Judgments

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Decision Content

T-3318-78
In re Citizenship Act and in re John Adrian Claude Fortesque (Appellant)
Trial Division, Mahoney J.—Toronto, January 19; Ottawa, January 24, 1979.
Citizenship — Appeal from dismissal of application for citizenship — Notices of time and date for hearing before Citizenship Judge not received by appellant until after date passed because of situation where Court's standard procedure not apt — Citizenship Judge making favourable findings in appellant's absence but unable to make finding as to appel lant's knowledge of an official language and of the respon sibilities and privileges of citizenship — Appeal considered to be new hearing — Appeal allowed — Citizenship Act, S.C. 1974-75-76, c. 108, ss. 5(1)(c), (d), 13(5) — Citizenship Regu lations, SOR/77-127, ss. 3(8), 13(1),(2),(3) — Federal Court Rule 912.
APPEAL. COUNSEL:
M. Lubek for appellant.
Frederick W. Chenoweth as amicus curiae.
SOLICITORS:
Wilfrid S. L. Young, Vancouver, for appel lant.
Frederick W. Chenoweth, Toronto, as amicus curiae.
The following are the reasons for judgment rendered in English by
MAHONEY J.: The appellant is a British subject, born in England. He is a geophysicist with a doctorate and is ordinarily employed as a universi ty professor. He was landed as an immigrant in Canada October 24, 1962, and has been perma nently resident in Canada since.
He applied for Canadian citizenship at Hamil- ton, Ontario, on June 22, 1977. At the time he was engaged in carrying out a contract for the govern ment of Canada that had him moving about the country living in a trailer. He gave the address of a friend in Oakville, Ontario, as his address in the application. At the end of the year, he accepted a contract with the University of Missouri that had him based at Columbia, Missouri, and travelling extensively in Canada and the United States
throughout 1978. He did not change the address he had given in his application. He kept periodic telephone contact with the friend.
In the scheme of the Citizenship Regulations,' once an application is filed, a copy is sent to the Registrar of Citizenship in Ottawa who undertakes the inquiries necessary to determine that the appli cant meets the legal requirements in respect of the application. These inquiries disclose, for example, whether the applicant is lawfully in Canada as alleged in the application and any criminal record or lack thereof. When the Registrar's inquiries are done, their result is sent to an officer of the Citizenship Court with the notification that the application may be referred to a Citizenship Judge. Thereupon, the officer is required by sub section 3(8) of the Regulations to
3. (8) ... (b)...
(i) fix a date and time when and a place where the application shall be referred to a citizenship judge for consideration, and
(ii) give to the applicant at least seven days notice in writing thereof and advise him that he is required to appear before a citizenship judge on the date and at the time and place specified to be examined with respect to his qualifications for citizenship.
Subsections 13(1) and (2) provide:
13. (1) Subject to subsections (2) and (3), where an appli cant fails to appear before a citizenship judge or a foreign service officer at the date, time and place fixed under subsec tion 3(8) or 11(4), the citizenship judge or a foreign service officer may, in his discretion, endeavour to communicate with the applicant and fix a new date, time and place acceptable to the citizenship judge or the foreign service officer, for the appearance of the applicant.
(2) Subject to subsection (3), where
(a) a citizenship judge or foreign service officer does not endeavour to or is unable to communicate with an applicant and fix a new time, date and place, or
(b) an applicant fails to appear at a new time, date and place that has been fixed,
the application shall be considered by the citizenship judge on the basis of the information available.
The practice of the Citizenship Court appears to be to notify the applicant of date, time and place of hearing by letter mailed, by ordinary post, 14 days in advance. If the applicant does not appear,
' SOR/77-127.
the hearing is rescheduled and, again, 14 days notice by ordinary post is given. If the applicant does not then appear, the hearing is again rescheduled and 14 days notice is given by regis tered post. If the applicant fails to appear at the third scheduled hearing, the application is referred to the Citizenship Judge to be considered "on the basis of the information available" as required by subsection 13(2) of the Regulations. That standard practice exceeds the minimum requirements of the Regulations in that behalf. It was followed in the appellant's case. Subsection 13(3) provides:
13....
(3) No application for a grant of citizenship under subsec tion 5(1) of the Act shall be approved without the evidence in person of the applicant, and where the applicant fails to appear before a citizenship judge at a date, time and place fixed under subsection 3(8) or 13(1) of these Regulations, the citizenship judge shall not approve the application.
The appellant was based in Columbia, Missouri, when notice of the first scheduled hearing was received. It indicated that if he did not appear, another date would be fixed. He did not receive notice of the second scheduled hearing until after its date had passed. He contacted the Citizenship Court and requested that a date be set well ahead so he could arrange to be there. The officer of the Citizenship Court declined to deviate from stand ard practice. The registered notice of the third scheduled hearing also reached the appellant after its date had passed.
The Citizenship Judge was able on the record to make the necessary findings, all favourable to the appellant, except those required under paragraphs 5(1)(c) and (d) as to the adequacy of his knowl edge of one of the official languages and of Canada and the responsibilities and privileges of citizenship. He demonstrated to me that he met those requirements.
The Citizenship Judge had no choice, under subsection 13(3) of the Regulations, but to disap prove the application. That is a decision subject to appeal to this Court under subsection 13(5) of the Act.
Ordinarily, the standard practice of the Citizen ship Court gives an applicant a fair opportunity to
be present at the hearing of his or her application. There are, however, bound to be situations in which the standard practice is not apt. This was such a case. It is to be hoped that in most such instances, the Citizenship Court will be able to be flexible and accommodate applicants with particu lar problems. Unnecessary appeals are costly to everyone.
This is not the sort of appeal that should often arise or, if it does, succeed. While the hearing of an appeal from the decision of a Citizenship Judge is, by Rule 912 of the Federal Court Rules, a new hearing, the fact remains that the Citizenship Court has and regularly employs an inquisitorial function that is quite foreign to the ordinary prac tice of a court of law. If this Court has any doubt that the application has been fully dealt with in the absence of the applicant's personal attendance before a Citizenship Judge it ought, in my view, to dismiss the appeal regardless of the plausibility of the applicant's reasons for not appearing. Under the present law, an applicant is free to make a new application immediately; there is no mandatory waiting period following disapproval of an earlier application as there was under the previous Act.
Happily, in this instance, the Citizenship Judge was able to, and did, make all necessary findings except those for which the appellant's personal presence was absolutely necessary. I have no doubt that, with his appearance before me, the applica tion has been dealt with as fully as it would have been had the appellant appeared before the Citi zenship Judge.
JUDGMENT
The appeal is allowed.
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