T-825-80
In re the Citizenship Act and in re Akberali S.
Lakha (Appellant)
Trial Division, Cattanach J.—Vancouver, May 6
and 14, 1980.
Citizenship — Application for citizenship was refused —
Appeal from refusal is based on citizenship judge's failure to
complete portion of standard printed form dealing with his
recommendation to the Minister concerning the exercise of
executive discretion -- Subsection 14(1) of the Citizenship Act
requires citizenship judge to consider whether or not to recom
mend exercise of executive discretion before refusing applica
tion — Whether decision to refuse application is void —
Appeal dismissed — Citizenship Act, S.C. 1974-75-76, c. 108,
ss. 5(4), 13(2),(3), 14(1),(2)(a), 20(2) — Immigration Act, 1976,
S.C. 1976-77, c. 52, s. 27(1)(d).
Appeal from citizenship judge's refusal to approve appel
lant's application for citizenship. Subsection 14(1) of the Citi
zenship Act requires the citizenship judge to consider whether
or not to recommend the exercise of executive discretion before
refusing the application for citizenship. In completing a stand
ard printed form entitled "DECISION OF THE CITIZENSHIP
JUDGE", the citizenship judge ignored the section indicative of
whether or not the matter was referred to the Minister for the
exercise of executive discretion. The issue is whether the deci
sion not to approve the application is void because the citizen
ship judge failed to decide whether or not to recommend the
exercise of executive discretion, a decision which is a condition
precedent to the decision not to approve the application.
Held, the appeal is dismissed. What is contemplated by
subsection 14(1) is that a citizenship judge before reaching his
conclusion to approve or disapprove an application must have
directed his mind to making or not making a recommendation
to the Minister, and if he does not conclude to make that
recommendation, he is then at liberty to disapprove the applica
tion and proclaim his decision. Assuming that it is mandatory
that a rigid chronology is imposed by subsection 14(1), there is
a prima facie presumption that things have been done rightly.
That presumption has not been rebutted. The printed form is
clearly an intradepartmental memorandum and is incorrectly
designated as a "DECISION OF THE CITIZENSHIP JUDGE".
APPEAL.
COUNSEL:
A. Vander Linde for appellant.
A. D. P. MacAdams for amicus curiae.
SOLICITORS:
A. Vander Linde, Burnaby, for appellant.
A. D. P. MacAdams, Vancouver, for amicus
curiae.
The following are the reasons for judgment
rendered in English by
CATTANACH J.: The citizenship judge refused
to approve the appellant's application for citizen
ship because on August 15, 1979, the appellant
had been convicted of keeping a common bawdy-
house contrary to section 193 of the Criminal
Code, R.S.C. 1970, c. C-34, an indictable offence
with a maximum sentence of imprisonment for two
years. The appellant was not ordered to be deport
ed because under paragraph 27(1)(d) of the
Immigration Act, 1976, S.C. 1976-77, c. 52, he
was not sentenced to imprisonment for six months
but was merely fined $500 and the maximum
penalty provided for the offence is but two years
imprisonment, not five.
Subsection 20(2) of the Citizenship Act, S.C.
1974-75-76, c. 108, reads:
20....
(2) Notwithstanding anything in this Act, but subject to the
Criminal Records Act, a person shall not be granted citizenship
under section 5 or subsection 10(1) or administered the oath of
citizenship if
(a) during the three-year period immediately preceding the
date of his application, or
(b) during the period between the date of his application and
the date that he would otherwise be granted citizenship or
administered the oath of citizenship
he has been convicted of an offence under subsection 28(1) or
(2) or of an indictable offence under any Act of Parliament.
The appellant certainly has not invoked the
Criminal Records Act, R.S.C. 1970 (1st Supp.), c.
12, because he is precluded from doing so for a
period of two years following his conviction and
that period will not expire until August 15, 1981.
By virtue of subsection 20(2), the applicant
cannot possibly be granted citizenship under sec
tion 5 for three years from August 15, 1979, that
is until August 15, 1982. Even then I would enter
tain reservations if the appellant would be eligible
for citizenship because of a demonstrated lack of
an appreciation of the responsibilities of citizen
ship unless he shall have lived an exemplary life
from August 15, 1979 until August 15, 1982 and
can so establish.
There is no question whatsoever that the citizen
ship judge was absolutely right in refusing to
approve the appellant's application for citizenship.
To do otherwise would have been a direct violation
of the statute. The appellant's application for citi
zenship was ill conceived and should not have been
made.
The appellant's appeal was equally ill conceived.
The appellant utilized a printed form of notice
of appeal set out in the Appendix to the Rules. He
states his ground of appeal to be:
The Citizenship Judge should have considered unusual hard
ship. I therefore request consideration under Section 5(4) of the
Citizenship Act.
This is manifest nonsense because the citizen
ship judge by letter dated February 6, 1980,
addressed to the appellant and received by him,
stated:
I have considered and decided against recommending to the
Minister an exercise of discretion on compassionate grounds
under subsection 5(4) of the Act.
However, at the hearing of the appeal, the
appellant was represented by counsel, the only
sensible step the appellant appears to have taken in
this matter since September 6, 1979, the date of
his application for citizenship, a scant 22 days
after being convicted of an indictable offence.
The contention of counsel was purely technical,
predicated upon a glaring omission or oversight by
the citizenship judge.
By virtue of subsection 14(1) where a citizen
ship judge is unable to approve an application
under subsection 13(2) (that is where it has been
determined by the citizenship judge that an appli
cant does not meet the requirements of the Act) he
shall, before deciding not to approve the applica
tion, consider whether or not to recommend an
exercise of discretion under subsection 5(4).
The chronological order is:
(1) determine if the applicant meets the statu
tory requirements. If he does not,
(2) consider whether or not to recommend
executive discretion. If not, then,
(3) disapprove the application.
Counsel for the appellant then directed my
attention to a printed form included in the certi
fied copy of the material sent up to the Registry of
this Court in accordance with Rule 903 which
bears the legend "Secretary of State" and the title
"DECISION OF THE CITIZENSHIP JUDGE" "Section
5(1)."
There are a series of boxes under the heading
"THE APPLICANT" which are to be marked "yes"
or "no".
This is obviously to indicate whether the appel
lant satisfies the statutory requirements for eligi
bility for citizenship.
In the box of the question "The applicant is the
subject of a prohibition under Section 20", is a tick
to the effect that he is.
That is the first determination made by the
citizenship judge in the chronological order to
reach the ultimate decision as outlined in subsec
tion 14(1), and it was determined that he was not
eligible for citizenship.
Therefore, the chronology dictates that the citi
zenship judge should next consider whether or not
to recommend the exercise of discretion under
subsection 5(4).
The citizenship judge completely ignored the
section in the form indicative of whether or not the
application was referred to the Minister for this
purpose. It is blank.
With logic, counsel for the appellant contends
that the citizenship judge made no such determi
nation.
Having made no such determination as he was
obliged to do by virtue of subsection 14(1), he then
proceeded to the last decision and that was not to
approve the application and gave as the reason
that the appellant was convicted of an indictable
offence.
Reduced to its simplicity, the contention of the
counsel for the appellant is that the decision of the
citizenship judge is in breach of the statute in that
he failed to make a decision which is a condition
precedent as prescribed by the statute to the ulti
mate decision not to approve the application and
therefore the decision of the citizenship judge is
void or at least voidable.
The form indicates the "Date of decision" to be
February 4, 1980 and is signed by the citizenship
judge. Counsel for the appellant did not overlook
the letter dated February 6, 1980 from the citizen
ship judge to the appellant in which he notified the
appellant of his decision not to approve the
application, the reasons therefor and the right to
appeal as he is obliged to do by subsection 13(3) of
the Act.
In that letter the citizenship judge notified the
appellant that he had decided not to make the
recommendation. I am not aware of any provision
of the statute which obligates him to do so. Para
graph 14(2)(a) requires the citizenship judge to
notify the applicant when he makes the recommen
dation (not when he does not).
Conceivably the consideration of whether or not
to make the recommendations can be construed as
a "decision". Under subsection 13(3) the citizen
ship judge must notify the applicant of a decision
and the reasons therefor. It has become customary
to give to an applicant notification that no recom
mendation was made but usually without reasons.
If this document with all the tick marks inserted
by the citizenship judge is signed by him on a date
of decision and is entitled "DECISION OF THE
CITIZENSHIP JUDGE", then it would seem to follow
that this is the decision of the citizenship judge
and reasons therefor and as such should be made
available to the applicant. It is not. This material
constitutes part of the file of the citizenship judge.
When the decision of the citizenship judge is
appealed, that file is sent up to the Registry, to the
amicus curiae, and to the appellant. This is the
first time when this material is made available to
the appellant. The failure to do so is not consistent
with it being a "decision" regardless of the title it
bears.
In my view, this printed form was no doubt
designed by departmental officials as a convenient
manner by which the citizenship judge conveys to
the Minister his decision as he is required to do by
subsection 13(2).
That subsection reads:
13....
(2) Forthwith after making a determination under subsection
(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 marginal note reads "Advice to Minister".
Clearly this is an intra-departmental memoran
dum. It is incorrectly designated as a "DECISION
OF THE CITIZENSHIP JUDGE". It should be entitled
either the "Notification" or "Advice" to the Min
ister of the citizenship judge's approval or non-
approval of an application and the reasons
therefor.
The citizenship judge's statutory obligations to
the applicant respecting his decision are as
outlined in subsection 13(3), the marginal note to
which reads "Notice to applicant".
Under subsection 13(2), the citizenship judge is
to advise the Minister. He utilizes this carelessly
and inaccurately entitled intra-departmental form
to do so. He himself neglected to complete the
section respecting whether or not he was making a
recommendation under subsection 5(4). That is
between him and the Minister. It is the clear
inference from the form as a whole that he did not
recommend.
The letter dated February 6, 1980, two days
after the hearing, discharges the statutory obliga
tions of the citizenship judge to the applicant.
However, if the citizenship judge writes reasons
for his decisions, then the applicant is entitled to
be given those written reasons and inferentially
from the language of the subsection, the decisions
should be based on reasons. (The subsection does
not read "reasons if any"; it reads "reasons
therefor")
The old view that marginal notes can offer no
aid to the construction of a statute was predicated
upon the fact that the marginal notes were not
part of the statute as enacted by Parliament, but
were editorial notes added subsequently. That is no
longer so, marginal notes are part of the statute
enacted by Parliament and as such may be
referred to in considering the general sense in
which the words are used in a section or subsec
tion. In my view, the marginal notes "Advice to
Minister" and "Notice to applicant" to subsection
13(2) and 13(3) respectively, accurately reflect the
sense of the language of the subsections.
In my view, what is contemplated by subsection
14(1) is that a citizenship judge before reaching
his conclusion to approve or disapprove an applica
tion must have directed his mind to making or not
making a recommendation to the Minister, and if
he does not conclude to make that recommenda
tion, he is then at liberty to disapprove the applica
tion and proclaim his decision.
Assuming, for the purposes of the contention
advanced on behalf of the appellant, which I do
not necessarily accept, that it is mandatory that a
rigid chronology is imposed by subsection 14(1) on
a citizenship judge to be followed without the
slightest deviation, the well-known maxim "Omnia
praesumuntur rite esse acta" would apply. Freely
translated that means there is a prima facie pre
sumption that things have been done rightly.
This is but a presumption and, in my view, that
presumption has not been rebutted for the reasons
I have expressed.
It is for these reasons that I do not accept the
contention made by counsel for the appellant, but
that contention does point up a loose departmental
practice which should be corrected forthwith to
ensure what is not a "decision" under the statute is
properly referred to as a "Notification to the
Minister".
Counsel for the appellant had the eminent good
sense not to invite me to make a recommendation
which was not made by the citizenship judge. I
would not do so because I do not conceive it to be
my function to do so for reasons expressed by my
brother Addy and by myself on previous appeals.
In any event, I am wholly in agreement with the
wisdom of the citizenship judge in making no such
recommendation.
It is for the foregoing reasons that the appeal is
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.