Date: 19971118
Docket: T-1331-96
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
TAK SHING ANDREW LO,
Appellant.
REASONS FOR JUDGMENT
WETSTON, J.:
[1] The applicant, at the end of his hearing, was given the impression that his application for citizenship was approved. In evidence before me, he indicated that the Citizenship Judge told him that the application for citizenship was approved. Later in his testimony, he indicated that he was congratulated by the Judge and told that he passed. However, on April 23, 1996, he received a letter wherein the Citizenship Judge denied his application based on a failure to meet the residency requirements of Section 5 of the Citizenship Act. There was nothing before me contradicting the applicant's evidence.
[2] I have reviewed the Citizenship Act and Citizenship Regulations, as amended, to determine the powers and duties of a Citizenship Judge. Section 14(2) of the Act is as follows:
| The Citizenship Judge shall approve or not approve the application in accordance with his determination. (own emphasis) |
[3] An application for a grant of citizenship under section 5(1) shall be considered by the Citizenship Judge 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 public interest with respect to citizenship, there is little doubt that the approval or disapproval must be only in accordance with "his or her determination".
[4] It is submitted by counsel that the Judge was functus officio after he had indicated to the applicant that his application was approved or that he had passed. I agree with this contention. Obviously, the Citizenship Judge reconsidered his decision and while there is no indication in this record as to why this had occurred, other than a letter from counsel, there is no basis in the legislation or regulations for such a reconsideration in this case. As such an error of law was committed. If the Minister disagrees with the Citizenship Judge's decision
regarding residency or any other factor, then the appropriate course of action is by way of an appeal.
[5] 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. Accordingly, the wrong decision has been appealed.
[6] Accordingly, the appeal is allowed.
"H. Wetston"
Judge
Toronto, Ontario
November 18, 1997
FEDERAL COURT OF CANADA
Date: 19971118
Docket: T-1331-96
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
TAK SHING ANDREW LO,
Appellant.
REASONS FOR JUDGMENT
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: T-1331-96
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
TAK SHING ANDREW LO,
DATE OF HEARING: OCTOBER 7, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: WETSTON, J.
DATED: NOVEMBER 18, 1997
APPEARANCES: Ms. Mary Lam
For the Appellant
Mr. Peter K. Large
Amicus Curiae
SOLICITORS OF RECORD:
Cecil Rotenberg, Q.C.
255 Duncan Mill Road
Suite 808
Don Mills, Ontario
M3B 3H9
For the Applicant
Peter K. Large
Barrister and Solicitor
610-372 Bay Street
Toronto, Ontario
M5H 2W9
Amicus Curiae
FEDERAL COURT OF CANADA
Court No.:
Between:
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER