Date: 19990810
Docket: IMM-4310-98
Between:
MAN YING HENRY CHENG
Applicant
And:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM, J:
[1] This is an application, pursuant to subsection 82.1(1) of the Immigration Act (Act), R.S.C. 1985, c. I-2 for judicial review of a decision of a Tribunal Member of the Immigration Appeal Division (I.A.D.) dated August 7, 1998. In that decision the Board ordered that the applicant be removed from Canada by way of an Exclusion Order, pursuant to section 32(5)(b) of the Act. This order overturned the decision rendered on February 28, 1996 by Paul Kyba, Adjudicator which held that the applicant was, prima facie, a Canadian citizen.
[2] The applicant seeks an order quashing the decision of August 7, 1998 and an order directing the respondent to restore the decision made on February 28, 1998 by Paul Kyba.
FACTS
[3] The applicant, a national of Hong Kong, landed in Canada in 1986. On August 18, 1989, the applicant filed an application for Canadian citizenship. He swore a declaration as to the truth of his application before Jocelyn Saulnier, a Citizenship Officer in the Citizenship Office at St. John"s, Newfoundland. In February 1990, the applicant took the oath of citizenship before Citizenship Judge Eric Noseworthy following which he was issued a Miniature and a Commemorative Citizen Certificate number 4475929. Several months later the applicant received by mail a certificate of Canadian citizenship, a Canadian passport, and a congratulatory letter from the Minister of State for Multiculturalism and Citizenship.
[4] In a letter dated November 9, 1992 the applicant was informed that he was not entitled to his Canadian citizenship certificate for the reason that he was never actually granted citizenship prior to taking the oath of citizenship. Applicant"s counsel replied to this letter on December 10, 1992 inquiring as to how the applicant"s citizenship could be revoked in a manner contrary to sections 10 and 18 of the Citizenship Act, R.S.C. 1985, c. 29.
[5] In an effort to enter Canada as a visitor on January 29, 1996, the applicant was examined by a Senior Immigration Officer and a report was issued pursuant to section 20(1)(a) of the Immigration Act. The report concluded that the applicant had ceased to be a permanent resident of Canada and that he could not be admitted in the absence of a valid visa. Following this, the matter was referred to an adjudicator for inquiry which took place on February 28, 1996.
[6] The Adjudicator, Paul Kyba, found that the applicant was a Canadian citizen on the basis that possession of a Citizenship Certificate is prima facie proof of citizenship unless there exists a revocation order by the Governor-in-Council. There was no such evidence in this case.
[7] This decision was appealed by the respondent on March 6, 1996 pursuant to section 71 of the Immigration Act which allows the Minister to appeal a decision by an adjudicator. After hearing the appeal on May 6, May 7, and June 17, 1998, the decision was rendered on August 7, 1998 allowing the appeal. The I.A.D. held that the Adjudicator had erred in his conclusion that the applicant was a Canadian citizen and failed to give appropriate weight to the letter dated November 9, 1992 advising the applicant that his citizenship documents were invalid. An Exclusion Order was made against the applicant.
DECISION OF THE BOARD
[8] The Board, in its reasons for decision, dated August 7, 1998 states:
| On the totality of this evidence, I find that the respondent was not a Canadian citizen at the time he appeared at the port of entry in Vancouver. At the time he came into the port of entry on January 29, 1996, he did not have a visitor"s or any other visa as is evident from the fact that he was found to be a person described in subsection 9(1) of the Act . He had two passports in his possession, one from the U.K., Hong Kong, and one from Macao as is clear from the documents found in Exhibit A-6. |
| I find that the adjudicator erred in failing to find that the letter he had from Mr. Nolan indicating that the respondent had never been granted Canadian citizenship and that the certificates of citizenship had been cancelled was determinative of the issue of whether or not the respondent is or was a Canadian citizen. I do not think he was mistaken in taking the view that the citizenship certificate was prima facie evidence of citizenship, but he was mistaken in not taking the Registrar"s letter as evidence rebutting the presumption created by the certificate. He does not appear to have considered that revocation hearings are only appropriate in cases in which there was an original grant of citizenship. He may well have taken a different view if he had heard the evidence of Mr. Sabourin. But his failure to give this evidence the weight it deserved led him to draw the erroneous conclusion that the respondent was a citizen of Canada. Reaching the conclusion he did, he did not have to decide whether the respondent was a permanent resident of Canada. |
ISSUES
[9] Having read the Board"s decision and listened to the submissions of the parties, I believe the issues to be determined are as follows:
| (1) whether the I.A.D. had jurisdiction to consider the question of citizenship and make an Exclusion Order against the applicant; |
| (2) whether the I.A.D. erred in qualifying the evidence of Mr. Norman Sabourin, Registrar of Canadian Citizenship, as expert evidence and allowing him to testify on the ultimate issue; and |
| (3) whether the I.A.D. breached the principles of natural justice. |
DISCUSSION
[10] First, dealing with the issue of jurisdiction. Relying on paragraph 73(2)(a) of the Immigration Act, the applicant submits that the I.A.D. erred in finding that it had jurisdiction to make an Exclusion Order against the applicant. Paragraph 73(2)(a) states:
73(2) The Appeal Division may dispose of an appeal made pursuant to section 71
(a) by allowing it and making the removal order or conditional removal order that the adjudicator who was presiding at the inquiry should have made.
73(2) Ayant à statuer sur un appel interjeté dans le cadre de l"article 71, la section d"appel peut:
(a) soit y faire droit en prenant la mesure de renvoi ou de renvoi conditionnel que l"arbitre chargé de l"enquête aurait dû prendre;
[11] The applicant claims that the I.A.D. has jurisdiction to hear questions relating to exclusion orders but that it cannot make such an order for a Canadian citizen. It is not disputed that at the time the order was made, the applicant was in possession of a Canadian Citizenship Certificate and a passport, and had sworn the oath of citizenship.
[12] I am in full agreement that this constitutes prima facie proof of Canadian citizenship and that revocation of citizenship requires an order of the Governor-in-Council, as set out in sections 10 and 18 of the Citizenship Act. However, this appeal turns on the question of whether citizenship had in fact been granted as no revocation proceedings would be necessary otherwise.
[13] The respondent submits that no grant of citizenship to the applicant had occurred and that the process by which the applicant obtained his Certificate of citizenship was so fundamentally flawed that the citizenship documents were therefore invalid.
[14] Specifically, the respondent states that the appropriate box on the application form had not been marked by the Citizenship Officer, the form had not been signed and dated, and the oath was administered extraterritorially and without jurisdiction.
[15] Further, the respondent submits that these documents, the certificates, etc., were issued earlier in the process of obtaining citizenship as is the usual procedure, and that the remaining components necessary for a grant of citizenship were never completed. The remaining components were the review of the file by a delegate of the Minister to consider the approval of the Citizenship Judge and to make a determination as to whether or not to grant citizenship. The box to the left of the photograph on the application form must then be ticked. These final steps of the process were never completed.
[16] The respondent agrees that the I.A.D. does not have jurisdiction to make any determination on citizenship in isolation. It is charged with making a finding on admissibility into Canada and has jurisdiction on all related questions of fact. The jurisdiction of the I.A.D. to consider whether the applicant was a Canadian citizen is derived solely from the inquiry into admissibility in Canada, either as a citizen or a permanent resident.
[17] I am satisfied that, on the facts of this case, it was necessary for the I.A.D. to determine whether citizenship was granted in order to make a finding on admissibility.
[18] The applicant produced several Canadian citizenship documents which appeared to be legitimate. On appeal is the issue of whether the I.A.D. had the jurisdiction to hear and consider the evidence questioning this legitimacy.
[19] The respondent submits that upon producing documents of identity which appear to be legitimate, there is a presumption in favour of the applicant - the presumption of regularity of the acts of public officers. I am satisfied it is a presumption which may be rebutted and as such, the burden shifts to the respondent to show that the documents are invalid.
[20] While agreeing that the presumption of regularity may be rebutted, the applicant submits that the I.A.D. erred in failing to uphold it in this case by not finding that the applicant"s possession of citizenship documents was determinative of citizenship given that there was no revocation order of the Governor-in-Council.
[21] Clearly, the I.A.D. did not disregard the presumption of regularity as it found that the applicant"s documents were prima facie evidence of citizenship. However, the Board rightly considered the evidence presented to rebut this presumption which suggested that the applicant was issued a certificate of citizenship although a grant of citizenship had not occurred.
[22] I am of the view that the I.A.D. has the jurisdiction to consider this evidence, determine whether it rebuts the presumption of regularity, and make an Exclusion Order if necessary. That is their function.
[23] The second issue in this appeal surrounds the rules of evidence applicable to the board. Subsection 69.4(3)(c) of the Immigration Act defines the parameters of the hearing of evidence by the I.A.D.:
| 69.4(3) The Appeal Division has, as regards the attendance swearing and examination of witnesses, the production and inspection of documents, the enforcement of its orders and other matters necessary or proper for the due exercise of its jurisdiction, all such powers, rights and privileges as are vested in a superior court of record and, without limiting the generality of the foregoing, may (c) during a hearing, receive such additional evidence as it may consider credible or trustworthy and necessary for dealing with the subject matter before it. |
69.4(3) La section d"appel a, pour la comparution, la prestation de serment et l"interrogatoire des témoins, ainsi que pour la production et examination des pièces, l"exécution de ses ordonnances et toute autre question relevant de sa compétence, les attributions d"une cour supérieure d"archives. Elle peut notamment:
(c) recevoir, en cours d"audition, les éléments de preuve supplémentaires qu"elle estime utiles, crédibles et dignes de foi. |
[24] I am in full agreement with the comments of Mr. Justice Hugessen in Canada (Minister of Employment and Immigration) v. Taysir Dan-Ash (1988), 5 Imm. L.R. (2d) 78 (F.C.A.) at p. 80 in speaking of the purpose and effect of this provision (formerly paragraph 65(2)(c)):
| Paragraph 65(2)(c) has all the purpose and effect of freeing |
the board"s hearings from all technical rules of evidence
and particularly the "best evidence" and "hearsay" rules.
[25] The applicant submits that the Board erred in admitting the hearsay evidence of Corporal Shaw of the R.C.M.P., who had been in charge of the investigation into fraud at the St. John"s Newfoundland Citizenship Office, relating to the actions of the Citizenship Officer, Jocelyne Saulnier. Alternatively, the applicant submits that if the evidence was properly admitted, little weight should have been placed on it given its prejudicial nature.
[26] It is clear from the decision in Hoang v. Canada (Minister of Employment & Immigration) (1990), 13 Imm. L.R. (2d) 35 (F.C.A.) at p. 38 that this is a matter for the Board:
| The assessment of the weight of evidence is a proper matter for decision by the Board and is not subject to review by this court. |
[27] I am satisfied that the Board did not err in admitting the hearsay evidence presented through Corporal Shaw. The Board considered the evidence of Corporal Shaw to be credible and trustworthy and assessed its weight accordingly.
[28] On the issue of expert testimony, the parties agree that Norman Sabourin, the Registrar of Citizenship, is an expert in the process which is followed to obtain citizenship. It is also agreed by the parties that Mr. Sabourin is not in a position to make a determination on who is or is not a citizen. That is the function of the Board.
[29] The applicant submits that the I.A.D. erred in accepting the evidence of Norman Sabourin as expert evidence on the ultimate issue before the trial and erred in qualifying Mr. Sabourin as an expert on the issue of Canadian immigration law.
[30] In reply, the respondent submits that the technical Rules of Evidence with respect to expert testimony on the ultimate issue do not apply to the Board and that they are free to hear all necessary evidence providing there is no breach of natural justice.
[31] I do not see an error in the Board"s decision to qualify Mr. Sabourin as an expert witness and to hear his testimony on the issue of how citizenship is granted. His function was to give his opinion on the matter in order to assist the Board in arriving at a final determination on citizenship as it relates to admissibility into Canada.
[32] I am satisfied that the functions of the Board were not usurped by Mr. Sabourin. He gave his opinion on the citizenship status of the applicant and on the process itself. Ultimately, the questions of citizenship and admissibility rested with the board.
[33] The third issue on appeal is whether the principles of natural justice were breached. The applicant claims that the I.A.D. erred by disregarding the principles of natural justice and procedural fairness.
[34] Specifically, the applicant submits that the respondent failed to advise him that there was to be a change in his citizenship status, acted unilaterally without giving him an opportunity to be heard before the November 1992 letter was issued, and failed to disclose the allegation of fraudulent conduct.
[35] The applicant also submits that the conduct of the respondent constituted a breach in the applicant"s section 7 Charter, Canadian Charter of Rights and Freedoms , Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982, (U.K.), 1982, c. 11 rights as it amounts to an infringement of a liberty interest.
[36] It is the respondent"s submission that these points relate to the decision of the Minister and are not the subject of challenge in this appeal.
[37] The applicant"s arguments with respect to the failure to advise of the change in status and the denial of an opportunity to be heard relate to the initial decision of the respondent which was articulated in the letter of November 9, 1992. These issues, as well as the applicant"s section 7 Charter rights, were not within the jurisdiction of the I.A.D.
[38] On the issue of the applicant"s section 7 Charter rights, the facts of the case at bar do not affect the liberty or security interests of the applicant pursuant to s. 7 of the Charter.
[39] In the case at bar, the challenge concerns the decision of the I.A.D. to make an Exclusion Order against the applicant. The only question before the board was whether the applicant was admissible into Canada either as a citizen or permanent resident. It was therefore not within the Board"s mandate to determine the correctness of the circumstances leading up to the letter of November 9, 1992 informing the applicant that his citizenship documents were invalid.
[40] The applicant states that the allegation of fraud made by the respondent was admitted as evidence before the Board without notice and through hearsay testimony.
[41] It is clear that the evidence of "Operation Breakout" was made to the I.A.D. by Corporal Shaw through hearsay evidence of Jocelyne Saulnier. However, at no time does the respondent submit that there was wrongdoing on the part of the applicant himself. The evidence of what was going on in the Newfoundland Citizenship Office is used only as background information to illustrate why the applicant"s file initially came to be reviewed by the respondent and why a grant of citizenship had never been issued.
[42] I am unable to see how the I.A.D. disregarded the principles of natural justice by allowing the testimony on the fraudulent conduct of the Citizenship Officer and Citizenship Judge. The evidence heard by the Board was well within the limits defined by section 69.4(3) of the Act, as cited earlier.
[43] In my opinion, there is no error in how the Board considered the evidence presented to them and weighed it accordingly. Therefore, I find that the Board had jurisdiction to conclude that no grant of citizenship had occurred and to make an Exclusion Order.
[44] The application for judicial review is denied.
| "Max M. Teitelbaum" |
J.F.C.C.
Ottawa, Ontario
August 10, 1999