the reconsideration
proceedings.
[9]
Moreover,
the legal issue raised by that ground of appeal is directly related to the
issue of whether Strickland J. erred when she dismissed the appellant’s appeal from
the decision of the citizenship judge.
[10]
Subsection
14(6) of the Citizenship Act provides that a decision of the Federal
Court on an appeal from a decision of a citizenship judge brought pursuant to
subsection 14(5) of that Act is final, and no appeal lies to this Court from
such a decision. In Canada (Citizenship and Immigration) v. Saji,
2010 FCA 100, [2011] 3 F.C.R. 293 at para. 29, Evans J.A. relied on Canada
(Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391
to establish the following test as to whether a matter falls under the ambit of
that subsection 14(6): “an appeal from the Federal Court to this Court is only
precluded by subsection [14](6) as a decision made ‘pursuant to an appeal under
subsection (5)’ if the decision in question relates to the ultimate question,
namely, whether the citizenship judge erred in approving or not approving a
citizenship application, or in determining a question related to it.”
[11]
In
this case, determining whether Justice Strickland erred in accepting certain
evidence within the framework of her judgment dismissing the appellant’s appeal
under subsection 14(5) of the Citizenship Act, and consequently erred in
not correcting that alleged mistake in her order dismissing the appellant’s
motion for reconsideration, is a question closely related to determining the
ultimate question of whether or not the citizenship judge erred in not
approving the appellant’s citizenship application. As a result, this ground of
appeal is precluded by the effect of subsection 14(6) of the Citizenship Act.
[12]
I
would consequently order that the appellant’s Notice of Appeal be struck. The
respondent shall be entitled to costs on the motion.
"Robert M. Mainville"
“I agree.
Marc Noël J.A.”
“I
agree.
D.G. Near J.A.”
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