Date: 19980605
Docket: T-692-97
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
MAN YICK CHUNG
Appellant
ORDER AND REASONS THEREFOR
JOYAL, J.
[1] In this citizenship matter, a Judge of the Citizenship Court had ruled that the appellant did not meet the residency requirements pursuant to paragraph 5(1)(c) of the Citizenship Act and rejected his application for Canadian citizenship.
[2] On appeal before me, I was concerned by the appellant's lengthy absences from Canada and his extremely short periods of actual presence in Canada during the four years preceding his citizenship application. On the evidence before me, I dismissed the appeal in a Judgment dated December 15, 1997, with Reasons issued concurrently.
[3] The appellant now applies for reconsideration of that decision on the basis that it was not in accord with my Reasons given and that I overlooked a matter put before me during the hearing.
[4] The first ground submitted for reconsideration is in regards to my obiter which states:
This is not to suggest that [the appellant] is unsuitable for Canadian citizenship, or that Canadian citizenship now enjoyed by his spouse and children is not pretty much an open door for his own entry.
According to the applicant, such a pronouncement in the form of the dismissal of the within appeal is not in accord with the above-stated Reasons.
[5] In light of the decision as a whole, I should find counsel's interpretation unfounded. The fact that members of the appellant's family are already Canadian citizens will certainly allow him to spend more time in Canada and, in the long run, help him meet the statutory residency requirements. This conclusion is certainly within the scope of a decision I rendered in Hsu[1] and is consistent with other judgments of my colleagues in the Court[2].
[6] Compared to a single citizenship applicant, or to one whose family is not residing in Canada and does not have emotional ties within this country, the appellant does have a foot in the door, meaning that it would be expected that he would be motivated to spend more time with his family and make his integration into Canadian society more thorough, indices which, coupled with longer periods of residence in Canada, would present a more favourable picture.
[7] The second ground brought forward by counsel is that I overlooked, in my Reasons, the fact that the Citizenship Judge, in rendering his decision well after 60 days, he violated ss. 14(1) of the Citizenship Act which reads as follows:
14. (1) An application for
(a) a grant of citizenship under subsection 5(1),
[...] shall be considered by a citizenship judge who shall, within 60 days of the date the application was referred to the judge, determine whether or not the person who made the application meets the requirements of this Act and the regulations with respect to the application.
Moreover, ss. 14(3) provides that when an application for citizenship is not approved, the Citizenship Judge shall "forthwith" notify the applicant of the decision.
[8] Since no transcript of the hearing is available in the present case, and even if I do not find in my notes, any references to that particular issue, I will assume, in due fairness, that counsel for the appellant did bring the matter forward during his representations.
[9] In the present case, the Citizenship Judge clearly failed to comply with the Act. However, I think ss. 14(1) and 14(3) provide for a procedural right, not a substantive one, such as the right to Canadian citizenship[3]. Hypothetically, the appellant could have requested a new hearing before another Citizenship Judge, or he could have requested a determination of his application after the 60-day mandatory period had expired and before the Citizenship Court rendered its decision.
[10] Since under ss. 14(5) of the Act, an appeal to the Federal Court is a trial de novo, I am inclined to conclude that the appellant's rights were preserved and, even though he was not heard by a member of the Citizenship Court, the remedy by way of an appeal to this Court is of equal merit.
[11] Furthermore, any allegation that a tribunal has rendered an oral decision which is not in conformity with the dutifully signed one is of no consequence. The law is clear that the written one prevails.
ORDER
[12] With all due respect, I see nothing in the record or in the Reasons for my decision in this case which merit reconsideration. The application is therefore dismissed.
L-Marcel Joyal
JUDGE
O T T A W A, Ontario
June 5, 1998.
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THERECORD
COURT FILE NO.: T-692-97
STYLE OF CAUSE: Citizenship Act and Man Yick Chung
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
ORDER AND REASONS FOR ORDER BY: The Honourable Mr. Justice Joyal
DATED: June 5, 1998
WRITTEN SUBMISSIONS BY:
Mr. Sheldon M. Robins for the Appellant
Mr. Peter K. Large Amicus Curiae
SOLICITORS OF RECORD:
Mr. Sheldon M. Robins Barrister and Solicitor Toronto, Ontario for the Appellant
Mr. Peter K. Large Barrister and Solicitor Toronto, Ontario Amicus Curiae