Date: 20040112
Docket: IMM-5241-02
Citation: 2004 FC 34
CALGARY, Alberta, Monday, the 12th day of January, 2004.
PRESENT: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
ANDREW MARK MARSHALL
Applicant
and
MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Delivered Orally from the Bench and Subsequently Written
and Edited for Precision and Clarification)
[1] This is an application for judicial review of the decision of Immigration Division of the Immigration and Refugee Board of Canada (Board) which held that the applicant was not a Canadian citizen.
[2] The applicant at the hearing raised the issue of reasonable apprehension of bias by the presiding member. However this issue was not raised in the applicant's original pleadings, but only in a further Memorandum of Argument on behalf of the Applicant filed subsequently to receiving the Minister's Memorandum of Argument. Given that Rule 301(e) requires a complete and concise statement of the grounds intended to be argued, I believe it is too late at this stage as it was not part of the original application. In any event if there was such an issue, it should have been raised by motion before the presiding member and not now on judicial review
[3] However the presiding member made the following statement on page 155 of the Tribunal's record:
The only thing I can look at is the conclusion, and it's Citizenship that must decide whether or not he is a Canadian citizen. You could bring me all the documents you want, it wouldn't convince me.
[4] This statement shows a fundamental misunderstanding of the member's role. He is to decide on the basis of evidence presented before him whether the applicant is a Canadian citizen or not.
[5] A letter from the Department of Citizenship and Immigration attesting to the fact that they have no evidence of citizenship ever being granted is strong presumptive proof, (see Cheng v. MCI [1998], I.A.D.D., No 1531) but it is not determinative.
[6] Under s. 162 (1) of the IRPA the Board has the "sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdictions".
[7] The member when conducting a hearing under s. 36(1)(a) of the IRPA has to make the determination as to whether the applicant is a Canadian citizen or not. It is his decision and not that of Citizenship and Immigration.
[8] In light of his failure to make the required decision and in effect delegating it to Citizenship and Immigration I am allowing this application.
ORDER
IT IS HEREBY ORDERED that:
The decision of the Board is set aside and the matter is being referred back to the Board for redetermination by another member.
"K. von Finckenstein"
J. F. C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5241-02
STYLE OF CAUSE: Andrew Mark Marshall v.
Minister of Citizenship & Immigration
PLACE OF HEARING: CALGARY, Albert
DATE OF HEARING: January 12, 2004
REASONS FOR ORDER AND ORDER : von FINCKENSTEIN, J.
DATED: January 12, 2004
APPEARANCES:
Ms. Roxanne Haniff-Darwent FOR APPLICANT
Mr. Rick Garvin FOR RESPONDENT
SOLICITORS OF RECORD:
Darwent Law Office
Calgary, Alberta FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT