Citizenship Policy (CP) Chapter 8 - Section 2 [Applicant appeal]

Citizenship Policy Canadian Citizens

Chapter CP 8 - Appeals

Section 2 - Applicant appeal

2.1 This section is about

the process for appeals filed by the applicant

2.2 Keep applicants' files in office

Keep the file for a non-approved applicant in the local office until either:

the citizenship judge receives a Notice of Application

180 days have elapsed.

2.3 If no appeal, send file to CPC-Sydney

If there is no appeal of a non-approval by the end of 180 days, send the applicant's file to CPC-Sydney for file retirement and fee refund, if applicable. Attach a covering note or tag indicating the date the applicant was provided with the letter of non-approval.

2.4 Procedure

Part I: Appeal commenced by applicant for citizenship
Procedure	Before April 25, 1998	After April 25, 1998
NOTICE OF APPEAL/OF APPLICATION	The applicant files the Notice of Appeal in the Federal Court. The Court then sends a copy of the Notice of Appeal to: Litigation Management (BCL); AND the citizenship judge who rendered the decision.	The applicant files the Notice of Application in the Federal Court. The applicant then serves the notice on the Department of Justice. (The Federal Court sometimes assumes responsibility for serving the notice.) The Department of Justice then notifies Litigation Management (BCL). BCL in turn informs the citizenship court.
PREPARATION AND CONTENT OF RECORD	The citizenship judge sends a copy of the file to the Federal Court and of the original file to BCL, attaching any correspondence exchanged with the Federal Court. The record must contain: a photocopy of the application, including a copy of all documents submitted by the applicant; a photocopy of the letter of refusal that was sent to the applicant by registered mail or that was given to him or her in person; a photocopy of the Citizenship Application Review form indicating the judge's decision; AND a photocopy of any other document that the judge has examined in order to render his or her decision.	The citizenship court, after being informed by BCL of the filing of the notice, prepares the record, putting it in order. Each page must be numbered on the top right, but care should be taken not to write in the top right corner, since that part of the page can be cut off when pages are photocopied. It is recommended that BCL's attention be drawn to any document of a confidential nature. The record must contain: a photocopy of the application, including a copy of all documents submitted by the applicant; a photocopy of the letter of refusal that was sent to the applicant by registered mail or that was given to him or her in person; a photocopy of the Citizenship Application Review form indicating the judge's decision; a photocopy of any other document that the judge has examined in order to render his or her decision; for further details on record content, please see APPENDIX I. If the applicant so requests, the citizenship court distributes, within 20 days of the service of the Notice of Application on the Department of Justice, certified copies of the record or the documents requested: to the Federal Court; to the applicant; to the Department of Justice; AND to BCL. If the applicant makes no such request, the citizenship court sends only a copy (not certified) of the record to the Department of Justice. Note: The citizenship court keeps the original record until the end of the appeal procedure. The CRS electronic file is part of the complete record. It may include any screen containing pertinent information that does not appear in the physical record. The physical record given to the Federal Court must contain the same documents that the citizenship judge used to render his or her decision.

2.5 Appeal heard

The Federal Court hears the appeal in the city closest to where the applicant resides. The applicant is notified in writing of the Federal Court decision. The decision is also communicated to the citizenship judge and the Minister. The Minister’s notice is forwarded to Director, Litigation Management (BCL), in Case Management Branch.

2.6 Appeal dismissed

When the Federal Court dismisses an appeal, the original non-approval decision of the citizenship judge stands. The local office is notified and the file is closed. Case Management Branch ensures the file is forwarded to CPC-S for file retirement.

2.7 Appeal allowed

When the appeal is allowed, the Federal Court rules that the applicant meets the requirements of the Act. Case Management officers ensure the file contains valid clearances and a valid citizenship certificate before forwarding the file to the local office. Citizenship may be granted by the Case Management officer or the local citizenship officer. The local office schedules the applicant for the taking of the oath of citizenship.

The approval of the application must be recorded in CRS and the file is forwarded to CPC-S for retirement once the oath is administered.

2.8 Appeal dismissed but Federal Court refers case back to Citizenship Judge for Reconsideration.

The Federal Court may dismiss an applicant or Minister's appeal but issue instructions to the citizenship judge or to the Minister to reconsider a file and recommend a grant under paragraph 5(3) or 5(4). Federal Court jurisprudence is divided on the issue of whether a federal court justice has the authority to instruct the minister to use ministerial discretion. In these cases, neither the citizenship judge nor the Minister are obligated to consider a waiver.

2.9 Procedures when Federal Court refers case back to original judge

In cases where a justice from the Federal Court dismisses the applicant's appeal but returns the file back to the original judge for further consideration the citizenship judge is free to make a new decision but not obligated to do so. Upon receipt of the Federal Court decision, the citizenship judge decides whether he/she wishes to change the original decision. Where the judge reviews the application but does not change the original decision, the client is notified in writing by the judge that the application was reconsidered under paragraph 5(3) or 5(4) and the non approval stands.

If the judge, after reviewing the file makes a recommendation for a waiver under 5(3):

Case Management Branch is informed.
a Case Analyst, as Ministers’ Delegate, makes the decision.
if the waiver is granted, Case Management Branch notifies the local office and ensures valid clearances are obtained.
the applicant is scheduled for the taking of the oath, by the local office, once the clearances and grant of citizenship are completed.

If the judge makes a recommendation for a waiver and Case Management Branch does not grant the waiver:

BCM notifies the judge in writing and provides the judge with the reasons for not granting the waiver.
the Minister’s delegate in BCM sends a letter notifying the client of the decision.
this letter will indicate that notwithstanding the Federal Court’s dismissal of the appeal and referral to judge for waiver, the Minister has not granted the waiver.
the letter will provide reasons for not granting the waiver.

Related topic: See chapter on waivers for guidelines.

2.10 Procedures when Federal Court refers case to Minister for use of discretionary powers.

In cases where a justice from the Federal Court dismisses the applicant’s appeal but refers the file to the Minister for use of discretion under section 5(3) or section 5(4), the Minister is free to consider but not obligated to consider the use of discretion. In these cases, the file is reviewed by a Case Analyst in BCM and not by a citizenship judge.

If the Minister’s delegate grants the waiver:

the applicant is notified in writing in writing by BCM of the grant under section 5(3).
Case Management Branch notifies the local office and ensures valid clearances are obtained.
the applicant is scheduled for the taking of the oath, by the local office, once the clearances and grant of citizenship are completed.

If the Minister’s delegate does not grant the waiver:

the Minister’s delegate in BCM sends a letter notifying the client of the decision.
this letter will indicate that notwithstanding the Federal Court’s dismissal of the appeal and referral to Minister for waiver, the Minister has not granted the waiver.
the letter will provide reasons for not granting the waiver.

2.11 Appeal after 60-day limit

If an applicant appeals after the 60-day appeal period, the Federal Court asks for a copy of the receipt for the registered letter sent to the applicant. The Federal Court determines if the appeal was filed within the time period before requesting a certified copy of the file.

Send a copy of the proof of registered mail receipt to the Federal Court. Do not send a certified copy of the file until the citizenship judge receives a Notice of Application.

2.12 Applicant re-applies during appeal

An applicant can make a subsequent application for a grant of citizenship while the first application is being appealed.

The second application is processed in the usual way. It is not expedited nor is it held pending the Federal Court’s decision on the appeal.

If the second application is approved, advise the applicant to withdraw the appeal of the first application.

Where the Federal Court allows the appeal on the first application before the second application is processed, the second application may be considered abandoned.


		Last Modified: 2002-10-01	Important Notices