Federal Court Decisions

     T-1930-95

     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

     M. H.

     Appellant

     AMENDED REASONS FOR JUDGMENT

McKEOWN J.

     These reasons apply also to Court File T-1929-95.

     The appellant was granted landed immigrant status in 1992. Approximately eight months after arriving in Canada, he filed his application for Canadian citizenship. The Citizenship Judge turned down his application for Canadian citizenship. He informed the appellant that:

... you met all of the requirements for citizenship set out in the Citizenship Act, except for the requirement of residence. Under paragraph 5(1)(c) of the Act, an applicant is required to have accumulated at least three years of residence in Canada within the four years immediately preceding his or her application.

     The Citizenship Judge also stated:

Pursuant to subsection 15(1) of the Citizenship Act, I have considered whether or not to make a recommendation for an exercise of discretion under subsection 5(4) of the Act. Subsection 5(4) of the Act empowers the Governor in Council to direct the Minister to grant citizenship to any person in cases of special and unusual hardship or to reward services of an exceptional value to Canada.

     Under paragraph 5(1)(c) of the Act, to be lawfully admitted to Canada for permanent residence a person must have, within the four years immediately preceding the date of application, accumulated at least three years of residence in Canada. This paragraph precludes an appellant from applying until he has been in Canada for at least three years. Since the appellant's application under paragraph 5(1)(c) was premature, it does not matter what happened in the interim with respect to residence. However, subsection 5(4) of the Act provides that:

In order to alleviate cases of special and unusual hardship or to reward services of an exceptional value to Canada, and notwithstanding any other provision of this Act, the Governor in Council may ... direct the Minister to grant citizenship to any person ...

     In this case, the Citizenship Judge declined to make a recommendation under subsection 5(4) stating:

I studied the documentation submitted by you with your application for citizenship. The evidence you brought to my attention does not, in my opinion, constitute grounds for making a recommendation under subsection 5(4).

     In my view, this is a very difficult case because nothing in the Act governs the effect of making an early application. However, in my view, the requirements of the Act mean that in only the most exceptional cases will a recommendation be made under subsection 5(4). I am aware of only one case where an application was made prematurely and this section was applied. Grant D.J. in Re Mady, October 19, 1978, (unreported), Court File T-2496-78 (F.C.T.D.) granted citizenship to an applicant who had only been a landed immigrant for two years. In that case, the Citizenship Judge was also unable to approve the application and decided against recommending an exercise of discretion by the Governor in Council pursuant to the provisions of subsection 5(4) of the Act. In that case, the appellant was a talented swimmer and was a potential Gold Medalist if he were permitted to swim on the Canadian team in the upcoming Olympics. Grant D.J. stated:

To have such a talented athlete on the Canadian team at the Olympics would be of exceptional value to Canada. To deny the appellant Canadian citizenship at this time would deprive him of the opportunity of taking part in the Olympic swimming contests. When he has trained so faithfully, both in Romania and Canada, to condition himself so that he can compete credibly in such contest on behalf of his adopted country, I feel it would amount to a special and unusual hardship to deprive him of that opportunity ...

     He then went on to recommend that the Governor in Council exercise his discretion under subsection 5(4) of the Act and allow the appeal.

     In my view, the circumstances of this case are much more compelling than those of the Mady case, since the appellant has made a significant and substantial contribution to Canada. The appellant worked for a Canadian embassy. During that time he commenced representation of Canadian business and political interests in his country of origin. However, it was following his service with the Canadian embassy that his contributions to Canada became more significant. There is no doubt that the appellant played a major role in identifying business opportunities in his country of origin and that he assisted Canadian business in obtaining many contracts in that country. He arranged to have his four children come to Canada to be educated; three of them are now Canadian citizens and the fourth is in the process of applying for Canadian citizenship. The appellant works for a Canadian company and still spends a considerable amount of time in his country of origin advancing the cause of Canadian business. There was evidence before me to show that without the assistance of the appellant, Canadian business and the Canadian government would have been unrepresented in that country. Furthermore, the appellant played a crucial role in the establishment of Canadian interests with the new political regime. The appellant's commitment to Canada has remained strong in spite of considerable hardship and the dangerous political environment during a period of intense nationalistic and religious fanaticism during which all Western influences and symbols were targets of attack. The appellant and his wife have maintained a strong commitment to Canada throughout this period, without consideration for their personal safety and security. It is his role as a political and business representative of Canadian interests during a highly volatile period of intergovernmental relations which has motivated many people to support his application for Canadian citizenship.

     As Thurlow A.C.J. stated in Re Salon (1978), 88 D.L.R. (3d) 238 (F.C.T.D.) at pp. 241-242:

Unlike most statutes which confer on parties a right of appeal to a Court, this Act contains no definition of the powers exercisable by the Court when an appeal is before it. All that is to be found as to the decision of the Court is in s-s. 13(6) which makes the decision of the Court final and not subject to any further appeal. As Parliament must have intended the appeal to be an effective means of obtaining relief, it is not to be inferred that the intention was that the Court should be powerless, and it appears to me that the inference to be drawn, having regard both to the absence of such a definition of powers as well as to the fact that the appeal is to a superior Court of record, is that the Court is vested with full power to do all that is right and just according to the law and for that purpose to do or to correct anything that the Judge from whose decision the appeal is taken was empowered or required to do in reaching his decision ... In my opinion, on an appeal from a decision refusing approval of an application after declining to make a recommendation, this Court has both the authority and the duty to consider and to correct, if necessary, both the decision of the Citizenship Judge on whether the statutory requirements have been met and the decision not to recommend the exercise of the powers of the Minister or the Governor in Council under s-ss. 5(3) and (4) respectively. In such a situation, the latter is as much a basis of his decision not to approve as is his decision with respect to the statutory qualifications. In reaching this conclusion, I am aware that in Re Akins, File T-4359-77 (1978), 87 D.L.R. (3d) 93, and in Re Peter Daniel Albers, File T-75-78 [unreported], my colleague Mr. Justice Addy took a different view of the power of the Court but the conclusion I have reached is in accord with several recent decisions of my colleagues, Mr. Justice Walsh and Mr. Justice Dubé, and in view of the conflict of opinion it is, I think, open to me to reach my own conclusion as to the interpretation to be given to the statute.

     In my view, I have the right to make a recommendation within the meaning of subsection 5(4) as was done by Thurlow A.C.J. and Grant D.J.

     The appellant has satisfied me that this is a case where he has performed services of an exceptional value to Canada within the meaning of subsection 5(4) as well as being a case of special and unusual hardship and I therefore recommend that the discretion of the Governor in Council under that subsection be exercised so as to direct the Minister to grant Canadian citizenship to the appellant.

                         ________________________________

                                 Judge

OTTAWA, ONTARIO

September 30, 1996