Federal Court Decisions

Federal Court

Cour fédérale

 

Date: 20101105

Docket: T-1075-10

Citation: 2010 FC 1094

Ottawa, Ontario, November 5, 2010

PRESENT:     The Honourable Mr. Justice Boivin

 

 

BETWEEN:

 

SCHNEUR ZALMAN RABIN

Applicant

 

and

 

MINISTER OF CITIZENSHIP

AND IMMIGRATION CANADA

 

Respondent

 

 

 

REASONS FOR JUDGMENT AND JUDGMENT

 

 

[1]               This is an application for judicial review by the applicant, Schneur Zalman Rabin (hereinafter the applicant), pursuant to section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7. The applicant challenges the decision rendered by Canadian Citizenship Officer, Jo-Anne           Mac Donald (the Citizenship Officer), dated January 25, 2010, denying the applicant’s application for citizenship on the basis of statutory requirements set forth in the Citizenship Act, R.S.C. 1985,   c. C-29 (the Act).

 

[2]               The applicant was self-represented at the hearing before this Court.

 

Factual Background

[3]               The applicant’s mother’s father, Moshe Polter, was born in Belgium on September 8, 1938. In 1951, he immigrated to Canada as a permanent resident. On November 19, 1957, Mr. Polter became a naturalized Canadian citizen.

 

[4]               On December 18, 1960, Mr. Polter married Carol Tenembaum and thereafter settled in Detroit, Michigan (USA). From this union was born the applicant’s mother, Yaffa Finkel Polter, on April 28, 1963.

 

[5]               In 1957 Mr. Polter became a naturalized Canadian citizen. On July 9, 1973, Mr. Polter became a naturalized United States citizen. As a result, Mr. Polter ceased to be a Canadian citizen.

 

[6]               The applicant’s father, Yerachmiel Rabin, was born in Sydney, Australia, on June 29, 1956. In 1981 he married the applicant’s mother, Yaffa Finkel Polter.

 

[7]               On January 8, 1983, the applicant was born in Detroit, Michigan (USA).

 

[8]               Between September 2000 and July 2003, the applicant was in Canada where he was a student at the Rabbinical College of Canada in Montreal. Between July 2003 and August 2008, the applicant made several visits to Canada. On August 26, 2008, the applicant and his family moved to Montreal where he worked as a spiritual counsellor at the Rabbinical College of Canada.

 

[9]               In May 2009, the applicant and his mother applied for proof of Canadian citizenship. They mailed two (2) applications in the same envelope.

 

[10]           In March 2010, the applicant’s mother received her proof of Canadian citizenship, along with the Citizenship Officer’s decision of January 25, 2010 indicating that a citizenship certificate cannot be issued to her son.

 

[11]           In June 2010, the applicant renewed his visitor record until July 31, 2013 to work as a spiritual counsellor at the Congregation Ezrat Achim in Montreal.

 

[12]           On July 7, 2010, the applicant filed an application for judicial review of the decision that dismissed his application for a citizenship certificate.

 

Impugned Decision

[13]           In her letter dated January 25, 2010, the Citizenship Officer concluded that the applicant did not meet the requirements set forth under the Citizenship Act. More specifically, the Citizenship Officer determined that the applicant did not meet the requirements of paragraph 3(1)(b) of the Act and is excluded from citizenship by descent by virtue of paragraph 3(3)(a) of the Act.

 

Issues

[14]           The issues that arise in this judicial review are the following:

1.    Did the Citizenship Officer render an unreasonable decision and commit a reviewable error?

 

2.    Was there a breach of procedural fairness in the circumstances?

 

Relevant statutory provisions

[15]           The relevant paragraphs of Section 3 of the Citizenship Act, R.S.C. 1985, c. C-29, read as follows:

 

Standard of review

[16]           With regards to the applicable standard of review to decisions on applications for a citizenship certificate, Justice Martineau in Azziz v. Canada (Minister of Citizenship and Immigration), 2010 FC 663, [2010] F.C.J. No. 767, at paras 27-28, held the following:

[27] Having analyzed the standard of review based on the usual tests, I am of the opinion that the correctness standard applies to the questions of law raised in this case, while the reasonableness standard applies to the findings of fact regarding which the analyst has recognized expertise. The questions of procedural fairness or bias are subject to the standard of correctness.

 

[28] In this respect, an analyst's decision concerning the sufficiency of the evidence submitted by an applicant to confirm the citizenship of a person is reasonableness (Worthington v. Canada, 2008 FC 409, [2009] 1 F.C.R. 311 at paragraph 63).

[…]

 

[17]           In the present case, the Citizenship Officer’s decision must therefore be reviewed on the standard of reasonableness.

 

[18]           As for the issues related to questions of procedural fairness raised by the applicant, they are to be reviewed according to the standard of correctness (Azziz).

 

Analysis

Statutory provisions

[19]           The interpretation of section 3 of the Act - more particularly paragraphs 3(1)(b), 3(1)(g) and 3(3)(a) - is at the heart of this judicial review application.

 

[20]           The applicant contends that because his mother is now considered a citizen by birth, citizenship should extend to him automatically and alleges that the limitation of citizenship by descent to the first generation born outside Canada to a Canadian parent is inapplicable to his case. The respondent disagrees and argues that the wording and intent of the Act does not support the applicant’s contention.

 

[21]           The applicant argues that, by virtue of paragraph 3(1)(b) of the Act, his application for proof of citizenship should have been approved. Paragraph 3(1)(b) reads as follows:

 

 

[22]           However, paragraph 3(1)(b) cannot be read in a vacuum. The legal effect of applying for citizenship by virtue of paragraph 3(1)(g) – which is the case for the applicant’s mother - triggers paragraph 3(3)(a) and consequently the non-applicability of paragraph 3(1)(b) to the applicant. The introductory wording of subsection 3(1) of the Act is clear: Subject to this Act (…), as is the wording of paragraph 3(3)(a): Subsection (1) does not apply to a person born outside Canada (...).

 

[23]           The applicant’s mother was born in 1963 outside of Canada (Detroit, Michigan, USA) of a Canadian parent but she was never registered as a Canadian citizen prior to the applicant’s birth in 1983 nor before the coming into force of Bill C-37 (An Act to Amend the Citizenship Act) on April 17, 2009, which limits citizenship by descent to the first generation born outside Canada to a Canadian parent. 

 

[24]           Following the coming into force of Bill C-37 on April 17, 2009, the applicant’s mother was entitled to apply for proof of citizenship pursuant to paragraph 3(1)(g) of the Act. Paragraph 3(1)(g) of the Act reads as follows:

 

[25]           The applicant’s mother - born in 1963 to a Canadian father (Mr. Moshe Polter) - thus applied for proof of citizenship in May 2009 and received it in March 2010. As per paragraph 3(7)(e) of the Act, the applicant’s mother is deemed to be a citizen from the time she was born.

 

[26]           Of considerable importance in the interpretation of the relevant statutory provisions of the Act in the case at bar is paragraph 3(3)(a) which was introduced by Bill C-37 under the heading “Not applicable – after first generation”. Paragraph 3(3)(a) states the following:

 

[27]           Paragraph 3(3)(a) thus expressly excludes from citizenship by descent persons born outside Canada if, at the time of their birth or adoption, one of their parents is a Canadian citizen under paragraphs (1)(b), (c.1), (e), (g), or (h) of the Act. The evidence establishes that the applicant’s mother’s situation is covered by paragraph 3(1)(g): she was not a citizen prior to the coming into force of Bill C-37 on April 17, 2009, but was eligible to apply for proof of citizenship under paragraph 3(1)(g) of the Act which she did in May 2009. By virtue of paragraph 3(3)(a), paragraph 3(1)(b) of the Act does not apply to the applicant and, as a result, the limitation of citizenship by descent to the first generation born outside Canada to a Canadian parent rule applies to the applicant.

 

[28]           The applicant also raised an argument based on the legal theory of retroactivity by which he should benefit retroactively form his mother’s citizenship. The Court is of the view that the relevant statutory provisions of the Act - paras 3(1)(b), 3(1)(g) and 3(3)(a) - read together cannot sustain the applicant’s retroactivity argument. The Court is unable to find any intent or clear indication in the Act with respect to retroactivity as it relates to the applicant in the case at bar. In accordance with the principle of the rule of law, the applicant’s retroactivity argument is unsustainable.

 

[29]           In a judicial review proceeding, the role of the Court is not to substitute its opinion to the one of the Officer. In other words, the Court will not intervene if the Citizenship Officer’s decision is reasonable. In the case at bar, and following a review of the evidence and the relevant provisions of the Act, the Court finds that the Citizenship Officer considered the applicant’s family background and applied the relevant statutory provisions of the Act to the relevant facts. The Court is therefore of the opinion that the decision is reasonable as it falls in the range of possible, acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.R. 190). It follows that the intervention of this Court is not warranted.

 

 

 

 

Procedural fairness

[30]           The applicant also alleges that there was a breach of procedural fairness in the circumstances because Citizenship and Immigration of Canada (CIC) failed to send him a direct response and also failed to advise him of the terms of appeal.

 

[31]           On that point, although it would have been more appropriate for CIC to send a direct response to the applicant, in this case, the Court finds that the applicant did not suffer any prejudice for not having received a response from CIC in March 2010, at the same time as his mother. Any potential prejudice was alleviated by the fact that the respondent refrained from raising any preliminary objections based on the fact that the delay had expired when the applicant filed its application for judicial review (see Motion Record (by the Respondent) for an extension of delay to the Tribunal’s Record). The applicant was accordingly not precluded from bringing forward a judicial review application. The Court finds therefore that, in these circumstances, there has been no breach of procedural fairness.

 

[32]           With respect to the absence of the terms of appeal in CIC’s letter, the Court agrees with the respondent that CIC had no legal obligation to advise the applicant of the terms of appeal since this case is an application for judicial review and not an appeal from a Citizenship Judge’s decision made under subsection 14(5) of the Act.

 

[33]           The Court sympathizes with the applicant in light of the circumstances having led him to file this application for judicial review. The Court observes that the applicant is not precluded from applying for permanent residence in Canada.

 

[34]           For all these reasons, the Court dismisses this application for judicial review.

 

 

 

 

JUDGMENT

 

THIS COURT ORDERS AND ADJUDGES that the present application for judicial review be dismissed.

 

 

“Richard Boivin”

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

DOCKET:                                          T-1075-10

 

STYLE OF CAUSE:                          SCHNEUR ZALMAN RABIN

                                                            v. MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA

 

 

 

PLACE OF HEARING:                    Montréal, Quebec

 

DATE OF HEARING:                      October 27, 2010

 

REASONS FOR JUDGMENT:       BOIVIN J.

 

DATED:                                             November 5, 2010

 

 

 

APPEARANCES:

 

Schneur Zalman Rabin	FOR THE APPLICANT (ON HIS OWN BEHALF)
Simone Truong	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Myles J. Kirvan, Deputy Attorney General of Canada Montréal, Quebec

FOR THE RESPONDENT