Chapter CP 8 - Appeals

Section 3 - Ministerial appeal

3.1 This section is about

the process for appeals filed by the Minister

3.2 Local office initiates appeal

The officer granting citizenship is responsible for ensuring that all requirements of the Act have been met. An officer may not grant citizenship where a judge approves an application and the officer believes the judge may have made an error. In these cases, the officer should bring the file and reasons for not granting citizenship to their manager’s attention.

3.3 Forward file to Case Management Branch

The manager forwards the complete original file to Case Management Branch with a covering note explaining why the local office feels the Minister may wish to exercise the right of appeal. The note must clearly indicate the date of the judge’s decision and the date the appeal period expires.

3.4 File reviewed by Legal Services

The advice of legal counsel is sought and the legal opinion forms part of the case file. Should legal services agree that an appeal is warranted, the appeal is filed with the Federal Court on behalf of the Minister.

3.5 Treat Ministerial appeals as urgent

An appeal must be filed with the Federal Court of Canada–Trial Division within 60 days of the date of the judge's decision to approve the application. The local office must therefore forward the file to Case Management immediately after the judge’s decision is rendered so that the appeal may be filed in time.

3.6 Procedures (Ministerial Appeals)

3.7 Appeal heard

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

3.8 Appeal dismissed

When the minister’s appeal is dismissed, the Federal Court rules that the judge made a correct decision in determining 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.

3.9 Appeal allowed

When the Federal Court allows a ministerial appeal, the original approval decision of the citizenship judge is reversed. The local office and the applicant are notified that citizenship will not be granted. The applicant is free to apply for citizenship at any time but may not appeal the decision of the Federal Court. Case Management Branch ensures the file is forwarded to CPC-S for file retirement.

3.10 Additional information

The following is additional information concerning certain aspects of the appeal process, both for cases in which the appeal is commenced by the applicant and for those in which it is commenced by the Minister.

Appeal de novo

Since April 25, the Department of Justice argues before the Federal Court that the appeal is not de novo - that is, that only the evidence examined by the citizenship judge is admissible in court. Previously, the Federal Court heard any new evidence presented by the Minister or the applicant.

Application of rules in force prior to April 25, 1998

The rules in force prior to April 25, 1998, may still apply to appeals commenced before and heard after that date. However, in such cases, the Federal Court generally applies the rules that are in the favour of the applicant for citizenship.

Time frames

The time frame starts on the day following the performance of a given act (for example, receipt of a Notice of Application). When the last day of a time frame falls on a Saturday or statutory holiday (Sundays and religious and civic holidays), the deadline is moved to the following working day. For example, a Notice of Application is received on March 2. The time frame is 20 days. It therefore starts on March 3 and ends on March 22. If March 22 falls on a Saturday, the deadline is moved to Monday, March 24.

3.11 Appendix : Preparation of the Certified Tribunal Record

The Certified Tribunal Record (CTR) contains photocopies of only those documents related to the decision. Documents received after the decision was taken are not relevant to the decision being challenged in the Federal Court and should not be included in the CTR.

Examples of sensitive documents which should be protected from disclosure, include:

• solicitor-client privileged communications;
• information obtained in confidence from governments/institutions of foreign states or from international organizations of states (or their institutions) which "would be injurious to national security or to the safety of persons" (see: s. 82.1(10) of the Immigration Act);
• materials which the government can object to disclosing pursuant to the Canada Evidence Act on the grounds of:

a) "a specified public interest" (s.37);

b) injury "to international relations or national defence or security" (s.38);

c) being "a confidence of the Queen’s Privy Council for Canada" (s.39).

If any material in the file appears to fall into any of the above categories, do not create or distribute the CTR until you have discussed these documents with both BCL and the litigator, so an informed decision can be made on how best to proceed. Depending on which of the 3 categories the documents fall into, a different procedure must be followed to maintain their confidentiality from disclosure:

• solicitor-client privileged communications (e-mails, letters, copies of draft affidavits, legal opinion etc.) can be protected from disclosure by the litigator writing to the Court, pursuant to the Rule 1613(2), informing the Court that objection is being made to the production of documents by solicitor-client privilege;
• s.82.1 (10) materials are protected by litigation counsel making an application to the Court seeking an order permitting the non-disclosure of such information; the Court will determine if it must be disclosed or not;
• section 37 and 38 Canada Evidence Act materials again must be protected by an application by litigation counsel to the Court, supported by "A Minister of the Crown" or other interested person certifying orally or in writing to the Court that the information should not be disclosed and objecting to its disclosure; the Court will determine if it must be disclosed or not (s.39 information is protected without the necessity of an application to the Court but still requires a Minister of the Crown or the Clerk of the Privy Council to object to the disclosure by certifying such objection in writing).

On occasion "snitch" letters are received by offices advising of some unfavourable information concerning the applicant. These letters may contain personal information about the person providing the information and should not be divulged or edited before disclosure. It is advisable to discuss with BCL and the litigator these types of materials prior to releasing such material through distribution of CTR.

Litigation counsel should take action to secure protection from disclosure of this kind of information. It is crucial to carefully review all the documents and information in your file before preparing the CTR, immediately bringing to the attention of BCL and the litigator documents or information which we may wish to make known in the CTR.

The Citizenship officer must send a letter to the Federal Court certifying that the CTR is a true copy of the originals on file, along with the record. A copy of this letter is provided to Counsel for the Applicant when the Minister is the appellant, and to Counsel for the Respondent if a copy of the CTR has been requested. The certifying officer will ensure that the original file, and the certified copies are legible and complete.

The CTR must be numbered and bound. Numbering (in black pen on the upper, right-hand corner of each page) begins with the covering letter certifying that the CTR is a true copy of the original file; this letter is page ONE. You can bind the CTR in any way that makes it SECURE. The preparation of the CTR is NOT a trifling clerical task. Errors may have grave consequences.