Date: 19980326
Docket: T-1291-97
| 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 |
BOGOLJUB KARIC,
Appellant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR JUDGMENT
MCGILLIS, J.
FACTS
[1] The appellant has appealed from a decision of Citizenship Judge W.A. Borosa, dated April 29, 1997, that dismissed his application for citizenship under paragraph 5(1)(e) of the Citizenship Act, R.S.C. 1985, c. C-29, as amended ("Act"). In his decision, Citizenship Judge Borosa concluded that the appellant and his wife failed to meet the residency requirements in the Act.
[2] During the course of the appeal by way of trial de novo, the appellant and his wife testified concerning the hearing held before the Citizenship Judge on March 12, 1997. The lawyer who represented them at that hearing, Stephen Green, also testified before me.
[3] The facts which are relevant for the purposes of the appeal are as follows.
[4] During the hearing on March 12, 1997, the Citizenship Judge asked the appellant and his wife questions in order to determine whether they met the statutory requirements for citizenship prescribed in the Act. At the conclusion of the hearing, the Citizenship Judge stated that the appellant and his wife met the requirements in the Act. He further stated that their applications for citizenship were approved, and that the appellant and his wife would be sworn in as Canadian citizens in the near future. Prior to the conclusion of the hearing, the Citizenship Judge spoke with the appellant and his wife in the Serbo-Croatian language about their family and other general matters. He congratulated them on having met the requirements for Canadian citizenship, and shook their hands.
[5] At some point in time after the hearing, the former manager of the Citizenship Court office gave the Citizenship Judge a copy of an article dated March 10, 1997 from Maclean's magazine, entitled "The Fight for Bel Pagette". The article made several references to the appellant.
[6] Approximately one week later, Mr. Green "bumped into" the Citizenship Judge who showed him the article. At the time, Mr. Green "... did not think anything of it."
[7] By letter dated April 29, 1997, the Citizenship Judge rejected the applications for citizenship made by the appellant and his wife.
[8] At the hearing of the appeal, a memorandum dated July 2, 1997, prepared by the Citizenship Judge, was tendered in evidence. In that memorandum, he stated as follows:
| Statement No. 3 "I appeal on the following grounds" is incorrect. |
| At the termination of my hearings on residency cases I state: |
| "(In accordance with Section 14 of the Citizenship Act) I shall carefully review your application, residence questionnaire and supporting documents within three to six weeks, and you will be notified by letter of my decision." |
[9] Although the Citizenship Judge outlined in the memorandum his general practice at a hearing, he did not indicate that he followed that pratice at the conclusion of the hearing in question.
[10] Given the unequivocal and inherently consistent evidence from Mr. Green, the appellant and his wife concerning what transpired at the conclusion of the citizenship hearing, and the fact that the Citizenship Judge's memorandum makes no specific reference to that occasion, I have determined that the evidence in the memorandum dated July 2, 1997 should be accorded no weight in the present proceedings.
ISSUE
[11] The principal issue to be determined is whether the Citizenship Judge breached subsection 14(2) of the Act by failing to approve the application for citizenship in accordance with the determination which he made at the conclusion of the hearing.
ANALYSIS
[12] Section 14 of the Act governs, among other things, the procedure to be followed by a citizenship judge in making a decision to grant citizenship under subsection 5(1) of the Act. Subsection 14(1) of the Act provides that an application shall be considered by a citizenship judge "...who shall, within sixty days...determine whether or not the person who made the application meets the requirements..." of the Act and the Regulations. Subsection 14(2) of the Act imposes the following duty on a citizenship judge:
| 14(2) Forthwith after making a determination under subsection (1) in respect of an application referred to therein but subject to section 15, the citizenship judge shall approve or not approve the application in accordance with his determination, notify the Minister accordingly and provide the Minister with the reasons therefor. [Emphasis added] |
[13] The facts of the present case reveal unequivocally that the Citizenship Judge made a determination, at the conclusion of the hearing, that the appellant and his wife satisfied the requirements prescribed in the Act for Canadian citizenship. Having made that determination, he was required by subsection 14(2) of the Act to approve their applications for citizenship. His failure to approve their applications in accordance with his determination made at the hearing constitutes a breach of his mandatory duty under subsection 14(2) of the Act. In the circumstances, the letter in which the Citizenship Judge purported to reject the citizenship applications of the appellant and his wife is a nullity.1
[14] In addition to breaching his express statutory duty, the Citizenship Judge also committed a flagrant breach of the rules of natural justice by reconsidering his determination on the basis of information contained in a magazine article provided to him after the hearing, without providing the parties with an opportunity to adduce evidence or to make submissions on the contents of that article.
[15] The appeal is allowed. The decision of Citizenship Judge Borosa dated April 29, 1997, in which he refused the citizenship applications of the appellant and his wife, is quashed.
[16] In order to provide the Minister of Citizenship and Immigration with a right of appeal, the Minister shall be deemed to be notified, as of to-day's date, that Citizenship Judge Borosa approved the citizenship applications of the appellant and his wife.
| OTTAWA ________________________ |
| March 26, 1998 Judge |
1 See also Wong (Re) , [1997] F.C.J. No. 1578, Court File No. T-2003-96 and Lo (Re), [1997] F.C.J. No. 1576, Court File No. T-1331-96, in which appeals were allowed from decisions of Citizenship Judge Borosa in circumstances where he had not approved applications for citizenship in accordance with the determinations made at the hearing.