Date: 19971118
Docket: T-2003-96
BETWEEN:
IN THE MATTER OF the Citizenship Act,
R.S.C., 1985, c. C-29
AND IN THE MATTER OF an appeal from the
decision of a Citizenship Judge
AND IN THE MATTER OF
ERNEST KA HO WONG,
Appellant.
REASONS FOR JUDGMENT
WETSTON, J.:
[1] Mr. Wong's application for citizenship was not approved because he did not meet the residency requirements in section 5(1)(c) of the Citizenship Act, R.S.C. 1985, c. C-29. However, this case is not straight forward. An internal memorandum (dated September 17, 1997) from the Manager of the Citizenship Registration Centre to the Manager of Case Management in Ottawa, Ontario with respect to this matter notes the following sequence of events:
| - June 12, 1996 - clients appears for hearing with Judge and sees officer to verify documents and see returning resident permit |
| - Somewhere in between June 12 and July 5 Judge approves application. |
| - July 5 - Officer/Manager does not agree with Judges decision and prepares internal memo to Registrar |
| - July 8 - Manager informs Judge of referral to Ottawa and Judge requests to see the file again. |
| - Sometime between July 8 and July 12 - Judge non-approves application. |
...
| - I have since informed Judge ... that any questionable files will be referred directly to the Minister without any "second looks" by him. |
[2] Indeed, by letter dated July 16, 1996, Mr. Wong received notice of the Citizenship Judge's decision wherein he was denied citizenship based upon a failure to meet the residency requirements.
[3] The internal memorandum deals with the question of residence and deals specifically with the fact that the Manager disagreed with the Judge's decision in this matter, and also, discussed some of the principles of law from authorities of this Court in dealing with the question of residence. Indeed, the Manager of the Citizenship Registration Centre was concerned that, the first time that Mr. Wong centralized his mode of living in Canada would be July 26, 1994 making his application premature by approximately 20 months. It seems that the normal practice is that when a file is to be sent to Ottawa for an appeal of the Judge's decision, the Judge is informed of that fact. What appears to have incurred in this case, is the internal memorandum was placed on the file and when the Judge requested the file, he obviously changed his mind. I say this because the internal memorandum notes that somewhere in between June 12th and July 5th the Judge approved the application.
It is unclear what led the Judge to change his mind, but what is clear is that he appeared to have made a decision and the change in decision was as a result of a review of the file prior to the July 16th, 1996 refusal letter. The Manager of the Citizenship Registration Centre also noted, that in future questionable files will be referred directly to the Minister without "second looks" by the Judge. Applicant's counsel, in this appeal, characterized the error as an unlawful interference with the independence of a Citizenship Judge and that the Judge after making his initial determination was functus officio once that decision was made
[4] I have reviewed the Citizenship Act and the Citizenship Regulations as amended, to determine the powers and duties of a Citizenship Judge. Section 14(2) of the Citizenship Act is as follows:
(2) ...
| the citizenship judge shall approve or not approve the application in accordance with his determination, ... (own emphasis) |
[5] An application for a grant of citizenship under section 5(1), shall be considered by the Citizenship Judge (section 14(1)(a)) who must determine if the person meets the requirements of the Act and the Regulations. In essence the duties of a Citizenship Judge are set out in the Legislation and Regulations and those duties are primarily judicial, that is the decisions are made according to the law. A Citizenship Judge must approve or not approve an application in accordance with certain legal rules and principles. Whether or not a Citizenship Judge can also take into account administrative policy, in the sense of broader questions of the public interest with respect to citizenship, there is a little doubt that the approval or disapproval must be only in accordance with "his or her determination".
[6] As indicated previously, it is contended that after the positive determination was made the Judge was functus officio. It is my view that after this determination was made, the Citizenship Judge was functus officio. The appropriate course of action would have been to proceed by way of a ministerial appeal. Whether or not he was functus or whether there was an inappropriate reconsideration of the decision, the Citizenship Judge committed an error of law. The Manager of the Citizenship Registration Centre was quite correct when as noted in the memorandum, questionable files will be referred direct to the Minister without any "second looks" by the Judge. I agree. In other words, if the Minister disagrees with a Citizenship Judge's decision his only option is to appeal that decision.
[7] I realize this appeal is by way of Trial de novo but since the Citizenship Judge was functus, the appeal should have been brought by the Minister and not the applicant.
[8] Accordingly, the wrong decision has been appealed. The appeal is allowed.
"H. Wetston"
Judge
TORONTO, ONTARIO
NOVEMBER 18, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: T-2003-96
| STYLE OF CAUSE: IN THE MATTER OF the Citizenship Act, |
| R.S.C., 1985, c. C-29 |
| AND IN THE MATTER OF an appeal from the decision of a Citizenship Judge |
| AND IN THE MATTER OF |
| ERNEST KA HO WONG |
DATE OF HEARING: OCTOBER 7, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: WETSTON, J.
DATED: NOVEMBER 18, 1997
APPEARANCES: Mr. Stephen W. Green
For the Appellant
Mr. Peter K. Large
Amicus Curiae
SOLICITORS OF RECORD: Green and Spiegel
2200-121 King Street West
Toronto, Ontario
M5H 3T9
For the Appellant
Peter K. Large
Barrister and Solicitor
610-372 Bay Street
Toronto, Ontario
M5H 2W9
Amicus Curiae
FEDERAL COURT OF CANADA
Date: 19971118
Docket: T-2003-96
BETWEEN:
IN THE MATTER OF the Citizenship Act,
| R.S.C., 1985, c. C-29 |
| AND IN THE MATTER OF an appeal from the decision of a Citizenship Judge |
| AND IN THE MATTER OF |
| ERNEST KA HO WONG, |
Appellant
REASONS FOR JUDGMENT