Some clarifications/corrections, and further observations regarding the appeal process:
Above I referred to a "right of appeal." Technically the
SCCA (Bill C-24) amended the
Citizenship Act so that, since August 1, 2014, it is a right to
seek leave to appeal.
This is prescribed in
Sections 22.1 and 22.2 of the Citizenship Act (this should link).
This makes a significant difference in what cases go to a hearing in the Federal Court, and thus which appeals are reflected in the officially published decisions.
Moreover, Section 22.1(3) gives the Minister the
right of appeal as to a decision by a Citizenship Judge, whereas otherwise parties only have a right to seek leave to appeal.
Thus, for example, in the
MOHAMMAD WASEF ABU-TALEB case, which I referenced and linked above, the PR applicant was denied approval by the CJ and then he ". . . was granted leave to have [the decision] judicially reviewed," and then was given a hearing in Federal Court to consider the merits of his appeal. This is the only one among the last nine citizenship application cases published in 2015 which is not an appeal by the Minister.
In contrast, in the
SUNG HOON GOO case, the Federal Court simply refers to the Minister's application "to set aside the decision of a citizenship judge."
Thus, this probably explains why eight of the last nine published decisions in 2015 are appeals by the Minister. When the Minister appeals, there is a hearing and a formal decision gets published. When applicants seek leave to appeal, leave is probably being denied many of them, no Federal Court hearing.
That is, while I do not know for sure what is actually occurring in the current appeal process, it appears that many or most or at least a significant number of PR applicant requests for leave to appeal are being summarily denied, that is, without there being a hearing. In contrast, the Minister's appeals (of CJ decisions) go to a hearing.
Thus there are more published decisions in cases appealed by the Minister.
This was not apparent to me until I revisited the last dozen or so cases in 2015. I have not seen any commentary about this, not from the Canadian Bar or in coverage of the lawsuits regarding Bill C-24 filed by various lawyers and associations, including either the Galati or Waldman litigation.
I am not a Canadian lawyer, so I am far from sure what to make of this. Except it strikes me as rather unfair.
In particular, it is disconcerting to me that the Minister has a broader right to review than those individuals who are denied approval by a CJ. This, it seems to me, is something to be challenged. But the way in which the
Citizenship Act is currently structured there is no avenue for challenging this. The PR who is denied leave to appeal is precluded, by section 22.1(2)(d), from further challenging the decision to deny leave. (In contrast, if leave is granted, there is the possibility of a further appeal to the Federal Court of Appeal if the Federal Court justice certifies a "serious question of general importance.")
Indeed, frankly I do not understand how it is fair that the Minister, who largely controls the information received by the Citizenship Judge, who has a full opportunity to submit information and argument to the CJ, is provided greater access to review than those individuals who are the subject of the CJ's decision, the vast majority of whom probably go to the CJ hearing without the advice let alone representation of legal counsel.
Beyond the imbalance of procedural rights itself, there are additional important ramifications:
Indeed, this change dramatically affects the nature and scope of information available to those who, like myself, look at the Federal Court decisions to learn about what issues are addressed and how they are decided in residency cases. As I have otherwise noted, I have read nearly every single citizenship application decision decided and published in the last five years, or so, and a large number of those decided prior to that. This, I think, constitutes an incredibly important body of information about how the process works, and it has been particularly illuminating in regards to what factors loom large in cases where CIC challenges the applicant's declarations of presence.
Going forward, it appears that the majority, perhaps the vast majority of applications for leave to appeal by PR applicants will be summarily denied, no hearing, no published decisions. The public will be denied access to a great deal of information about what really matters in determining residency cases.
The legacy impact of what Harper's government wrought in terms of reducing government transparency is undoubtedly greater, perhaps even far greater, than many of us railed about during the last many years.
This is not so much about unintended consequences. My sense is that when Harper's inner circle drafted Bill C-24 they were probably well aware of this consequence and intended it. It is about undisclosed objectives, and illustrates why it is so important that major legislation, like Bill C-24, go through a thorough vetting process, allowing broad public consultation, extensive and extensive debate, before it is voted on. All that was, at the least, truncated by the Harper government, and to some extent consultations, committee studies, and debate were simply shut down.
I recognize there are many other aspects to changes made while Harper was Prime Minister that many participants here find problematic. But to my perspective, this is one of the more disconcerting changes made. This has a direct impact on the fairness of the process. There are various opinions about what the requirements should be, whether the presence requirement should be 3/4 or 4/6 for example. There are advantages and disadvantages for certain immigrants respectively. One offers a faster path to citizenship (the 3/4 rule) and the other allows for significantly more flexibility (the 4/6 rule).
But from my perspective provisions which directly limit or reduce access to fair procedure are a separate and more problematic sort of beast. Without fair process, the integrity of the system is undermined and everyone's rights are at risk of being compromised.
