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T-4359-77
In re Guy Douglas Anderson Akins and in re the Citizenship Act
Trial Division, Addy J.—Vancouver, March 2 and 10, 1978.
Jurisdiction — Citizenship — Appeal from Citizenship Judge's dismissal of application for citizenship — Federal Court Rule 9/2 — Appeal to be in form of new hearing Whether or not Federal Court Trial Division Judge can exer cise discretion given Citizenship Court Judge to make recom mendation for executive action — Citizenship Act, S.C. 1974- 75-76, c. /08, ss. 5(4), /3(2),(3), /4(1) — Federal Court Rule 9/2.
This is an appeal from a Citizenship Judge's dismissal of appellant's application for citizenship. It is argued that, since Rule 912 pertaining to citizenship appeals provides that they take the form of a new hearing, a Trial Division Judge has jurisdiction to exercise the powers of recommendation given a Citizenship Judge.
Held, the appeal is dismissed. The Court's jurisdiction is strictly limited to the power of examining on appeal and either affirming or reversing a Citizenship Judge's decision to "approve or not approve" a person's application for citizenship. No statutory authority gives any jurisdiction to the Trial Division to review any decision of a Citizenship Court to refrain from recommending the granting of citizenship. Federal Court Rule 912 is of no assistance to the appellant because jurisdic tion whether original or appellate cannot be granted by Rules of Court and there must be clear statutory author ity for any appellate jurisdiction. It can only mean that in so far as appellate jurisdiction exists, the appeal should take the form of a new hearing.
In re Kleifges and in re Citizenship Act [1978] I F.C. 734, distinguished.
APPEAL. COUNSEL:
G. D. Akins on his own behalf. S. D. Hanson, amicus curiae.
SOLICITORS:
G. D. Akins, Vancouver, on his own behalf. DeBou, Hanson & Co., Vancouver, amicus curiae.
The following are the reasons for judgment rendered in English by
ADDY J.: The appellant's application for citizen ship was refused by a Citizenship Court Judge on the ground that he had failed to satisfy the
requirements as to length of residence in Canada provided for in section 5(1)(b) of the Citizenship Act.'
At the hearing before me the appellant did not dispute the Citizenship Court Judge's finding that he had not resided in Canada for a sufficient length of time to comply with the Act. It follows that there are no legal grounds for reversing the decision of the Court below to the effect that the application for citizenship could not be approved.
The appellant however, complained that the Citizenship Court Judge, before dismissing his application, erroneously exercised the powers of recommendation granted to him by section 14(1) of the Act in failing to recommend that pursuant to section 5(4) of the Act, he be granted citizen ship by executive action. Section 14(1) reads as follows:
14. (1) Where a citizenship judge is unable to approve an application under subsection 13(2), he shall, before deciding not to approve it, consider whether or not to recommend an exercise of discretion under subsection 5(3) or (4) or subsection 8(2) as the circumstances may require.
Section 5(4) reads:
5....
(4) In order to alleviate cases of special and unusual hard ship or to reward services of an exceptional value to Canada, and notwithstanding any other provision of this Act, the Gover nor in Council may, in his discretion, direct the Minister to grant citizenship to any person, and, where such a direction is made, the Minister shall forthwith grant citizenship to the person named in the direction.
The amicus curiae, in furtherance of the appel lant's position, pointed out that Federal Court Rule 912 pertaining to citizenship appeals provides that any such appeals shall take the form of a new hearing. He also argued that as a result, I was to consider myself as being in the same position as the Citizenship Judge and would therefore have the jurisdiction and indeed the duty to make any recommendation for executive action provided for in the section as might be warranted by the facts presented to me.
I reserved on the question of jurisdiction and allowed the appellant to make all statements of fact and representations pertaining to the issues which he wished to raise, namely the issues of
'S.C. 1974-75-76, c. 108.
whether his case was one where denial of citizen ship would carry "special and unusual hardship" and, alternatively, whether his services were "ser- vices of an exceptional value to Canada" which should be rewarded by a grant of citizenship.
As to the question of jurisdiction it is obvious that the right to appeal any decision of a Citizen ship Judge made pursuant to section 13 flows from section 13(5) which reads in part as follows:
13....
(5) The Minister or the applicant may appeal to the Court from the decision of the citizenship judge under subsection (2)
Subsection (2) referred to in section 13(5) above reads as follows:
13....
(2) Forthwith after making a determination under subsec tion (1) in respect of an application referred to therein but subject to section 14, the citizenship judge shall approve or not approve the application in accordance with his determination, notify the Minister accordingly and provide him with the reasons therefor. [The underlining is mine.]
It therefore seems clear that, by the above sec tions, this Court's jurisdiction is strictly limited to the power of examining on appeal and either affirming or reversing a Citizenship Court Judge's decision to "approve or not approve" a person's application for citizenship. At no place in the Citizenship Act or in the Federal Court Act, or in any other Act for that matter, is any jurisdiction given to the Trial Division of the Federal Court to review any decision of a Citizenship Court to refrain from recommending to the Governor in Council or to the Minister that citizenship be granted by executive action to an applicant on special grounds. The provisions of Rule 912 to the effect that this present appeal is to take the form of a new hearing are of no assistance to the appellant because jurisdiction whether original or appellate cannot be granted by Rules of Court and there must be clear statutory authority for any appellate jurisdiction. The Rule can only mean that in so far as appellate jurisdiction may exist, the appeal shall take the form of a new hearing.
The amicus curiae on this point drew to my attention the recent decision of my brother Walsh J. in In re Kleifges and in re Citizenship Act [1978] 1 F.C. 734. The reasons for judgment and the judgment are dated the 31st day of January, 1978. In the final paragraph of his reasons the learned Judge indicates that he would have appar ently exercised such jurisdiction when he states [at page 742]:
I am of the view that for an applicant who would very obviously make an excellent citizen the provisions of the Act should be given a liberal interpretation so as to make the granting of citizenship to him possible, rather than a narrow and restricted interpretation, and that therefore, in the present case, even if I had not found that the appeal should be allowed and citizenship granted to appellant, I would in any event have recommended the exercise of discretion under section 5(4) of the Act.
It is obvious that this statement was obiter dictum as the appeal was in fact allowed and the application for citizenship was granted. There would therefore be no reason whatsoever to make a recommendation which could be made only in the event of the application for citizenship being denied.
Indeed, previous to stating any view on the question of whether a recommendation could have been made, the learned Judge stated [at page 741]:
In view of this conclusion it is unnecessary to go into the second question namely whether a recommendation should have been made by the Citizenship Judge to the Minister to apply section 5(4) of the Act, but as a similar question might well come up in other cases I consider it desirable to comment on it.
Furthermore, in reading the decision of the Kleifges case it appears that the subject of juris diction in this area was neither raised nor con sidered at any time.
For the reasons previously stated I find that I have no jurisdiction to make any recommendation that executive action be taken pursuant to section 5(4). I come to this decision somewhat reluctantly for, after hearing the eloquent representations made by the appellant personally, the latter having acted on his own behalf, and having regard to his statements as to the nature and the alleged results of his work in the Sharel region of West Africa, in connection with a CIDA-approved project, it is conceivable that I might have considered the advisability of making a recommendation on the
basis of services rendered which were of exception al value to Canada. I must point out however, that the appellant stated to me that he had never presented these facts to the Citizenship Court Judge at the time of the original hearing.
The appeal is therefore dismissed.
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