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NATURALIZATION OR CITIZENSHIP - Application for grant of citizenship

Thursday, August 29, 2019 @ 8:32 AM  

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Appeal by the Minister of Citizenship and Immigration from the granting of the three-year-old respondent’s application for judicial review and declaration that the respondent was a citizen of Canada. The respondent was born in the United States. His biological father, born in Malaysia while his father worked there as a university professor, was a Canadian citizen. His adoptive father was an American citizen. A citizenship officer determined the Crown servant exception was not applicable as the respondent’s grandfather was not employed by the government during the relevant period. She concluded the respondent did not meet the legislative requirements for citizenship. The application judge found the declaration of citizenship sought by the respondent was a finding of law, not fact, and was within his authority to grant. He found that as the respondent’s grandfather was serving abroad as a Crown servant at the relevant time, the respondent was a Canadian citizen as a matter of law. The application judge declined to certify a question of general importance regarding whether the Federal Court had the jurisdiction to issue a directed verdict or a declaration of citizenship.

HELD: Appeal dismissed. The application judge committed no error that permitted an appeal in the absence of a certified question. Status as a citizen of Canada by descent could be the subject of a declaration. It was the Citizenship Act, and not the Minister, that conferred citizenship by descent. A declaration of citizenship was not solely a declaration of fact. The appeal was quashed on the basis it was barred by section 22.2(d) of the Citizenship Act. Dissenting reasons were provided.

Fisher-Tennant v. Canada (Minister of Citizenship and Immigration), [2019] F.C.J. No. 816, Federal Court of Appeal, W.W. Webb, D.G. Near and J.B. Laskin JJ.A., July 16, 2019. Digest No. TLD-August26019010