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.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.