Federal Court Decisions

Date: 20050414

Docket: T-1478-03

Citation: 2005 FC 508

BETWEEN:

ALON VINOGRADOV

Applicant

and

MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

SIMPSON J.

[1]                This motion is for a reconsideration of my order dated February 18, 2005 which allowed the Applicant's appeal from a negative decision of a Citizenship Judge dated June 30, 2003 (the "Decision").

[2]                In her Decision, the Citizenship Judge held that the Applicant met all the requirements for citizenship other than the residency requirement. He was 252 days short and she declined to apply section 15(1) and recommend that the Minister exercise discretion under section 5(3) or 5(4) of the Act. This issue only arose because the Applicant did not meet the residency requirement.

[3]                 By the time the appeal reached the Federal Court, the Respondent acknowledged in submissions that the Applicant had met the residency requirement and I allowed the appeal. My order which was dated September 1, 2004 (the "First Order") read as follows:

i)           The appeal is allowed and the Decision is hereby set aside.

ii)          The Respondent is to expedite its consideration of the Applicant's application for Canadian citizenship.

[4]                The First Order meant that the Applicant's citizenship papers were to be issued promptly.

[5]                By letters dated September 17, 2004 and November 9, 2004, the Respondent sought clarification of the First Order on the basis that the proceeding was a judicial review governed by section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7. The Respondent said that the only order I could make in the Applicant's favour was one which sent the matter back for redetermination by another citizenship judge on the basis of a reviewable error. This letter was signed by counsel who appeared at the hearing but her submission that the proceeding was a judicial review was at odds with the opening paragraph of her Memorandum of Fact and Law for the appeal which said: "this is an appeal under s. 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 and s. 21 of the Federal Court Act, R.S.C. 1985, c. F-7¼".

[6]                By letter dated November 19, 2004, I provided the clarification sought. I said that the proceeding was not an application for judicial review or a trial de novo. Rather, it was an appeal under section 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29 that it was brought by way of application under Rule 300 of the Federal Court Rules, 1998, SOR/98-106. I noted that there is nothing in those rules which precludes the receipt of new evidence on appeal.

[7]                Then counsel for the Respondent wrote again. This time she agreed that the matter had been an appeal brought by way of application but said that the evidence I relied on was "not only new, but also not in existence at the time the Citizenship Judge made her decision". She complained that "this was not an apparent issue at the citizenship appeal and neither party had the opportunity to speak to it". She said that, for this reason, she planned to bring a motion for reconsideration. As well, she asked me to issue the clarifying order I had offered to issue in my letter of November 19, 2004.

[8]                I therefore issued the order. It was dated February 18, 2005 (the "Second Order"). It read:

1.          The appeal is allowed.

2.          The Applicant's application for Canadian Citizenship is hereby granted.

[9]                On February 28, 2005 the Respondent brought this motion for a reconsideration on the following grounds:

(e)         The Court has allowed the appeal based on new evidence not before the Citizenship Judge at the time the Citizenship Judge had determined that the Applicant had not met the residency requirement of 1095 days;

(f)         Neither party at the hearing had notice that the Court would consider evidence not permitted by the Federal Court Rules regarding Applications made by way of Rule 300;

(g)        Neither party at the hearing had notice that the Court would grant the Applicant Canadian citizenship or on what basis; and

(h)        The Respondent did not make submissions on points (e), (f), and (g) because it had no notice that they were at issue.

Discussion

[10]            The new evidence I relied on was described in the following terms in the reasons for the First Order dated September 1, 2004 (the "Reasons"):

-            The Applicant has now met the residency requirement of 1095 days. This was acknowledged by counsel for the Respondent.

-            The Applicant had just graduated from Ryerson University with a degree in Mechanical engineering. This fact was not in dispute.

-            The Reserve requires the Applicant to be a Canadian citizen to continue his employment and has already given him two extensions of employment in the hope that his citizenship will be granted. This was not disputed.

-            The Reserve has not withdrawn its recommendation that the Applicant be granted citizenship.

[11]            As indicated, this was all new information which emerged during submissions by the self-represented appellant. No objection to his presentation was made by Respondent's counsel. Further, the new evidence met the tests for the acceptance of new evidence on appeal set out in Palmer v. Queen, [1980] 1 S.C.R. 759 at page 775.

[12]            Both parties knew that the Court was going to consider these facts. The Appellant offered them. The Respondent acknowledged their accuracy and never asked to make submissions.

CONCLUSION

[13]            Although appellate courts can send matters back to trial judges for redetermination if the circumstances warrant, the normal order is that appeals are allowed or dismissed and appropriate consequences follow. In this case there were no facts which justified a re-determination. Finally, although I was asked to make the Second Order, I am not persuaded that it is the Court's place to grant citizenship.

[14]            This motion for reconsideration is without merit and will be dismissed. An order will be made dismissing this motion, allowing the appeal and ordering Respondent to grant the Applicant citizenship forthwith and provide him with documentation confirming his Canadian citizenship on or before Friday May 6, 2005.

"Sandra J. Simpson"