Federal Court Decisions

Date: 19971126

Docket: T-9-97

     IN THE MATTER OF THE CITIZENSHIP ACT,

     R.S. 1985, c. C-29

     AND IN THE MATTER OF an appeal from

     the decision of a Citizenship Judge

     AND IN THE MATTER OF

     WING KEUNG LEE

                                             Appellant.

     REASONS FOR JUDGMENT

GIBSON J.:

[1]      The appellant appeals from a judgment of the Citizenship Court denying his application for a grant of Canadian citizenship.

[2]      The learned Citizenship Court Judge found that the appellant, who obtained landed immigrant status in Canada on the 6th of June, 1991, had failed to demonstrate an adequate knowledge of English or French as required by paragraph 5(1)(d) of the Citizenship Act and further, had failed to demonstrate an adequate knowledge of Canada and of the responsibilities and privileges of citizenship as required by paragraph 5(1)(e) of the same Act.

[3]      The decision letter provided to the appellant by the learned Citizenship Court Judge reads in part:

Pursuant to subsection 15(1) of the Citizenship Act, I have considered whether or not to make a recommendation for the exercise of discretion under subsection 5(3) or 5(4) of the Act. Subsection 5(3) of the Act confers discretion to the Minister to, among other things, waive on compassionate grounds, in the case of any person, the language and knowledge requirements you failed to meet. As to subsection 5(4) of the Act, it empowers the Governor in Council to direct the Minister to grant citizenship to any person in cases of special and unusual hardship or to reward services of an exceptional value to Canada.

I inquired at the hearing whether there were any circumstances that could justify me in making a recommendation such as:

a)      a mental disability;

b)      a physical disability or disease serve [severe] enough to impair the learning process;

c)      advanced age;

with respect to subsection 5(3).

Since you were unable to provide me with any evidence in that regard, I see no reason to make a recommendation under subsections 5(3) or 5(4).

[4]      At the hearing of this appeal, on the 5th of November, 1997, the appellant once again failed to demonstrate an adequate knowledge of English or French and an adequate knowledge of Canada and of the responsibilities and privileges of citizenship. However, his representative provided a very brief, handwritten note from a medical doctor indicating that the appellant did have medical difficulties that might impact on whether or not a recommendation under subsection 5(3) was warranted. I reserved my decision on the appeal to allow appellant, through his representative, to obtain and provide to the Court a more adequate explanation of the appellant's medical difficulties. A more adequate medical opinion has now been received.

[5]      In Re Khat,¹ Mr. Justice Strayer wrote:

There has been some division of opinion in this Court concerning the jurisdiction of the Court to make such recommendations [that is, recommendations under subsection 15(1) of the Act]. I respectfully agree with those judges who have found that the Court has no such jurisdiction. The appeal to this Court which is authorized under subsection 14(5) is an appeal "from the decision of the citizenship judge under subsection (2) ...", and the decision referred to in that subsection is a decision of the judge to approve or not approve the application. The power given to a citizenship judge in subsection 15(1) with respect to the exercise of discretion on compassionate grounds is that of making a recommendation to the Minister in this respect. This is not a "decision" under subsection 14(2). [footnoted references omitted]

I am in agreement with the reasoning of Mr. Justice Strayer and so indicated in Re Ko.² I find I have no jurisdiction to recommend the exercise of discretion under subsection 5(3) of the Act.

[6]      In the result, this appeal will be dismissed. It is for the appellant to consider whether he wishes to make a new application for citizenship. If he does so, he might wish to ensure that the medical opinion provided to this Court is placed before those considering any new application who have the authority to make an appropriate recommendation.

                             ____________________________

                                 Judge

Ottawa, Ontario

November 26, 1997

__________________

     ¹      (1992), 49 F.T.R. 252 (F.C.T.D.)

     ²      17 December 1996, [1996] F.C.J. No. 1653 (QL)