Date: 20000228
Docket: T-1338-99
BETWEEN:
OI HUNG VERA HUI,
Appellant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER AND ORDER
MR JOHN A. HARGRAVE,
PROTHONOTARY
[1] At issue in this citizenship appeal is the intention of the Appellant to reside in Canada. The Minister of Citizenship and Immigration has a 1991 immigration application made on behalf of the Appellant, who was then a minor: I also refer to this document as the "Immigration Application". On the present motion, the Appellant requests that the Respondent be required to produce to the Appellant a certified copy of the Immigration Application, being the Application for Permanent Residence in Canada submitted by Yin Fong Hui, the Appellant"s late father, on February 22, 1991. The Appellant goes on to request that she be permitted to file a supplementary record containing a copy of the letter of Yee & Associates, her father"s immigration consultants, dated February 22, 1991, addressed to Immigration Section, Commissioner for Canada, Hong Kong, and either a certified copy of her father"s Immigration Application or, in the event that the Respondent need not produce that document, an incomplete copy of her father"s Application obtained from her father"s immigration consultants.
[2] The Immigration Application, an application for permanent residence in Canada, made by the Appellant"s father, to bring the whole family, including the Appellant, to Canada in 1991 is certainly relevant. It could provide relevant evidence on a point which both sides have put in contention, that of whether the Appellant ever had an intention to reside in Canada. Yet the document was not before the Citizenship Judge who denied Ms. Hui citizenship. Indeed, the Appellant does not have a copy of the Application as filed.
[3] The Appellant looks to Rule 317 in order to force the Respondent, who apparently has the only original of the document, to produce it.
[4] Rule 317 permits the request of a document from a tribunal, but not from a respondent. Here I would refer to the concept that there is a distinction between a respondent in an application for judicial review and a tribunal whose decision is being questioned. This was a distinction touched upon by Prothonotary Morneau in Desrochers v. Attorney General of Canada, an unreported 13 November 1998 decision in action T-1567-98. Mr. Morneau went on to point out that Rule 317 provides access to documents which a plaintiff may not have and which are in the possession of the tribunal and not documents which are held by, in that case, the Attorney General of Canada.
[5] Further, Rule 317 is not intended to permit a party to repair a failure to present all relevant evidence that might have been or should have been produced to the tribunal: see for example Canada Post v. PSAC (1999), 164 F.T.R. 288, a brief decision in which Mr. Justice Gibson refers to an earlier unreported decision of Mr. Justice Denault in Northwest Territories v. Public Services Alliance of Canada, an unreported decision in action T-2411-98.
[6] While it may be relevant, the Immigration Application cannot be brought in through the application of Rule 317.
[7] As an alternative, the Appellant wishes leave under Rule 312(c) to file a supplementary record containing an incomplete copy of the Immigration Application which the Ontario Immigration consultants, used by Ms. Hui"s father, managed to locate.
[8] It is tempting to allow in a supplemental affidavit, containing a copy of the Immigration Application, on the basis that it would be in the interests of justice, that it would assist the Court and would not prejudice the other side. However, one must remember that this type of application, a citizenship appeal, is not a trial de novo as was once the case, but rather is an appeal by way of an application purely on the record which was before the Citizenship Judge: see for example Canada v. Hung (1999), 47 Imm. L.R.(2d) 182 at 184 (F.C.T.D.) and Minister of Citizenship and Immigration v. Lin-Hsieh, an unreported 27 May 1999 decision of Associate Chief Justice Richard, as he then was, in action T-1140-98, at paragraph 12. It is improper to allow in as evidence, on an appeal such as this, material which was not before the tribunal.
[9] Counsel for the Appellant submits that the relevant substance of the Immigration Application, an earlier intent on the part of the Appellant to immigrate to Canada, was in fact before the Citizenship Judge. I am not convinced, on the present evidence, that the Appellant"s intent, as specifically reflected in the Immigration Application, was before the Citizenship Judge and thus do not have to decide this aspect.
[10] The Respondent suggests that if the Appellant has further evidence, relevant to her application for citizenship, she ought to reapply to the office of the Citizenship Judge presenting the new material. This may well be correct, but in any event the Immigration Application cannot be imported, by way of new evidence, into this proceeding when it was not before the Citizenship Judge. I come to this conclusion despite sympathy for the Appellant.
ORDER:
| The motion is denied. No costs are awarded. |
(Sgd.) "John A. Hargrave"
Prothonotary
February 28, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-1338-99
STYLE OF CAUSE: OI HUNG VERA HUI
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: VANCOUVER, BC
DATE OF HEARING: February 28, 2000
REASONS FOR ORDER AND ORDER OF MR. JOHN A. HARGRAVE, PROTHONOTARY
DATED: February 28, 2000
APPEARANCES:
| Mr. T. Wing Wai for the Appellant |
| Ms. Helen Park for the Respondent |
SOLICITORS OF RECORD:
T. Wing Wai
Barrister & Solicitor
| Vancouver, BC for the Appellant |
Morris Rosenberg
Deputy Attorney General
| of Canada for the Respondent |